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Silva v. Johnson

United States District Court, N.D. California

September 25, 2019

JOSE A. SILVA, Petitioner,
TIM JOHNSON, Warden,[1] Respondent.



         Petitioner 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.[2] 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.


         The 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).

         The Prosecution’s Evidence

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 television on.
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, “No.”
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 burglaries.
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).


         On 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.

         Following 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.

         Petitioner 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.

         On June 14, 2017, the California Supreme Court denied review. Resp’t Ex. 5. Petitioner did not seek collateral review in the state courts.

         On 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 5.[3]

         On 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 for adjudication.

         III. ...

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