ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

JAMES DONATO, District Judge.

Pablo Matias, a pro se state prisoner, has brought a habeas petition pursuant to 28 U.S.C. § 2254. The Court ordered respondent to show cause why the writ should not be granted. Respondent filed an answer and a memorandum of points and authorities in support of it, and lodged exhibits with the Court. Matias filed a traverse. The petition is denied.

BACKGROUND

A jury convicted Matias of four counts of aggravated lewd conduct with a minor under the age of fourteen and also found that he committed the offenses against two victims. Clerk's Transcript ("CT") at 313, 320, 327, 334, 341. He was sentenced to an indeterminate term of 60 years to life in prison. Id. at 358-60. The California Court of Appeal affirmed the conviction. People v. Bedolla-Matias, No. H035711, 2012 WL 1490489, at *1 (Cal. Ct. App. April 27, 2012). The California Supreme Court denied Matias' petition for review. Answer, Ex. 9. He also filed a state habeas petition that was denied. Answer, Exs. 10-11.

The California Court of Appeal summarized the facts of the crime as follows:

Matias, 2012 WL 1490489, at *1-4.

STANDARD OF REVIEW

A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed 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). The first prong applies both to questions of law and to mixed questions of law and fact, Williams v. Taylor, 529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only 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 Supreme] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. A state court decision is an "unreasonable application of" Supreme Court authority, falling under the second clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review 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." Id. at 411. Rather, the application must be "objectively unreasonable" to support granting the writ. Id. at 409.

Under 28 U.S.C. § 2254(d)(2), a state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." See Miller-El, 537 U.S. at 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). Moreover, in conducting its analysis, the federal court must presume the correctness of the state court's factual findings, and the petitioner bears the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

The state court decision to which § 2254(d) applies is the "last reasoned decision" of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). When there is no reasoned opinion from the highest state court to consider the petitioner's claims, the court looks to the last reasoned opinion. See Nunnemaker at 801-06; Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). The standard of review under AEDPA is somewhat different where the state court gives no reasoned explanation of its decision on a petitioner's federal claim and there is no reasoned lower court decision on the claim. In such a case, a review of the record is the only means of deciding whether the state court's decision was objectively reasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). When confronted with such a decision, as with the first three claims in this petition, a federal court should conduct an independent review of the record to determine whether the state court's decision was an objectively unreasonable application of clearly established federal law. Himes, 336 F.3d at 853; Delgado, 223 F.3d at 982.

DISCUSSION

As grounds for federal habeas relief, Matias asserts that: (1) his sentence was improper; (2) trial counsel was ineffective for failing to object to the sentencing and for failing to properly investigate the case; (3) the trial court instead of the jury made certain findings that increased the sentence; (4) the trial court issued an improper jury instruction regarding propensity evidence; (5) trial counsel was ineffective for failing to object to the propensity jury instruction; (6) the trial court improperly admitted evidence; (7) the trial court improperly admitted expert testimony of child sexual abuse accommodation syndrome (CSAAS); (8) there was insufficient evidence; and (9) the trial court issued an improper jury instruction regarding duress.

I. IMPROPER SENTENCING

Matias first argues that his due process rights were violated by the trial court, which incorrectly applied state law and imposed multiple punishments for the same criminal conduct.

Legal Standard

State sentencing courts must be accorded wide latitude in their decisions as to punishment. See Walker v. Endell, 850 F.2d 470, 476 (9th Cir. 1987). Generally, therefore, a federal court may not review a state sentence that is within statutory limits. See id. However, the constitutional guarantee of due process is fully applicable at sentencing. See Gardner v. Florida, 430 U.S. 349, 358 (1977). A federal court may vacate a state sentence imposed in violation of due process; for example, if a state trial judge (1) imposed a sentence in excess of state law, see Walker, 850 F.2d at 476; see also Marzano v. Kincheloe, 915 F.2d 549, 552 (9th Cir. 1990) (plea of guilty does not permit state to impose sentence in excess of state law despite agreement of defendant to sentence), or (2) enhanced a sentence based on materially false or unreliable information or based on a conviction infected by constitutional error, see United States v. Hanna, 49 F.3d 572, 577 (9th Cir. 1995); Walker, 850 F.2d at 477.

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); see, e.g., Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) (whether assault with deadly weapon qualifies as "serious felony" under California's sentence enhancement provisions, Cal. Penal Code §§ 667(a) and 1192.7(c)(23), is question of state sentencing law and does not state constitutional claim).

Discussion

Matias was sentenced to 60 years to life pursuant to California Penal Law section 667.6(d) because the offenses were committed against separate victims on separate occasions. CT at 313, 320, 327, 334, 341, 358-60; Reporter's Transcript ("RT") at 527.1 Matias argues that the sentence violated California Penal Law section 654(a), which states:

See id.

This claim and claims two and three were all denied by the California Supreme Court without a reasoned decision in a state habeas petition. Therefore, the Court has conducted an independent review of the record to determine whether the state court's decision was an objectively unreasonable application of clearly established federal law.

A state prisoner is entitled to federal habeas corpus relief only if he is held in custody in violation of the Constitution, laws, or treaties of the United States. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Matias is not entitled to relief for an error under state law. Nor has he shown that the state court's sentence was fundamentally unfair, and a review of the record indicates that the sentence properly complied with section 667.6(d) and did not run afoul of section 654. Matias was sentenced for committing multiple acts against multiple victims based on the findings of the jury.

Even if the Court assumes that the sentence involved section 654 and that the state court misapplied that section, the Ninth Circuit has held that the resulting error does not give rise to a cognizable federal claim. See Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (claim premised solely on misapplication of California Penal Code section 654 is not cognizable of federal habeas review). The claim is denied.

II. INEFFECTIVE ASSISTANCE OF COUNSEL-SENTENCING

Matias argues that counsel was ineffective for failing to object to the alleged improper sentence, for failing to adequately investigate the case, and for not forcing the prosecutor to provide the exact dates for each assault in order to obtain alibi witnesses.

Legal Standard

A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Id.

In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner must establish two things. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland, 466 U.S. at 687-88. Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

Discussion

Matias first argues that counsel was ineffective for failing to object to his sentencing. But because he underlying sentencing claim fails on the merits, Matias could not have been prejudiced by counsel's failure to object. Nor was counsel's failure to object deficient performance because any objection likely would have failed. Trial counsel cannot have been ineffective for failing to raise a meritless motion. Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996).

Matias has not shown that it was unreasonable for the state court to deny the claim that counsel was ineffective for failing to properly investigate the case and by not forcing the prosecutor to provide exact dates of each assault to allow for alibi witnesses. A defense attorney has a general duty to make reasonable investigations and reasonable decisions about investigations. See Strickland, 466 U.S. at 691; Hinton v. Alabama, 134 S.Ct. 1081, 1088 (2014) (per curiam). Strickland directs that "a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 691). Counsel need not pursue an investigation that would be fruitless or might be harmful to the defense. Harrington v. Richter, 562 U.S. 86, 108 (2011). Assuming counsel should have found and presented additional evidence, a state court's rejection of a claim of ineffective assistance based on counsel's failure to pursue further investigation is reasonable if the additional evidence would not likely have caused the jury to reach a different verdict. See Samayoa v. Ayers, 649 F.3d 919, 929-30 (9th Cir. 2011).

Matias has not demonstrated deficient performance or prejudice. Matias does not describe what counsel should have investigated and what information favorable to the defense would have been uncovered with that investigation. Nor has he shown that counsel could have obtained the exact dates for each incident. Based on the facts of this case, it is not likely that the young victims could have provided exact dates for each incident. Furthermore, there is no United States Supreme Court precedent that a charging document alleging only an approximate date of an offense violates due process. Federal courts have rejected habeas claims challenging the lack of specific dates in an information, especially when the charges involved sexual abuse of a minor. See Brodit v. Cambra, 350 F.3d 985, 988-89 (9th Cir. 2003) (rejecting constitutional challenge to California statute permitting state to charge defendant with child molestation occurring during a date range rather than on specified dates). Even had counsel requested the exact dates, Matias has not shown that the prosecutor could have provided the information.

Matias has not provided any names or information regarding possible alibi witnesses. A defendant's mere speculation that a witness might have given helpful information if interviewed is not enough to establish ineffective assistance. See Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). Matias has failed to show deficient performance or that he was prejudiced as a result. Because he has not shown that the state court denial of this claim was an unreasonable application of Supreme Court authority, the claim is denied.

III. RIGHT TO A JURY TRIAL

Matias contends that the trial court, rather than the jury, made findings that there were separate criminal acts against two victims that increased his sentence in violation of the Sixth Amendment.

Legal Standard

"Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 488-90 (2000) (finding unconstitutional state law that permitted judge to impose extended term of imprisonment if he found by a preponderance of the evidence that the crime committed was a "hate crime"). The "statutory maximum" for Apprendi purposes is the maximum sentence a judge could impose based solely on the facts reflected in the jury verdict or admitted by the defendant; that is, the relevant "statutory maximum" is not the sentence the judge could impose after finding additional facts, but rather is the maximum he or she could impose without any additional findings. Blakely v. Washington, 542 U.S. 296, 303-04 (2004).

In Harris v. United States, 536 U.S. 545 (2002), the Supreme Court held that judicial factfinding that increases the mandatory minimum sentence for a crime is permissible under the Sixth Amendment. Harris drew a distinction between facts that increase the statutory maximum and facts that increase only the mandatory minimum. 536 U.S. at 554-68 (upholding McMillan v. Pennsylvania, 477 U.S. 79 (1986)). But in Alleyne v. United States, 133 S.Ct. 2151, 2155 (2013), the Court concluded that this distinction is inconsistent with Apprendi and the original meaning of the Sixth Amendment, and overruled Harris. The Court made clear that:

Alleyne, 133 S. Ct. at 2155 (citations omitted).

Discussion

Matias argues that he is entitled to habeas relief because the trial court found that there were separate underlying incidents of lewd conduct against two victims and that this finding increased his sentence contrary to Alleyne. In Alleyne, the defendant was subject to three possible mandatory minimum terms of imprisonment — five, seven or ten years — for using or carrying a firearm during the commission of a crime. Five years was the presumptive floor, while a defendant found to have brandished the firearm faced a mandatory minimum of seven years, and a defendant found to have discharged the firearm faced a mandatory minimum of ten years. Alleyne, 133 S. Ct. at 2155-56. The judge sentenced Alleyne to seven years, finding that he had brandished the firearm. The Supreme Court reversed, concluding Alleyne's sentence had been increased over the statutory minimum of five years using facts found by a judge (that the firearm was brandished) and not by a jury beyond a reasonable doubt in violation of the Sixth Amendment. Id. at 2158.

Matias is not entitled to habeas relief because the holding in Alleyne is not applicable to this case. The jury found Matias guilty of four separate counts and also found that in each count there was more than one victim. CT at 313, 320, 327, 334, 341. Each count provided for 15 years to life in prison and for the terms to be consecutive. CT at 358-60; RT at 526-27. It was not the trial court that found these elements to impose the sentence; rather, the jury made the findings for each of the four counts and the California Penal Code provided for the sentence. California Penal Code section 667.6(d) provides in part: "A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions."

The trial court did not make any determination that increased the penalty for the crimes. To the extent that Matias argues the consecutive sentences were improper, he is not entitled to relief because this case is similar to Oregon v. Ice, 555 U.S. 160 (2009). The defendant in Ice was sentenced to consecutive sentences after the sentencing judge found, pursuant to Oregon law, that the two burglaries of which Ice was convicted were "separate incidents," and that each sexual offense Ice committed indicated a "`willingness to commit more than one . . . offense' during each criminal episode, and his conduct `caused or created a risk of causing greater, qualitatively different loss, injury or harm to the victim.'" Ice, 555 U.S. at 165-66. Upholding the sentence, the Supreme Court noted that historically, "the jury played no role in the decision to impose sentences consecutively or concurrently. Rather, the choice rested exclusively with the judge." Ice, 555 U.S. at 168. The Court concluded that sentencing a defendant to consecutive rather than concurrent sentences based on judge-found facts did not offend the Sixth Amendment. Id. at 171-72.

The state court decision denying this claim was not an unreasonable application of Supreme Court authority. Furthermore, any error was harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993), due to the evidence presented at trial that described multiple sexual assaults against two victims on several occasions.

IV. PROPENSITY JURY INSTRUCTION

Matias argues that the trial court violated his due process rights by issuing to the jury a propensity instruction which permitted the jury to consider evidence of a charged offense as propensity evidence for the other charged offenses.

Background

Over trial counsel's objection the trial court issued a modified version of CALCRIM No. 1191 which stated:

CT at 260, 299; RT at 489-90.

Legal Standard

A challenge to a jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Nor does the fact that a jury instruction was inadequate by Ninth Circuit direct appeal standards mean that a petitioner who relies on such an inadequacy will be entitled to habeas corpus relief from a state court conviction. See Duckett v. Godinez, 67 F.3d 734, 744 (9th Cir. 1995) (citing Estelle, 502 U.S. at 71-72). To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. See Estelle, 502 U.S. at 72. The instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. Id. at 72. The court must evaluate jury instructions in the context of the overall charge to the jury as a component of the entire trial process. United States v. Frady, 456 U.S. 152, 169 (1982) (citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)).

The United States Supreme Court has left open the question of whether admission of propensity evidence violates due process. Estelle at 75 n.5. Based on the Supreme Court's reservation of this issue as an "open question," the Ninth Circuit has held that a petitioner's due process right concerning the admission of propensity evidence is not clearly established as required by AEDPA. Alberni v. McDaniel, 458 F.3d 860, 866-67 (9th Cir. 2006).

Discussion

The California Court of Appeal discussed at length the relevant state law and denied this claim. Matias, 2012 WL 1490489, at *10-16. Three months after the California Court of Appeal issued its opinion, the California Supreme Court issued People v. Villatoro, 54 Cal.4th 1152 (2012).2 In Villatoro, the court upheld the use of a similar modified version of CALCRIM No. 1191 to permit the jury to use evidence of a defendant's other charged offenses to draw an inference of a defendant's propensity to commit the sexual offenses. Id. at 1164-65. To the extent Matias challenges the state court's interpretation of state law he is not entitled to relief. See Estelle, 502 U.S. at 71-72.

No Supreme Court case holds that the admission of propensity evidence violates due process, and Matias has not shown that the denial of this claim was unreasonable. In Schultz v. Tilton, 659 F.3d 941 (9th Cir. 2011) the Ninth Circuit analyzed an unmodified version of CALCRIM 1191 regarding uncharged sexual misconduct, as opposed to this case which concerned charged sexual misconduct. The Ninth Circuit held that an instruction concerning a defendant's uncharged sexual misconduct "in no way suggests that a jury could reasonably convict a defendant for charged offenses based merely on a preponderance of the evidence." 659 f.3d at 945. The court found that the instruction "was unambiguous and made clear that [ a defendant] could be convicted only if the evidence as a whole `proved [him] guilty beyond a reasonable doubt of the charged crime.'" Id. The Ninth Circuit's ruling in Schultz tends to show that the instruction given in this case was also proper.

Matias has also not shown that this jury instruction so infected the entire trial that the resulting conviction violated due process. The jury was properly instructed on the burden of proof in the other aspects of this case and it is clear that the jury credited the testimony of the victims. Matias has failed to meet his burden in demonstrating that the state court opinion was objectively unreasonable, and this claim is denied.

V. INEFFECTIVE ASSISTANCE OF COUNSEL-JURY INSTRUCTION

Matias also argues that counsel was ineffective for failing to object to the propensity jury instruction (see claim above) on the ground that the prosecution did not give the requisite notice under state law.

Discussion

Matias argues that the prosecutor failed to comply with California Evidence Code section 1108, which requires the prosecutor to disclose propensity evidence at least thirty days before trial. Matias, 2012 WL 1490489, at *15. He alleges that counsel was ineffective for failing to object to the lack of notice. The California Court of Appeal denied this claim:

Matias, 2012 WL 1490489, at *16.

Matias has not shown that the state court opinion was an unreasonable application of Strickland. It was not unreasonable for the California Court of Appeal to conclude that counsel was not deficient because any objection would have been futile. The purpose of pretrial notice is to ensure that "the defendant will not be surprised or unprepared to rebut the proposed evidence." People v. Falsetta, 21 Cal.4th 903, 916 (1999). In this case the propensity evidence did not involve any uncharged behavior. The evidence at issue was the charged counts and the evidence of lewd conduct against A. and L. Matias and his counsel had long known what evidence would be presented at trial and the identity of the victims.

Assuming that counsel was deficient for failing to object, Matias has not demonstrated prejudice. Matias has not shown how being provided the thirty days' notice would have resulted in a different outcome. The evidence at issue was the same evidence known to Matias that was to be presented at trial to prove the charges against him. He has not described how he could have opposed the evidence showing propensity any differently from how he opposed the same evidence that was used to prove the charges. Matias offered no defense other than cross-examining the witnesses to undermine their credibility and argue that the prosecution failed to meet its burden. He has not shown that the denial of this claim was unreasonable.

VI. ADMISSION OF EVIDENCE

Matias argues that his due process rights were violated due to the admission of the following evidence: (1) the preliminary hearing testimony of the victims; (2) the statements concerning A.'s demeanor at the preliminary hearing; and (3) the statements regarding the victims' competency.

Legal Standard

The admission of evidence is not subject to federal habeas review unless a specific constitutional guarantee is violated or the error is of such magnitude that the result is a denial of the fundamentally fair trial guaranteed by due process. See Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999). The Supreme Court "has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (finding that trial court's admission of irrelevant pornographic materials was "fundamentally unfair" under Ninth Circuit precedent but not contrary to, or an unreasonable application of, clearly established Federal law under § 2254(d)).

Failure to comply with state rules of evidence is neither a necessary nor a sufficient basis for granting federal habeas relief on due process grounds. See Henry, 197 F.3d at 1031. The due process inquiry in federal habeas review is whether the admission of evidence was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995).

i. Preliminary Hearing Testimony

After a hearing, the trial court granted the prosecution's motion to admit the preliminary hearing testimony of the victims at trial pursuant to California Evidence Code section 1360. Matias argues that the trial court erred in finding that A.s and L.'s preliminary hearing testimony was sufficiently reliable to be admitted. The California Court of Appeal denied the claim:

Matias, 2012 WL 1490489, at *7-8.

The state courts found that the evidence was properly admitted under state law and Matias cannot challenge the state courts' interpretation of state law in his federal habeas petition. Moreover, there is no Supreme Court authority finding that habeas relief can be provided due to the admission of irrelevant or overtly prejudicial evidence. See Holley. The state court decision denying this claim could not have been an unreasonable application of Supreme Court authority. Matias has not shown that the admission of the preliminary hearing testimony was a violation of such magnitude that the result was a denial of the fundamentally fair trial guaranteed by due process. This claim is denied.

ii. A's Demeanor at Preliminary Hearing

The California Court of Appeal set forth the relevant background and denied this claim.

Matias, 2012 WL 1490489, at *8-9

The state court found that it was an error to admit the statements describing A.'s demeanor, but that the error was harmless. If a state court finds an error harmless, that determination is reviewed under the deferential AEDPA standard. This means that relief is not available for the error unless the state court's "harmlessness determination itself was unreasonable." Davis v. Ayala, 135 S.Ct. 2187, 2199 (2015) (quoting Fry v. Pliler, 551 U.S. 112, 119 (2007)). A federal court may grant relief only if the state court's harmlessness determination "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded agreement." Id. (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). And if the federal court determines that the state court's harmless error analysis was objectively unreasonable, it also must find that the error was prejudicial under Brecht before it can grant relief. See Fry, 551 U.S. at 119-20 (§ 2254(d)(1) did not displace Brecht).

Here, the state court decision that the error was harmless was not so lacking in justification that it could be perceived as a well—understood error. The state court noted that the improperly admitted statements concerning A.'s demeanor were brief and did not have a tendency to make her appear more credible or convincing as a result. This determination is not unreasonable, and, because A. testified at trial, the jury was able to assess her credibility. Matias has not shown that he is entitled to relief.

iii. A.'s and L.'s Competence

At the preliminary hearing, due to the young age of the victims, the trial court questioned A. and L. about whether they knew the difference between telling the truth and lying and whether they promised to tell the truth. RT at 302-07, 357-61. Based on their answers the trial court found that they were competent to testify. Id. Matias argues that the admission at trial of these preliminary exchanges violated his rights because the jury could have understood the comments to be judicial determinations that A. and L. were telling the truth. Matias, 2012 WL 1490489, at *9.

The following exchange occurred at the preliminary hearing with A.:

RT at 306-07. The trial court asked similar questions to L., who also answered that she would not lie or pretend. RT at 359-61. The California Court of Appeal denied Matias' claim:

Matias, 2012 WL 1490489, at *9.

A review of the record supports the California Court of Appeal's finding that the jury would not have understood the statements to mean that the trial court had found the victims were telling the truth. The conversation between the victims and the judge was simply to establish that these young witnesses understood the difference between a lie and the truth and the importance of speaking the truth while in court. The state court's finding was not unreasonable. Nor has Matias shown that the admission of these brief statements was so improper that the result was a denial of his right to a fundamentally fair trial guaranteed by due process. This claim is denied.

VII. CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME EVIDENCE

Matias contends that the trial court erred by admitting expert testimony to describe CSAAS3 and instructing the jury that it could use this evidence in assessing witness believability.

Legal Standard

The Supreme Court "has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Holley, 568 F.3d at 1101. The Ninth Circuit has held that CSAAS testimony is admissible in federal child sexual abuse trials, where the testimony concerns general characteristics of victims and is not used to opine that a specific child is telling the truth. Brodit v. Cambra, 350 F.3d 985, 991 (9th Cir. 2003); United States v. Bighead, 128 F.3d 1329 (9th Cir. 1997) (per curiam). In Brodit, the Ninth Circuit recognized that CSAAS evidence "describes various emotional stages, experienced by sexually abused children, that may explain their sometimes piecemeal and contradictory manner of disclosing abuse." 350 F.3d at 991. The court observed that inconsistencies in a child's account of abuse, including delays in reporting, do not necessarily mean the child is lying. Id. Ultimately, the Brodit majority approved of the California Court of Appeal's holding in People v. Patino, 26 Cal.App.4th 1737 (1994), that the use of CSAAS evidence in a child abuse case does not necessarily offend a defendant's due process rights. Brodit, 350 F.3d at 991.

The Ninth Circuit has also rejected the contention that CSAAS testimony improperly bolsters the credibility of child witnesses and precludes effective challenges to the truthfulness of their testimony. See Bighead, 128 F.3d at 1330-31. In Bighead, the Ninth Circuit held that there was no abuse of discretion in the district court's admission of expert testimony about certain characteristics of child sexual abuse victims in the prosecution's rebuttal. See id. The court noted that the expert did not testify about the facts of the particular case, or about the particular victim, whom she had never examined. Id. Rather, the testimony was limited to evidence of "delayed disclosure" and "script memory," which were indicative of abused children as a class of individuals. Id. Further, in addressing a relevancy challenge, the court stated, "[the expert's] testimony had significant probative value in that it rehabilitated (without vouching for) the victim's credibility after she was cross-examined about the reasons she delayed reporting and about the inconsistencies in her testimony." Id. The court affirmed the defendant's conviction, holding that the district court did not abuse its discretion in permitting the expert to testify. Id. The court also noted that, "[r]egardless, the jury was free to determine whether the victim delayed disclosure or simply fabricated the incidents." Id. at 1331.

Discussion

The California Court of Appeal rejected Matias' claims regarding the admission of the CSAAS evidence and the related jury instruction:

Matias, 2012 WL 1490489, at * 10, 17-18 (footnotes omitted).

Here, the CSAAS expert only testified about the general nature of the syndrome. RT at 271-90. He explained that he did not interview any of the witnesses, investigate this case, or know any specific facts about the case. RT at 267. The trial court also repeatedly instructed the jury to consider the evidence only in deciding whether or not the alleged victims' conduct was not inconsistent with the conduct of someone who had been molested and in evaluating the believability of their testimony. RT at 256-57; 490; CT at 300.

Matias cites to no Supreme Court authority to support his claim that the trial court's decision to admit the CSAAS evidence violated his right to due process, and the evidence complied with the limits set forth by the Ninth Circuit in Brodit. Thus the admission of the evidence did not violate Matias' due process rights. See, e.g., Manson v. Grounds, No. 12-6043 CRB (PR), 2014 WL 688614, at *7-8 (N.D. Cal. Feb. 20, 2014) (rejecting petitioner's challenge to the admission of CSAAS evidence as foreclosed by Brodit).

Matias has also not shown that the trial court erred in instructing the jury with CALCRIM No. 1193. As noted by the California Court of Appeal, the jury instruction meets the requirements under state law that the admission of CSAAS evidence be accompanied by a limiting instruction informing the jury that the expert's testimony should not be used to determine whether the victim's molestation claim is true, but only to decide whether the victim's reactions are consistent with having been molested. See Patino, 26 Cal. App. 4th at 1745-46. This limiting instruction also ensured that the jury considered the CSAAS evidence as required by Brodit, 350 F.3d at 991, and would not use the evidence to bolster the credibility of the alleged victims. Matias has not shown that it was an error to issue this jury instruction or that it had a substantial or injurious effect on the verdict. Rather, the jury instruction protected Matias' rights by properly limiting the jury's use of the CSAAS evidence. He is not entitled to habeas relief for this claim.

VIII. SUFFICIENCY OF THE EVIDENCE

Matias argues that there was insufficient evidence to support the two counts of aggravated lewd conduct against A.

Background

Matias was found guilty of two counts of lewd or lascivious act on A. by force, duress, violence, menace or fear, in violation of California Penal Code section 288(b)(1). The relevant portions of section 288 state:

Cal. Penal section 288(a), (b)(1).

Matias argues there was insufficient evidence to support the convictions on theories that he used force or that he used duress. To establish lewd conduct by force it must be proven that the defendant used force "substantially different from or substantially greater than that necessary to accomplish the lewd act itself." Matias, 2012 WL 1490489, at *4. To establish lewd conduct by duress, it must be shown that "a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." Id. at *6.

Legal Standard

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 state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt therefore states a constitutional claim, see Jackson v. Virginia, 443 U.S. 307, 321 (1979), which, if proven, entitles him to federal habeas relief, see id. at 324.

The Supreme Court has emphasized that "Jackson claims face a high bar in federal habeas proceedings. . . ." Coleman v. Johnson, 132 S.Ct. 2060, 2062, 2064 (2012) (per curiam) (finding that the Third Circuit "unduly impinged on the jury's role as factfinder" and failed to apply the deferential standard of Jackson when it engaged in "fine-grained factual parsing" to find that the evidence was insufficient to support petitioner's conviction). A federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992). The federal court "determines only whether, `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Payne, 982 F.2d at 338 (quoting Jackson, 443 U.S. at 319). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt has there been a due process violation. Jackson, 443 U.S. at 324; Payne, 982 F.2d at 338.

Discussion

The California Court of Appeal discussed the relevant state law regarding force and duress to establish aggravated lewd conduct and denied this claim:

Matias, 2012 WL 1490489, at * 4-7 (footnote omitted).

Matias has not shown that the state court was objectively unreasonable in finding sufficient evidence to support the convictions in light of the high bar for this type of claim. The California Court of Appeal identified the evidence presented at trial with respect to A. and cited to applicable state law that found this type of evidence sufficient to demonstrate force and duress. Viewing this evidence in the light most favorable to the prosecution any rational trier of facts could have found the essential elements of the charged crimes beyond a reasonable doubt. A review of the record supports the findings of the state court and the evidence presented regarding A. was sufficient for a finding of force and duress to support the convictions. Matias has failed to meet his burden in showing that the state court's decision was an unreasonable application of Supreme Court authority. This claim is denied.

IX. DURESS JURY INSTRUCTION

Matias contends that the trial court erred in instructing the jury on the theory of aggravated lewd conduct by duress. He argues that instructing the jury on this theory was an error because it was not supported by the evidence.

Legal Standard

To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. See Estelle, 502 U.S. at 72. A conviction based on a general verdict is subject to challenge if the jury was instructed on alternative theories of guilt and may have relied on an invalid one. Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008) (per curiam). Such instructional error is not structural; rather, a reviewing court must apply the harmless—error analysis set forth in Brecht and determine whether the error had a "substantial and injurious effect or influence in determining the jury's verdict." Id. (reversing Ninth Circuit's application of structural error analysis and remanding for application of Brecht)

Discussion

The state court held that because it found that there was sufficient evidence to support the conviction based on duress, there was no merit to Matias' claim of instructional error. Matias, 2012 WL 1490489, at *16. The California Court of Appeal still looked to the merits of the claim and denied it:

Matias, 2012 WL 1490489, at *16-17.

Because there was sufficient evidence to support the conviction on a theory of duress, Matias is not entitled to relief on his jury instruction claim. Even if there was not sufficient evidence to support the duress theory, Matias is still not entitled to habeas relief because he has not shown that the state court's denial of this claim was unreasonable. The Supreme Court held in Pulido that a conviction based on a general verdict is subject to challenge if the jury was instructed on alternative theories of guilt and may have relied on an invalid one. 555 U.S. at 58. Matias has not shown that the duress theory was invalid or legally incorrect and, even if it was invalid, there is no evidence that the jury relied on it in reaching a verdict. The jury was properly instructed on the force theory for aggravated lewd conduct and there was sufficient evidence to support the force theory for both victims. CT at 206-16, 232-33, 245-46; RT at 116-18, 135-37, 162-64, 374. Finally, even if there was instructional error, the Brecht harmless-error analysis applies, and Matias has not shown the alleged error had a substantial and injurious effect or influence in determining the jury's verdict.4

X. CERTIFICATE OF APPEALABILITY

The federal rules governing habeas cases brought by state prisoners require a district court that issues an order denying a habeas petition to either grant or deny therein a certificate of appealability. See Rules Governing § 2254 Cases, Rule 11(a).

A judge shall grant a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), and the certificate must indicate which issues satisfy this standard. Id. § 2253(c)(3). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Here, petitioner has made no showing warranting a certificate and so none is granted.

CONCLUSION

For the foregoing reasons, the petition for writ of habeas corpus is DENIED. A Certificate of Appealability is DENIED. See Rule 11(a) of the Rules Governing Section 2254 Cases.

IT IS SO ORDERED.