United States District Court, N.D. California
JOSE A. SILVA, Petitioner,
TIM JOHNSON, Warden, Respondent.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND
DENYING CERTIFICATE OF APPEALABILITY
GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE
Jose A. Silva, a state prisoner currently incarcerated at
Central Valley Modified Community Correctional Facility,
brings the instant pro se habeas action under 28
U.S.C. § 2254 to challenge his 2014 conviction and
sentence rendered in the Santa Clara County Superior Court
involving sexual offenses against his former
girlfriend’s daughter, Victoria Doe. Having read and
considered the papers filed in connection with this matter
and being fully informed, the Court hereby DENIES the
petition for the reasons set forth below.
California Court of Appeal summarized the facts of
Petitioner’s offense as follows. This summary is
presumed correct. See Hernandez v. Small, 282 F.3d
1132, 1135 n.1 (9th Cir. 2002); 28 U.S.C. § 2254(e)(1).
In the fall of 2011, 13-year-old Victoria Doe lived in an
apartment with her mother and defendant. Defendant and
Victoria’s mother were dating.
On October 31, 2011, Victoria fell asleep in her Halloween
costume. Victoria woke up and “somebody” was
“touching” her. She testified that she had no
clothes on, and the person had their fingers in her vagina.
Victoria moved, and the person walked out of her bedroom.
Victoria went to the bathroom and cried. When she left the
bathroom, she saw defendant sleeping on the couch with the
Victoria thought this was unusual because defendant did not
sleep with the television on.
Victoria testified that defendant subsequently touched her
“multiple times.” She explained that the
incidents of touching “all blurred together because
they are mostly the same.” During the incidents,
Victoria would wake up, and defendant would be there putting
his fingers inside her vagina. On some occasions, defendant
would also rub and grab Victoria’s breasts. During one
incident, defendant grabbed Victoria’s hand and placed
it on his penis. During another incident, defendant tried to
put his penis inside Victoria’s vagina. Victoria
testified that she was “scared” and “just
froze” on the occasions when defendant touched her. The
last time defendant touched Victoria’s vagina was on
January 8, 2012.
Victoria testified that defendant put his fingers inside her
vagina “at least 15 to 20” times. On
cross-examination, when asked if there could have been less
than 15 or 20 incidents of touching, Victoria testified:
“It may have been less; it may have been more.”
On redirect examination, Victoria testified that the
“absolute minimum” number of times defendant put
his fingers in her vagina was “ten times.”
Victoria told three friends that defendant was touching her.
One of those friends encouraged Victoria to report the
touching. On January 10, 2012, Victoria reported the touching
to an official at her school. Police came to Victoria’s
school to interview her.
Victoria made two pretext phone calls to defendant on January
10, 2012. During the first call, Victoria said to defendant,
“[Y]ou’ve been coming into my room and stuff, you
know, and I think I might be pregnant.” Defendant
responded, “I’ve never done anything further than
what I’ve done.” Defendant also said,
“I’ve never, you now, put anything inside of
you.” Victoria said that she was “not completely
sure how you get pregnant, ” and defendant responded,
“I’ve never, ever done anything other than touch
you.” Victoria asked defendant what he had touched, and
defendant replied, “Like your breasts. Well I’ve
never done anything else.” When Victoria asked
defendant why he was touching her breasts, defendant stated:
“Because I get fuckin’ drunk, I’m sorry.
I’ll, I promise I’ll never fuckin’ do it
again. I fuckin’ get so stupid. And you’re
actin’ like you fuckin’ never fuckin’, you
know, messed around with me, when I didn’t
fuckin’ wanna fuck around.” Victoria asked,
“Does my mom know?” Defendant responded,
Victoria’s behavior changed after she reported the
touching. She stopped going to school, and she started
drinking alcohol and taking pills. Between June 2012 and
February 2014, Victoria committed several felonies, including
an auto theft, a residential burglary, and two second degree
The Defense Evidence
Defendant testified on his own behalf. He denied molesting
Victoria. He testified that he never touched Victoria’s
vagina, never touched her breasts inappropriately, and never
forced her to touch his penis.
Defendant testified that Victoria called him names and hit
him. When Victoria hit him, he would hit her back. He
testified that he hit various parts of Victoria’s body,
including “her boob.” When defendant used the
word “touch” in the pretext call, he was
referring to hitting Victoria. He explained that he believed
Victoria’s aunt was listening in on the call, he did
not want to make the aunt angry, and he thought the word
“touch” was a “less aggressive word”
than the word “hit.”
Defendant denied touching Victoria on Halloween night. He
explained that on Halloween night he was preparing for his
young daughter’s birthday party while Victoria was in
her room. Defendant denied touching Victoria on January 8. He
explained that on that date he was visiting his sister and
did not return home until 10:30 or 11:00 p.m.
Defendant’s sister testified that defendant visited her
on January 8, 2012.
People v. Silva, No. H041474, 2017 WL 1229745, *1-2
(Cal.Ct.App. Mar. 30, 2017).
October 4, 2012, the Santa Clara County District Attorney
filed an information initially charging Petitioner with five
counts of lewd or lascivious conduct on a child under the age
of fourteen by force, violence, duress, menace, and fear,
pursuant to California Penal Code § 288(b)(1). 1CT
155-159. An amended information filed on August 12, 2014
revised the charges against Petitioner to five counts of lewd
or lascivious conduct on a child under the age of fourteen,
pursuant to California Penal Code § 288(a). 1CT 252-256.
a jury trial, a Santa Clara County jury convicted Petitioner
of all five counts on August 20, 2014. 2CT 403-407, 409-410.
On September 19, 2014, the trial court sentenced Petitioner
to sixteen years in prison. 2CT 474-479.
filed a timely appeal and argued that the unanimity
instruction, along with the trial court’s failure to
specifically instruct on “the principle of
generic-testimony unanimity, ” violated his right to
due process by reducing the prosecution’s burden of
proof. Silva, 2017 WL 1229745, at *2. On March 30,
2017, the California Court of Appeal rejected
Petitioner’s claims and affirmed the judgment of
conviction. Id. at *2-4.
14, 2017, the California Supreme Court denied review.
Resp’t Ex. 5. Petitioner did not seek collateral review
in the state courts.
September 17, 2018, Petitioner filed the instant habeas
action in this Court. Dkt. 1. Petitioner raises the same
claims he raised on direct appeal. Id. at
October 4, 2018, this Court issued an Order to Show Cause.
Dkt. 6. On December 3, 2018, Respondent filed an Answer. Dkt.
11. On January 7, 2019, Petitioner filed a one-page document
entitled, “Traverse In Support of Answer, ” in
which he states that he “has no Traverse to contend
with the Respondent’s Answer, but truly wishes th[at]
the Court does not dismiss the case and [he] is given a fair
hearing.” Dkt. 13. The matter is fully briefed and ripe