United States District Court, E.D. California
FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF
PETITION FOR WRIT OF HABEAS CORPUS
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
December 16, 2015, Petitioner was convicted by a jury in the
Tulare County Superior Court of two counts of committing a
forcible lewd act upon a child under fourteen and one count
of showing or sending harmful matter to seduce a minor. (1
151-53, 170). Petitioner was sentenced to an imprisonment
term of eleven years. (1 CT 170). On March 13, 2018, the
California Court of Appeal, Fifth Appellate District affirmed
the judgment. People v. Oquita, No. F073234, 2018 WL
1281971 (Cal.Ct.App. Mar. 13, 2018). On May 16, 2018, the
California Supreme Court denied the petition for review.
16, 2019, Petitioner filed the instant federal petition for
writ of habeas corpus. (ECF No. 1). On July 22, 2019,
Respondent filed an answer. (ECF No. 14). To date, Petitioner
has not filed a traverse, and the time for doing so has
Victim M.H., who is defendant's nephew, was 13 years old
at the time of the offenses committed against him and at the
subsequent trial. M.H. testified that in early August 2015,
he and defendant left El Centro for Sanger to visit family.
Defendant previously lived with M.H.'s family and M.H.
testified that prior to this trip, they were close and had a
After they departed, defendant began talking about sexually
explicit topics, including having sex with men and women,
engaging in oral sex and hiring prostitutes. Defendant also
talked to M.H. about defendant's penis, he had
“lube” with him and he told M.H. he had “a
lot [of condoms] in his luggage.” M.H. alerted his
mother by phone that things were “strange” and
she began to call M.H. every 30 to 60 minutes. As they
traveled, M.H. was unaware of their location because
defendant would tell him one thing, but M.H. would see road
signs that said another. At one point, defendant told M.H. to
tell his mother they were staying in Pasadena with friends
and not to tell her they were staying in a motel. When they
stopped at a restaurant to eat, M.H. called his mother from
the restroom and told her what defendant was saying. He also
told her that defendant told him to lie to her.
M.H. testified that in the car, defendant kept grabbing his
own penis and rubbing it. He also kept talking about sexual
things to M.H. M.H. stated he and defendant had never had a
conversation like that before and while he had not previously
felt uncomfortable around defendant, this conversation made
him very uncomfortable.
M.H. also testified he saw defendant take pills several
times. One time defendant crushed the pill and ate it.
Another time, he sent M.H. inside to pay for gasoline and
told M.H. “he couldn't get [out] because he had [a]
boner.” As M.H. was returning to the car, he saw
defendant take another pill. Defendant continued to rub
himself and talk about sexual things.
M.H. testified defendant told him that by the end of the trip
he was going to have several hundred dollars. After first
telling M.H. they were going to stop in Pasadena, defendant
said they were about 30 minutes from Sanger but were going to
stop at a motel because he was tired, although he did not
appear to be tired to M.H. Defendant told M.H. he was going
to do something for defendant and when M.H. asked what
defendant meant, defendant said he would see. Defendant also
told M.H. he was going to help defendant do something before
defendant went to sleep and defendant would give him another
$100 in the morning. Defendant told M.H. not to say anything
about their location, the motel, what defendant was saying or
the things defendant wanted to do.
M.H. expected the motel room to have two beds, but it only
had one. M.H. testified he got underneath both blankets on
the bed. Defendant told him they were both going to shower
because he wanted M.H.'s “butt to be clean.”
M.H. responded that he did not need a shower and he told his
two sisters by text what was happening. M.H. had told his
mother he and defendant were at a motel and she called
defendant, who was then in the bathroom taking a shower.
Defendant eventually came out of the bathroom with only a
towel wrapped around him. He laid down next to M.H. on the
bed and took off his towel, exposing his naked body. M.H.
testified that when defendant got under the blankets, he got
back on top of the blankets. Defendant then moved the
blankets out of the way.
Defendant pulled M.H. closer to him, as if to cuddle with
him. M.H. kept pulling away. Defendant grabbed M.H.'s
hand and moved it toward defendant's penis approximately
three times, but M.H. pulled his hand away. Defendant also
put a $100 bill under his penis and told M.H. to get it, but
M.H. did not do so. Defendant put his hand behind M.H.'s
head and pushed it down toward defendant's penis.
Defendant kept telling him, “[J]ust a little, ”
which M.H. interpreted to mean engage in oral sex.
At first, the news was on the television, but, after
defendant showered, he changed the channel to something
pornographic. Defendant kept fondling his own penis and
telling M.H. to watch the pornographic movie with him, but
M.H. declined to do so.
M.H.'s mother called him again and he then told defendant
he needed to charge his phone. Defendant directed M.H. to use
the charger in the car and he unlocked it for M.H. Defendant
then winked at M.H., said he had to take care of some
business and went back inside the motel room. When M.H. told
his mother what was going on, she told him to run and call
911. M.H. then ran and hid behind a green shipping container
near a gas station. As he was waiting for police to arrive,
he saw defendant drive by twice.
M.H.'s mother, L.G., testified she lives in El Centro and
defendant is her uncle. She explained she, defendant and M.H.
had planned to travel to Sanger together, but she was unable
to go because of a medical appointment. Defendant used to
live with her, and M.H. would sometimes go to the store with
him, but the trip to Sanger was the first long trip M.H. had
taken alone with defendant. L.G. testified she had a lot of
confidence in defendant and trusted him to take care of her
L.G. testified that after defendant and M.H. left on their
trip, something M.H. told her over the phone made her
uncomfortable. As a result, she talked to M.H. many times
during the trip. She also talked to defendant to distract him
and she sometimes spoke with both of them at the same time on
two separate phones, one on each ear.
At one point, defendant told L.G. they were in Pasadena. She
told M.H. to look for road signs, but he was very nervous and
unable to tell her where they were because defendant
“was having a strange conversation.” L.G.
testified defendant never told her they were staying at the
motel, but M.H. did. She told M.H. to be careful and watch
his uncle, and to run and call the police if he felt fearful
or in danger.
Tulare County Sheriff's Deputies Sara Olmos and Jerry
Diaz testified. Olmos testified that she recovered from
defendant's travel bags cell phones, five packages of
blue, individually packaged pills labeled Edegar and two
packages of 21-24 individually packaged pills labeled
Vivarin/caffeine alertness aid pills.
Diaz responded to M.H.'s 911 call and located him behind
the green shipping container. He testified M.H. was nervous
and scared, and was hiding from his uncle. M.H. told police
that defendant had crushed up a pill and taken it. He also
told them that defendant placed his hand behind M.H.'s
head, pushed it toward defendant's penis and said,
“Just try it for a little bit. Put it in your
mouth.” M.H. jerked his head away at that point and
defendant told him not to tell anyone. M.H. also told Diaz
that prior to arriving at the motel, defendant was having
sexual conversations with him, and he had a gut feeling it
was wrong and called his mother.
When Diaz subsequently entered the motel room, a pornographic
movie was playing on the television and, during a recorded
questioning, defendant told Diaz he took a Viagra and was
planning to look for a male or female sex partner at a
nightclub, although he could not name the club. Diaz also
testified that at the time of questioning, he observed
defendant had an erection.
Defendant told Diaz he wanted to watch pornography because he
was sexually aroused and he confirmed M.H. was in the room.
Defendant said he only touched M.H.'s head to push it
away so he could go outside to make a telephone call. After
M.H. left, defendant told him not to go anywhere, to stay in
the car, and not to talk to anyone. Defendant told Diaz a few
times that he “wanted ... to take care of business,
” by which defendant meant masturbate. Diaz also
testified that defendant told him the motel offered them a
room with two beds, but defendant requested a single bed and
said M.H. was like a son to him. Defendant further stated
that he told M.H. he was always alone, but this time he had
M.H. with him, and that he told M.H. not to say anything.
On cross-examination, Diaz testified defendant denied having
any sexual intent toward M.H. or making any sexual advances
toward him. Defendant also stated he did not intentionally
expose his penis to M.H. and he denied placing any money
under his penis and telling M.H. to get it. He told Diaz that
M.H. was a liar.
The defense called three witnesses to testify about
defendant's good character. Defendant's sisters, V.P.
and M.F., testified that defendant lived with them at times
and he never engaged in any inappropriate conduct with their
children. Both also testified that defendant would sometimes
give their children money, but he did not expect anything in
return. C.R., whose sons are defendant's nephews, also
testified that he never behaved inappropriately toward her
children and would give them money for things without
expecting anything in return.
M.F. testified that when defendant came to visit, he always
stayed in a motel about 20 miles away and arrived at the
house in the morning. She said he never disturbed them in the
middle of night.
Additionally, V.P. spoke with M.H. and L.G. after defendant
was arrested. She testified M.H. denied that defendant
touched him or did anything to him, and he told her his
mother told him to run and call 911. M.H. told V.P. there was
a pornographic movie on the television, but that was not why
he called the police. V.P. testified that when she told M.H.
he knew what he did and asked him what he was doing, he
smiled and told her just to pay defendant's bail. She
conceded, however, that she did not know what M.H. and his
mother said during their telephone conversations, and she did
not know why L.G. told M.H. to run. She also conceded that
when she asked M.H. why defendant was arrested, he told her,
“I know what he wanted and where that was going.”
Defendant also testified. He said he had planned to spend two
weeks in Sanger ...