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Oquita v. Diaz

United States District Court, E.D. California

November 6, 2019

JAVIER ROMERO OQUITA, Petitioner,
v.
RALPH DIAZ, Respondent.

          FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         I.

         BACKGROUND

         On 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 CT[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. (LDs[2] 13, 14).

         On May 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 passed.

         II.

         STATEMENT OF FACTS[3]

         I. Prosecution Case

         A. M.H.

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.[4] 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 good relationship.
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.

         B. L.G.

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 son.
L.G. testified that after defendant and M.H. left on their trip, something M.H. told her over the phone made her uncomfortable.[5] 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.

         C. Other Testimony

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.

         II. Defense Case

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 ...

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