WILLIAM H. ORRICK, District Judge.
Petitioner Eli E. Garcia seeks federal habeas relief from 15 counts of lewd acts upon a child under 14 and 6 counts of contacting or communicating with a minor with the intent to commit a sex offense. He raises eight potential claims for relief: (1) Juror No. 22 committed misconduct by failing to inform the trial court that she was related to the victim, Jane Doe, and the victim's mother, Stacy Forstell; (2) the prosecutor committed misconduct by highlighting Jane Doe's virginity in closing arguments despite the fact that no evidence was presented to show Doe was a virgin; (3) petitioner's trial counsel was ineffective in failing to object to this prosecutorial misconduct; (4) the trial court erred by sentencing petitioner to consecutive sentences, totaling 17 years; (5) petitioner's trial counsel was ineffective in failing to object to the sentence; (6) the trial court erred in allowing the prosecutor to ask petitioner questions beyond the scope of direct examination in violation of the petitioner's privilege against self-incrimination; (7) the convictions for contacting a minor with an intent to commit sexual offense are not supported by sufficient evidence; and (8) the cumulative errors in petitioner's case warrant relief. Petitioner also moves for oral argument and an evidentiary hearing. Dkt. No. 23; Dkt No. 24.
For the reasons stated below, I DENY relief on claims (2)-(8). The California Court of Appeal correctly addressed those issues and, importantly, the weight of the evidence against petitioner, including his own admissions, is overwhelming. However, there are potential issues concerning the dishonesty of Juror No. 22's answers in voir dire and failure to disclose her family relationship to the victim and mother of the victim in this case, and whether to impute bias. If established, such a constitutional violation goes to the heart of petitioner's right to an impartial jury and a fair trial. I GRANT petitioner's request for an evidentiary hearing on claim (1) regarding potential juror bias.
Petitioner is a California state prisoner serving a sentence of 17 years. A jury found him guilty of 15 counts of lewd acts upon a child under the age of 14, under Cal. Penal Code § 288(a) and six counts of contacting or communicating with a minor with the intent to commit a sex offense under Cal. Penal Code § 288.3(a). On direct appeal to the California Court of Appeal, petitioner raised Claims (2)-(8) as grounds for relief. The California Court of Appeal affirmed the conviction, People v. Garcia, No. H039212, 2014 WL 3752799 (Cal. App. July 31, 2014) (Pet. Ex. 1), (Dkt. No. 1-1), and on October 15, 2014 the California Supreme Court denied review. People v. Garcia, No. S221105 (Cal. Oct. 15, 2014) (en banc) (Pet. Ex. 4), (Dkt. No. 1-1).
While his direct appeal was pending, petitioner filed for habeas relief in the California Court of Appeal, raising Claims (1), (3), (5), and (8). The petition was denied on July 31, 2014. In re Garcia, No. H040599 (Cal. App. July 31, 2014) (Pet. Ex. 2), (Dkt. No. 1-1).
Petitioner filed a petition for habeas corpus with the California Supreme Court on September 29, 2014, raising Claim (1) as grounds for relief. The California Supreme Court denied the petition on December 17, 2014, stating only "The petition for writ of habeas corpus is denied" and citing People v. Duvall (1995) 9 Cal.4th 464, 474; and In re Dixon (1953) 41 Cal.2d 756, 759. In re Garcia, No. S221537 (Cal. Dec. 17, 2014) (en banc) (Pet. Ex. 5), (Dkt. No. 1-1).
The California Court of Appeal summarized the facts of this case in its July 31, 2014 unpublished opinion:
Garcia, 2014 WL 3752799, at *1-3.
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). "Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
Here, petitioner has raised claims in this federal habeas petitioner that were raised on direct appeal and in his state habeas petition. In its unpublished opinion of July 31, 2014, the California Court of Appeal addressed petitioner's Claims (2)-(8). The California Supreme Court denied review on appeal. The California Court of Appeal was the last court to present a reasoned decision on these claims and I review its decision here. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005).
Petitioner raised his Claim (1) in habeas petitions before the California Court of Appeal and the California Supreme Court. His claim was summarily denied by both courts. Pet. Exs. 2, 5; Dkt. No. 1-1. When a federal court is presented with a state court decision that is unaccompanied by a rationale for its conclusions, a federal court must conduct an independent review of the record to determine "whether the state court's decision is objectively reasonable." See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). The applicable standard of review for petitioner's juror misconduct claim is independent review of the record, which "is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2000). "[W]here a state court's decision is unaccompanied by an explanation the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." See Harrington v. Richter, 562 U.S. 86, 101 (2011).
Petitioner argues that Juror No. 22 was actually or impliedly biased, violating his rights to an impartial jury, due process, and a fair trial under the Fifth, Sixth, and Fourteenth Amendments, because she failed to disclose her relationship to the victim and the victim's mother. Pet. 13. Juror No. 22 is related to several key individuals and witnesses in this case, including the victim Jane Doe (also referred to by her first name Kayli, during the trial), the victim's mother, Stacy Forstell, and the victim's grandmother, Sandy Castaldo. Although Juror No. 22 indicated that Sandy Castaldo was her cousin during the voir dire process, she did not indicate any relationship to Stacy Forstell or the victim. Petitioner asserts that this omission was misleading and dishonest and undermined the impartiality of the jury. Pet. 12-13.
During voir dire, the presiding judge listed potential witnesses in the case, including Doe, Forstell, and Castaldo. Augmented Reporter's Transcript ("ART") at 29 (Dkt. No. 15-4). The court then asked if any potential jurors were familiar with the names of the potential witnesses. Id. Juror No. 22 volunteered that she was related to Castaldo:
ART 76-77.
Although Castaldo, Doe, and Forstell are all related-Castaldo is Doe's grandmother and at the time was her guardian, and Forstell is Doe's mother-Juror No. 22 only volunteered that she knew Castaldo.
In his petition for state habeas relief, which petitioner incorporates by reference in his federal petition, petitioner submitted declarations from Stacy Forstell and Juror No. 22. In her declaration Juror No. 22 elaborates on her relationship to the case participants and explains why she failed to disclose more information during voir dire:
Declaration of [Juror No. 22] (Dkt. No. 15-6, p 111-112).
Stacy Forstell further outlines Juror No. 22's relationship to the case participants in her declaration:
Declaration of Stacy Forstell (Forstell Decl.) (Pet. Ex. 1), (Dkt. No. 1-1).
The Sixth Amendment guarantees to the criminally accused a fair trial by a panel of impartial jurors. U.S. CONST. AMEND. VI. "Even if only one juror is unduly biased or prejudiced, the defendant is denied his constitutional right to an impartial jury." Tinsley v. Borg, 895 F.3d 520, 523-24 (9th Cir. 1990) (internal quotation marks omitted). The Constitution "does not require a new trial every time a juror has been placed in a potentially compromising situation." Smith v. Phillips, 455 U.S. 209, 217 (1982):
Id.
The Ninth Circuit has identified three theories of juror bias: "McDonough-style bias, which turns on the truthfulness of a juror's responses on voir dire; actual bias, which stems from a pre-set disposition not to decide an issue impartially; and implied (or presumptive) bias, which may exist in exceptional circumstances where, for example, a prospective juror has a relationship to the crime itself or to someone involved in a trial, or has repeatedly lied about a material fact to get on the jury." Fields v. Brown, 503 F.3d 755, 766 (9th Cir. 2007) (en banc) ("Fields II").
Under McDonough, a petitioner may be entitled to a new trial on the basis of a juror's false response, but "must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984)). "[A]n honest yet mistaken answer to a voir dire question rarely amounts to a constitutional violation; even an intentionally dishonest answer is not fatal, so long as the falsehood does not bespeak a lack of impartiality." Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998) (en banc). Courts cannot expect perfection from jurors and "must be tolerant, as jurors may forget incidents long buried in their minds, misunderstand a question or bend the truth a bit to avoid embarrassment." Id. In assessing petitioner's McDonough claim, I must determine whether Juror No. 22's answers were dishonest, and, if so, whether this undermined the impartiality of petitioner's jury.
Respondent argues that Juror No. 22 did not act dishonestly by failing to disclose her relation to Forstell and Doe. Answer 9. Respondent contends that Juror No. 22 acted reasonably and honestly in assuming that disclosing her relation to Castaldo was sufficient to reveal her relation to Forstell and was not dishonest in failing to identify her relation to Doe, because she simply failed to recognize Doe's first name. Id.; see Juror No. 22 Decl. ("I did not recognize the name of Kayli, Stacey's daughter."). Respondent contends that to insist that a "prospective juror delineate each relationship to each witness `is to insist on something closer to perfection than our judicial system can be expected to give.'" Answer 9 (citing McDonough, 464 U.S. at 555).
While it is possible that Juror No. 22's omission was an innocent mistake, there are also reasons to question her explanations. Juror No. 22 declares that she "expected that the Court or the attorneys would ask me about my relation with Stacey Forstell" but she didn't disclose this information because "I was never asked." Juror No. 22 Decl. However, the court repeatedly asked the jurors, as a group, whether they knew any of the proposed witnesses, including Stacey Forstell, and Juror No. 22 failed to disclose this information. Further, when Stacey disclosed her relation to Castaldo, the presiding judge remarked, "We do need to know you're related. It's very important." Despite the court's requests that the jurors reveal if they knew any of the proposed witnesses, and its explanation that it was "very important" for the court to know if the jurors were related to any witnesses, Juror No. 22 did not volunteer that she knew and was related to Stacey Forstell.
There are also reasons to question Juror No. 22's explanation for her failure to reveal her relation to the victim, Doe. Juror No. 22 declares that she did not disclose her relation to Doe because she did not recognize her first name and did not realize she was Stacey Forstell's daughter. However, there are several reasons to believe Juror No. 22 would have realized who Doe was. During the voir dire process, another prospective juror, Juror No. 35, explained to the court that she was friends with Castaldo and knew Doe because Doe was Castaldo's granddaughter. ART 108. It seems likely that Juror No. 22 would have been able to piece together Doe's relationship to Stacey given this explanation. Juror No. 35 also explained that she was aware of the general circumstances of the case because "[i]t was all over social media. We're in a small community." Stacy Forstell notes in her declaration that she had been friends with Juror No. 22 on Facebook before the trial began, suggesting that Juror No. 22 also would have been exposed to general details about the case from social media.
Finally, Juror No. 22's failure to inform the court that she recognized Doe once the trial began suggests that her failure to disclose her relation to Doe was not an innocent mistake. During voir dire, the court informed the prospective jurors that if they recognized any witnesses during trial they should immediately inform the court. ART 35 ("If someone comes in and testifies during the trial and you recognize the person, you need to let my bailiff know, and we can take it up then."). Although Doe eventually testified at trial, nothing in the record suggests that Juror No. 22 told anyone that she knew and recognized Doe. If Juror No. 22 had simply been mistaken in failing to recognize Doe's name during voir dire, it seems likely she would have attempted to rectify the mistake once seeing Doe in person and realizing she was the victim in the case. Her failure to do so lends credence to a finding of dishonesty, rather than of innocent mistake.
Although none of these issues is conclusive, I am confronted with a record that raises enough suspicions of juror dishonesty to warrant further exploration of bias.
In the alternative, petitioner argues that, even if Juror No. 22 answered questions honestly, this court should impute bias because her relation to Forstell and Doe is an extreme circumstance that warrants a presumption of bias. Pet. 14. The Supreme Court has never explicitly adopted the doctrine of implied bias. Hedlund v. Ryan, 815 F.3d 1233, 1248 (9th Cir. 2016); Fields I, 309 F.3d at 1104. However, in a concurring opinion in Phillips, Justice O'Connor explained that a finding of implied bias may be warranted "in appropriate circumstances." 455 U.S. at 221 (O'Connor, J., concurring). As Justice O'Connor explained, "in most instances a postconviction hearing will be adequate to determine whether a juror is biased." Id. at 222. However, she noted that "while each case must turn on its own facts, there are some extreme situations that would justify a finding of implied bias," including, for example, "a revelation that a juror is an actual employee of the prosecuting agency" or "that the juror is a close relative of one of the participants in the trial or the criminal transaction. . . ." Id.
The Ninth Circuit has similarly recognized that in "extraordinary cases, courts may presume bias based on the circumstances." Estrada v. Scribner, 512 F.3d 1227, 1240 (9th Cir. 2008) (citing Dyer, 151 F.3d at 981) (internal quotation marks omitted). In Estrada the court offered examples of potential facts that would justify a finding of implied bias:
Estrada, 512 F.3d at 1240 (citing Coughlin v. Tailhook Ass'n, 112 F.3d 1052, 1062 (1997)).
Here, Juror No. 22 was related to several key participants in the case: the victim, the victim's mother, and the victim's grandmother and guardian. While I acknowledge that "there are no perfect trials," McDonough, 464 U.S. at 553, I am skeptical of the impartiality of a juror who is related to three witnesses in a criminal case, including the child victim. The unusual and "extreme" facts in this case may warrant a finding of implied bias. Phillips, 455 U.S. at 222 (O'Connor, J., concurring).
Respondent asserts that petitioner's claim of implied bias must fail because there is no clearly established federal law outlining the doctrine of implied bias. Answer 9. "It is admittedly often difficult to determine when a case announces a new rule. . . . In general, . . . a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government." Teague v. Lane, 489 U.S. 288, 301 (1989). There are no Supreme Court or Ninth Circuit cases directly on point. However, the Ninth Circuit has held that "we do not require the existence of a case for Teague purposes involving identical facts, circumstances, and legal issues." Fields II, 503 F. 3d at 772. In Fields II, the Ninth Circuit noted that given the Ninth Circuit precedent and Judge O'Conner's concurrence in Phillips, "it is difficult to conclude that . . . presuming bias despite an honest disclosure of a potentially disqualifying relationship would have been a new rule of constitutional law in 1984." What would not have been a new rule of constitutional law in 1984 is certainly not new today.
Imputing bias to a juror who is a close relative of the victim, the victim's mother, and the victim's grandmother is not likely a "new" rule. However, the Supreme Court has discouraged the use of "formal categorization" in assessing juror bias. Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990). Instead, it has emphasized the importance of assessing actual bias through voir dire or a post-trial hearing. McDonough, 464 U.S. at 556. Before determining whether petitioner is entitled to relief on the basis of implied bias, petitioner should be given an opportunity to assess Juror No. 22's potential actual bias through a post-trial hearing.
When petitioner became aware of potential juror bias, he requested an evidentiary hearing in both the California Court of Appeal and the California Supreme Court, but his request was denied. As the state courts gave no reasoned opinion for denying petitioner's habeas petitions I look at the record independently.
The law does not require state or federal courts to hold a hearing every time a claim of juror bias is raised by the parties. Tracey v. Palmateer, 341 F.3d 1037, 1045 (9th Cir. 2003). However, a court confronted with a colorable claim of juror bias will generally conduct a hearing involving all interested parties to explore the issue and provide the defendant an opportunity to prove actual bias. See Hedlund, 815 F.3d at 1247. A court assessing whether an evidentiary hearing is appropriate should consider the content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source. See United States v. Angulo, 4 F.3d 843, 847 (9th Cir. 1993). Under Ninth Circuit precedent, a hearing is required if there is a "reasonable possibility" of bias. United States v. Ivester, 316 F.3d 955, 960 (9th Cir. 2003).
Petitioner has raised a colorable claim of actual bias. Consequently, petitioner should be given the opportunity to explore whether Juror No. 22's answers at voir dire were dishonest and whether this undermined the impartiality of petitioner's jury. See Williams v. Taylor, 529 U.S. 420 (2000) (evidentiary hearing to determine partiality required where one of juror's responses to voir dire query was not forthcoming and another was factually misleading).
Petitioner also asserts that his trial counsel, Joy L. McMurty, was ineffective because she failed to inquire into Juror No. 22's relation to Castaldo, Forstell, and Doe. Pet. 15. To succeed on a claim of ineffective assistance of counsel, a petitioner must show (1) that the attorney's errors were so deficient that the petitioner was effectively denied the assistance of counsel and (2) that the errors were prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance requires a showing that counsel's representation fell below an objective standard of reasonableness as measured by prevailing professional norms. Wiggins v. Smith, 539 U.S. 510, 521 (2003). To establish prejudice, the petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (internal quotation marks omitted).
There is "a strong presumption that counsel's representation was within the wide range of reasonable professional assistance." Harrington, 562 U.S. at 104 (internal quotation marks omitted). A petitioner "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (internal quotation marks omitted). Despite this strong presumption, petitioner will likely be able establish that his trial counsel's failure to inquire into Juror No. 22's relationship to Castaldo, Forstell, and Doe fell below an objective standard of reasonableness. It is hard to imagine how failing to inquire about a juror's relationship to three potential witnesses in a case, including a child victim, would be part of any legitimate trial strategy for a defendant. There are strong reasons to presume that Juror No. 22's personal connection to the victim, her mother, and her grandmother would have made it difficult for her to be completely impartial. And there is no plausible reason to keep a juror who is potentially biased against your client on the panel. Petitioner would likely be able to meet the first prong of Strickland.
However, it does not appear that petitioner can establish the second prong of Strickland, that counsel's errors resulted in prejudice. To establish prejudice, the petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (internal quotation marks omitted). Petitioner does not attempt to argue that the results of the proceeding would have been different absent counsel's error. The evidence supporting petitioner's convictions was overwhelming. Petitioner himself testified at trial and admitted to many of the charges against him. There is no reason to believe the outcome of petitioner's trial would have been different had trial counsel questioned Juror No. 22 about potential bias. Petitioner cannot establish the second prong of Strickland and his ineffective assistance of counsel claim fails.
Petitioner asserts the prosecutor committed misconduct by arguing that Doe's first sexual encounter was with petitioner, violating his rights under the Sixth Amendment. Pet. 15. During closing arguments, the prosecutor highlighted Doe's virginity as follows:
Reporter's Transcript ("RT") at 190 (Dkt. No. 15-3) (emphasis added).
Petitioner argues that the prosecutor's statements about Doe's virginity were improper because there was no evidence in the record to support the idea that Doe's first sexual experience was with petitioner. Petitioner made the same claim on direct appeal in the state appellate court, which rejected his claim.
A petitioner may be entitled to reversal on the basis of prosecutorial misconduct if (1) the prosecutor made statements that were improper, and (2) if those statements rendered the trial fundamentally unfair. Darden v. Wainwright, 477 U.S. 168, 181 (1986); Phillips, 455 U.S. at 219 (1982) ("the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor"). A prosecutorial misconduct claim is decided "on the merits, examining the entire proceedings to determine whether the prosecutor's remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process." Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995) (internal quotation marks omitted); see Trillo v. Biter, 769 F.3d 995, 1001 (9th Cir. 2014) ("Our aim is not to punish society for the misdeeds of the prosecutor; rather, our goal is to ensure that the petitioner received a fair trial.").
There are several factors courts take into account in assessing whether prosecutorial misconduct results in a due process violation: (1) whether the trial court issued a curative instruction, Greer v. Miller, 483 U.S. 756, 766 n.8 (1987); (2) the weight of evidence of guilt, compare United States v. Young, 470 U.S. 1, 19 (1985) (finding "overwhelming" evidence of guilt) with United States v. Schuler, 813 F.2d 978, 982 (9th Cir. 1987) (in light of prior hung jury and lack of curative instruction, new trial required after prosecutor's improper reference to defendant's courtroom demeanor); (3) whether the misconduct was isolated or part of an ongoing pattern, see Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987); (4) whether the misconduct relates to a critical part of the case, see Giglio v. United States, 405 U.S. 150, 154 (1972) (failure to disclose information showing potential bias of witness was critical where prosecution's case rested on credibility of that witness); and (5) whether a prosecutor's comment misstates or manipulates the evidence, see Darden, 477 U.S. at 182.
When a curative instruction is issued, a court presumes that the jury has disregarded inadmissible evidence and that no due process violation occurred. See Greer v. Miller, 483 U.S. 756, 766 n.8 (1987); Darden, 477 U.S. at 182 (concluding that inflammatory statements from the prosecutor did not render the trial fundamentally unfair, in part because the trial judge "instructed the jurors several times that their decision was to be made on the basis of the evidence alone, and that the arguments of counsel were not evidence"); Trillo, 769 F.3d at 1000 ("We presume that juries listen to and follow curative instructions from judges."). This presumption may be overcome if there is an "overwhelming probability" that the jury would be unable to disregard evidence and a strong likelihood that the effect of the misconduct would be "devastating" to the defendant. See Greer, 483 U.S. at 766 n.8.
The California Court of Appeal found that the trial court issued sufficient curative instructions to correct for any misstatements on the part of the prosecution:
Garcia, 2014 WL 3752799, at *8. I concur with the Court of Appeal's analysis that the trial court's instructions were sufficient to cure any misstatements.
Evaluation of the remaining factors explains why. In assessing the additional factors the state court reasoned as follows:
Garcia, 2014 WL 3752799, at *8-9.
As the Court of Appeal found, the weight of the evidence in this case was overwhelming and the prosecutor's statement about Doe's virginity was irrelevant to the elements of the charges. In addition, the prosecutor's statement appears to have been an isolated incident and was not part of a pattern of improper statements. Given the curative instruction issued by the trial court, the overwhelming evidence against petitioner, the irrelevance of the statement about Doe's virginity, and the fact that the statement was an isolated incident, the prosecutorial misconduct alleged does not rise to the level of a due process violation. The Court of Appeal's denial of petitioner's claim was reasonable and is therefore entitled to AEDPA deference. Petitioner's request for relief on Claim 2 is DENIED.
Petitioner argues that his trial counsel provided ineffective assistance because she failed to object to the prosecutorial misconduct alleged in Claim 2. Pet. 17. To succeed on a claim of ineffective assistance of counsel, a petitioner must show (1) that the attorney's errors were so deficient that the petitioner was effectively denied the assistance of counsel and (2) that the errors were prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984). "The standards created by Strickland and [AEDPA] are both highly deferential, and when the two apply in tandem, review is doubly so." Harrington, 562 U.S. at 105. In considering an ineffective assistance of counsel claim from a state prisoner, "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable." Id.
Petitioner raised this same claim on appeal to the California Court of Appeal. The state court denied petitioner's claim, reasoning:
Garcia, 2014 WL 3752799, at *8-9.
As petitioner has not shown any prejudice to his proceeding, the Court of Appeal's denial of petitioner's claim was not an objectively unreasonable application of Strickland. Petitioner's Claim 3 is DENIED.
Petitioner argues that the trial court made numerous errors at sentencing because it: (1) failed to articulate its reasons for imposing consecutive sentences, as required by California law; (2) improperly considering the victim's age as a sentencing factor; (3) failed to impose an individualized sentence; (4) failed to find certain factors in mitigation; (5) and erroneously imposed the middle term instead of the low term on several counts. Pet. 19-24. Petitioner asserts, without explanation, that these alleged errors violated his Eighth and Fourteenth Amendment rights.
State courts must be accorded wide discretion in making sentencing decisions. See Walker v. Endell, 850 F.2d 470,476 (9th Cir. 1987), cert denied, 488 U.S. 926, and cert. denied, 488 U.S. 981 (1988). Federal courts must defer to the state courts' interpretation of state sentencing laws. See Bueno v. Hallahan, 988 F.2d 86, 88 (9th Cir. 1993). "Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief." Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994).
Petitioner goes into great detail explaining why the trial court's sentencing was erroneous under state law. The California Court of Appeal considered and rejected these arguments on appeal. With regard to the first argument, that the court failed to offer reasons for consecutive sentences, the court explained that the court's rationale could be deciphered from context:
Garcia, 2014 WL 3752799, at *10.
Next, the court rejected petitioner's second argument that the trial court relied on the victim's age as a sentencing factor, noting that the trial court "explicitly acknowledged that it could not use Doe's age as a sentencing factor because `that is an aspect of the charges.'" Id. at *11. With regard to petitioner's third argument, it determined that "[t]o the extent the trial court's sentencing decisions were influenced by its views on the consequences of similar criminal conduct in other cases, we find no error" and that the court properly considered the individual circumstances of the case in rendering its sentence. Id. at *12. The court rejected petitioner's fourth argument, that the court failed to consider mitigating factors, explaining that "[t]he record indicates that the trial court imposed consecutive sentences based on one of the enumerated criteria: `[t]he crimes were committed at different times or separate places.' (Rule 4.425(a)(3).) The trial court was not required to consider any factors in mitigation. (Rule 4.425(b).)." Id. Finally, the court rejected petitioner's fifth argument, that the court erroneously imposed the middle term, concluding that the trial court must be afforded significant discretion in weighing the various mitigating and aggravating factors and that the court's imposition of the middle term was not arbitrary. Id. at *13.
As the Court of Appeal concluded, none of petitioner's sentencing claims evidences a clear, if any, error on the part of the trial court. These alleged errors are not sufficient to justify granting habeas relief. Petitioner has not identified any sentencing errors that rise to the level of fundamental unfairness. Petitioner's Claim 4 for federal habeas relief is DENIED.
Petitioner contends that his trial counsel was ineffective by failing to object to the alleged sentencing errors described in Claim 4. Pet. 24. Because, as the Court of Appeal concluded, the trial court did not make any sentencing errors, petitioner's ineffective assistance claim must fail. It is both reasonable and not prejudicial for defense counsel to forgo a meritless objection. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005). As petitioner has failed to show any sentencing errors, his counsel could not have acted unreasonably in failing to object to the sentencing proceedings. Petitioner's Claim 5 is DENIED.
Petitioner argues that the prosecutor's questions to petitioner on cross-examination went beyond the scope of the direct examination and violated his Fifth Amendment right against self-incrimination. Pet. 29. The Fifth Amendment provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." U.S. CONST. AMEND. V. However, that right is not absolute: "[a] defendant who testifies in his own behalf waives his privilege against self-incrimination with respect to the relevant matters covered by his direct testimony and subjects himself to cross-examination by the government." United States v. Hearst, 563 F.3d 1331, 1339 (1977) (citing Brown v. United States, 356 U.S. 148 154-55 (1958)).
The Supreme Court has held that when a defendant testifies, his credibility is subject to impeachment and his testimony is to be treated like any other witness, and "the breadth of his waiver is determined by the scope of relevant cross-examination." Hearst, 563 at 1340. The Court has long held that "a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination." McGautha v. California, 402 U.S. 183, 215 (1971). That a defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against self-compelled incrimination. See Williams v. Florida, 399 U.S. 78, 83-84 (1970).
Petitioner raised this same claim on direct appeal to the state appellate court which denied his claim:
Garcia, 2014 WL 3752799, at *7.
The state court reasonably determined that the prosecutor did not exceed the scope of direct examination. Because petitioner testified on direct examination about his relationship with Doe, the prosecutor was entitled to question petitioner on this subject on cross-examination. The Court of Appeal's determination that the prosecutor's questioning did not violate petitioner's right against self-incrimination was not an objectively unreasonable application of clearly established federal authority and is entitled to AEDPA deference. Petitioner's Claim 6 is DENIED.
Petitioner argues that the evidence presented at trial was insufficient to convict him for contacting or communicating with a minor with the intent to commit a sex offense, Cal. Penal Code § 288.3(a). Pet. at 32-36. The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). A petitioner "is entitled to habeas corpus relief if it is found that upon the evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." See Jackson v. Virginia, 443 U.S. 307, 324 (1979). A challenge to the sufficiency of evidence "must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. at 324 n. 16; see also Emery v. Clark, 643 F.3d 1210, 1214 (9th Cir. 2011) ("Insufficient evidence claims are reviewed by looking at the elements of the offense under state law.").
Petitioner asserts that there is insufficient evidence of the first element of section 288.3(a) because he did not "actively contact[] or communicate[] with Jane Doe. . . ." Pet. 35. Petitioner was convicted under Cal. Penal Code section 228.3 which provides:
Section 228.3 was enacted following the passing of Proposition 83, which was intended to protect children from sex offenders. 2006 Cal. Legis. Serv. Prop. 83; Pet. 35. Petitioner asserts that Proposition 83 "was not intended to criminalize the communication that petitioner had with Jane Doe" because "the first element of 288.3 should require that the defendant initiate communication or contact with a minor." Pet. 35. Petitioner raised this same argument in the state appellate court, which rejected his interpretation of section 288.3:
Garcia, 2014 WL 3752799, at *4-5.
The California Court of Appeal rejected petitioner's interpretation of the statute, concluding that neither the language of the statute or the purpose behind it, protecting children from sex offenders, supports reading in petitioner's limitation that it applies only where a defendant "initiated contact." I defer to the California court's interpretation of California law and conclude that Section 288.3 does not require showing that a defendant "initiated contact."
Under a plain reading of Section 288.3, there was ample evidence introduced in trial showing that petitioner communicated with Doe with the intent to commit lewd or lascivious acts:
Garcia, 2014 WL 3752799, at *5-6.
There was substantial evidence to support the Section 288.3 violations. The California Court of Appeal's denial of this claim was not objectively unreasonable and therefore is entitled to AEDPA deference. Petitioner's Claim 7 is DENIED.
Petitioner finally argues that the cumulative effect of errors at trial resulted in a denial of due process and thus warrants habeas relief. Pet. 36-37. In some cases, although no single trial error is sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may prejudice a defendant to the extent that his conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir. 2003) (reversing conviction where multiple constitutional errors hindered defendant's efforts to challenge every important element of proof offered by prosecution); Thomas v. Hubbard, 273 1164, 1179-81 (9th Cir. 2002), overruled on other grounds by Payton v. Woodford, 299 F.3d 815, 829 n.11 (9th Cir. 2002) (reversing conviction based on cumulative prejudicial effect of (a) admission of triple hearsay statement providing only evidence that defendant had motive and access to murder weapon; (b) prosecutorial misconduct in disclosing to the jury that defendant had committed prior crime with use of firearm; and (c) truncation of the defense's cross-examination of a police officer, which prevented defense from adducing evidence that someone else may have committed the crime and evidence casting doubt on credibility of main prosecution witness). "The cumulative effect of multiple errors can violate due process even where no single error rises to the level of a constitutional violation or would independently warrant reversal." Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011) (internal quotation marks and citation omitted). Habeas relief may be warranted "under the cumulative effects doctrine when there is a `unique symmetry' of otherwise harmless errors, such that they amplify each other in relation to a key contested issue in the case." Id. (internal quotation marks and citation omitted).
Petitioner asserts a cumulative prejudicial effect because: (i) the trial court erroneously permitted the prosecutor to ask improper questions regarding the circumstances of the offenses; (ii) the prosecutor committed misconduct when he discussed Doe's virginity in closing arguments and trial counsel was ineffective in failing to object to this alleged misconduct; and (iii) the trial court erred during sentencing and trial counsel was ineffective in failing to object to the sentencing error. Pet. 37.
Petitioner raised this same cumulative claim on appeal. The Court of Appeal concluded that there was no cumulative prejudicial effect:
Garcia, 2014 WL 3752799, at *9.
The state's decision was objectively reasonable. As discussed above, petitioner has not identified a sentencing error and the trial court did not err by overruling petitioner's objections regarding the scope of cross-examination. Although it is possible that the prosecution erred by highlighting Doe's virginity, this alleged error did not render the trial fundamentally unfair. Petitioner has failed to establish multiple errors that could "amplify each other in relation to a key contested issue in the case." Ybarra, 656 F.3d at 1001 (internal quotation marks and citation omitted). The state court's denial of the claim was not objectively unreasonable and therefore is entitled to AEDPA deference. Petitioner's Claim 8 is DENIED.
Petitioner's Claims (2)-(8) are DENIED. Petitioner's request for an evidentiary hearing is GRANTED with regards to Claim (1).
The Court will hold a status conference on Tuesday, March 14, 2017 at 2:00 p.m. to discuss the timing of the evidentiary hearing and other matters pertinent to this case. The parties shall file a Joint Status Conference Statement by March 9, 2017 to propose a date for the hearing and any other matters that they wish to bring to the Court's attention. By separate order, James S. Thomson is appointed as counsel for petitioner for purposes of the evidentiary hearing and any post-hearing briefing that may be necessary. 18 U.S.C. § 3006(A)(a)(2)(B). Mr. Thomson shall submit such budgets as appropriate for CJA approval.
