ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

ANDREW J. GUILFORD, District Judge.

Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that: (1) Petitioner's request for an evidentiary hearing is denied; and (2) Judgment be entered denying and dismissing the Petition with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner and counsel for Respondent.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Andrew J. Guilford, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on July 24, 2018. Respondent filed an Answer on September 12, 2018. On September 25, 2018, Petitioner filed a "Motion for Leave to File First Amended Petition, etc." On that date, the Magistrate Judge issued a Minute Order deeming the First Amended Petition filed as a matter of course. The prayer of the First Amended Petition contains a request for the appointment of counsel and a request for an evidentiary hearing.

On December 6, 2018, Respondent filed an Answer to the First Amended Petition and lodged various documents. On January 23, 2019, Petitioner filed a "Traverse/Reply, etc."

The documents Respondent lodged did not include Volume III of the Reporter's Transcript of Petitioner's trial and also did not include certain pages from Volume II. On February 15, 2019, the Magistrate Judge issued a Minute Order directing Respondent to lodge the missing documents. On February 19, 2019, Respondent lodged Volume III of the trial transcript. At the same time, Respondent indicated an inability to lodge the pages missing from Volume II, but represented that the missing pages concern a hearing on a motion to substitute counsel, a hearing not material to the claims alleged in the First Amended Petition.

BACKGROUND

A jury found Petitioner guilty of: (1) two counts of sex trafficking of a minor in violation of California Penal Code section 236.1(c) (Counts 1 and 2); (2) one count of possession of a controlled substance in violation of California Health and Safety Code section 11377(a) (Count 3); and (3) seventy-three misdemeanor counts of disobeying a court order in violation of California Penal Code section 166(a)(5) (Counts 4-77) (Reporter's Transcript ["R.T."] 2656-67; Clerk's Transcript ["C.T."] 665-740, 742-43). The jury found true the special allegation that the offense charged in Count 1 involved force, fear, fraud, deceit, coercion, violence, duress, menace or threat of unlawful injury within the meaning of California Penal Code section 236.1(c)(2) (R.T. 2656-57, 2660-61; C.T. 665). Petitioner admitted suffering a prior conviction qualifying as a serious felony within the meaning of California Penal Code section 667(a)(1) and a strike within the meaning of California's Three Strikes Law, California Penal Code sections 667(b)-(i) and 1170.12(a)-(d) (R.T. 2678; C.T. 744). Petitioner also admitted suffering prior convictions for which he served a prison term within the meaning of California Penal Code section 667.5(b) (R.T. 2676-78; C.T. 744). The court imposed a mandatory sentence of fifteen years to life on Count 1, doubled pursuant to the Three Strikes Law (see Cal. Penal Code §§ 667(e)(1); 1170.12(c)(1)) to a term of thirty years to life, and the court imposed concurrent terms on Counts 2 and 3 (R.T. 2707-08; C.T. 880-81). The Court imposed a consecutive five-year prior serious felony enhancement and a one year consecutive prior prison term enhancement (R.T. 2708; C.T. 880-81). The Court also sentenced Petitioner to one year jail terms on the seventy-three misdemeanor counts, with credit for one year each (Augmented Reporter's Transcript ["A.R.T."] 1065). Thus, Petitioner received a total prison sentence of thirty-six years to life (A.R.T. 1065-66; C.T. 894-99).

The California Court of Appeal corrected the abstract of judgment but otherwise affirmed (Respondent's Lodgment 1; see People v. Pitcher, 2017 WL 1488662 (Cal. App. Apr. 26, 2017). The California Supreme Court denied review summarily (Respondent's Lodgment 6).

SUMMARY OF TRIAL EVIDENCE

The Court has conducted an independent review of the Reporter's Transcript and has confirmed the accuracy of the following summary of the evidence in People v. Pitcher, 2017 WL 1488662 (Cal. App. Apr. 26, 2017). See Nasby v. McDaniel, 853 F.3d 1049, 1052-53 (9th Cir. 2017); see also Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state court decision). The Addendum to the First Amended Petition ("FAP Addendum") adopts the Court of Appeal's statement of the facts (FAP Addendum, p. 2).

Commercial Sex Trafficking of Doe

(Respondent's Lodgment 1, pp. 2-8; see People v. Pitcher, 2017 WL 1488662, at *1-4) (original footnotes renumbered).

PETITIONER'S CONTENTIONS

Petitioner contends:

1. The evidence allegedly was insufficient to support the "force allegation" charged in the special allegation to Count 1 (Ground One);

2. The trial court allegedly erred in failing to instruct the jury that it purportedly was required to find that the "force, fear or violence" charged in the special allegation to Count 1 caused the victim to do something she would not otherwise have done (Ground Two);

3. Petitioner's conviction on Count 2 allegedly violated the Double Jeopardy Clause and Due Process because the jury assertedly orally reported a not guilty verdict on that Count (Ground Three);

4. The trial court violated Petitioner's rights to due process and a fair trial by assertedly misstating California's "acquittal first" rule in response to a jury question concerning Count 2 (Ground Four);

5. The alleged sentencing disparities between sex trafficking and the lesser offenses of pimping and pandering assertedly delegated the "core judicial functioning of sentencing" to the prosecution, allegedly in violation of due process, equal protection and the separation of powers doctrine (Ground Five);

6. Petitioner's convictions on Counts 1 and 2 allegedly violated the Double Jeopardy Clause (Ground Six);

7. Petitioner's sentence allegedly violated the Eighth Amendment (Ground Seven); and

8. Alleged cumulative errors assertedly warrant federal habeas relief (Ground Eight).

STANDARD OF REVIEW

Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the 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); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.

Under the "unreasonable application" prong of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).

"In order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been `objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 562 U.S. 86, 101 (2011). This is "the only question that matters under § 2254(d)(1)." Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.

In applying these standards, the Court ordinarily looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 562 U.S. at 102; see also Cullen v. Pinholster, 563 U.S. 170, 188 (2011).

Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

DISCUSSION

The Court assumes arguendo Petitioner has not procedurally defaulted any of his claims. See Lambrix v. Singletary, 520 U.S. 518, 523-25 (1997); Ayala v. Chappell, 829 F.3d 1081, 1095-96 (9th Cir. 2016), cert. denied, 138 S.Ct. 244 (2017); Franklin v. Johnson, 290 F.3d 1223, 1229, 1232-33 (9th Cir. 2002). For the reasons discussed below, Petitioner's claims do not merit federal habeas relief.

I. Petitioner's Challenge to the Sufficiency of the Evidence to Support the Enhancement as to Count 1 Does Not Merit Federal Habeas Relief.

A. Legal Principles Governing Challenges to the Sufficiency of the Evidence

On habeas corpus, the Court's inquiry into the sufficiency of evidence is limited. Evidence is sufficient unless the charge was "so totally devoid of evidentiary support as to render [Petitioner's] conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment." Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir. 1975), cert. denied, 423 U.S. 1062 (1976) (citations and quotations omitted). A conviction cannot be disturbed unless the Court determines that no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 317 (1979). A verdict must stand unless it was "so unsupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, 566 U.S. 650, 655 (2012).

Jackson v. Virginia establishes a two-step analysis for a challenge to the sufficiency of the evidence. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). "First, a reviewing court must consider the evidence in the light most favorable to the prosecution." Id. (citation omitted); see also McDaniel v. Brown, 558 U.S. 120, 133 (2010). At this step, a court "may not usurp the role of the trier of fact by considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial." United States v. Nevils, 598 F.3d at 1164 (citation omitted). "Rather, when faced with a record of historical facts that supports conflicting inferences a reviewing court must presume — even if it does not affirmatively appear in the record that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id. (citations and internal quotations omitted); see also Coleman v. Johnson, 566 U.S. at 655 ("Jackson leaves [the trier of fact] broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that [the trier of fact] draw reasonable inferences from basic facts to ultimate facts") (citation and internal quotations omitted); Cavazos v. Smith, 565 U.S. 1, 2 (2011) ("it is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence admitted at trial"). The State need not rebut all reasonable interpretations of the evidence or "rule out every hypothesis except that of guilt beyond a reasonable doubt at the first step of Jackson [v. Virginia]." United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted). Circumstantial evidence and the inferences drawn therefrom can be sufficient to sustain a conviction. Ngo v. Giurbino, 651 F.3d 1112, 1114-15 (9th Cir. 2011).

At the second step, the court "must determine whether this evidence, so viewed, is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt." United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted; original emphasis). A reviewing court "may not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Id. (citations and internal quotations omitted; original emphasis).

In applying these principles, the federal habeas court looks to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Constitution requires to prove the offense "is purely a matter of federal law." Coleman v. Johnson, 566 U.S. at 655. The Court "must consider all of the evidence admitted by the trial court, regardless of whether that evidence was admitted erroneously." McDaniel v. Brown, 558 U.S. at 131 (citation omitted). The Court must conduct an independent review of the record when a habeas petitioner challenges the sufficiency of the evidence. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). The Court has conducted such an independent review.

B. Background

California Penal Code section 236.1(c) provides, in pertinent part, that "[a] person who causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of Section . . . 266h, [or] 266i . . . is guilty of human trafficking." "In determining whether a minor was caused, induced, or persuaded to engage in a commercial sex act, the totality of the circumstances, including the age of the victim, his or her relationship to the trafficker or agents of the trafficker, and any handicap or disability of the victim, shall be considered." Cal. Penal Code § 236.1(d). Consent by a minor victim is not a defense. Cal. Penal Code § 236.1(e).

The State proceeded on a theory that Petitioner intended to "effect or maintain" predicate violations of California's pimping statute, California Penal Code section 266h, and/or California's pandering statute, California Penal Code section 266i. Section 266h(b) provides, in pertinent part, that "[a]ny person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution . . ., when the prostitute is a minor, is guilty of pimping a minor, a felony. . . ." Section 266i provides, in pertinent part, that a person who "procures another person for the purposes of prostitution" or who "[b]y promises, threats, violence or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute" is guilty of pandering. Cal. Penal Code §§ 266i(a)(1), (2). In closing argument, Petitioner's counsel conceded that Petitioner engaged in pimping (R.T. 2523, 2560, 2602).

Section 236.1 provides for an increased punishment for human trafficking of a minor "when the offense involves force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person." Cal. Penal Code § 236.1(c)(2).

Cal. Penal Code § 236.1(h)(1). For purposes of this definition of "coercion," "serious harm" includes "any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue . . . commercial sexual acts in order to avoid incurring that harm." Cal. Penal Code § 126.1(h)(8).

Cal. Penal Code § 236.1(h)(4).

The State charged a special allegation that the Count 1 offense involved force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person (C.T. 285). The court instructed the jury that it should determine whether Petitioner used force, fear, deceit, coercion, violence or duress against the victim in committing the offense charged in Count 1 (R.T. 2422; C.T. 535). The court also instructed the jury, with modifications immaterial to the issue here, regarding the definitions of coercion, serious harm and duress (R.T. 2422-23; C.T. 535). The court further instructed the jury that consent was not a defense and that the jury could convict Petitioner "even if [the victim] was already an active prostitute" (R.T. 2421; C.T. 531-32); see Cal. Penal Code § 236.1(e); People v. Zambia, 51 Cal.4th 965, 981, 127 Cal.Rptr.3d 662, 254 P.3d 965 (2011) (victim's prior prostitution activities not a defense to pandering).

Additionally, because the prosecution proceeded on a theory that the offense charged in Count 1 was of a continuous, ongoing nature, the court instructed the jury that, to find Petitioner guilty of human trafficking and to find the special allegation true, the jury was required to find that "the required elements were of a continuous, ongoing nature" (R.T. 2424; C.T. 537). The court also instructed that all jurors must agree that Petitioner used force, fear, deceit, coercion, violence or duress, but were not required to agree on the specific means used (R.T. 2424; C.T. 536). As indicated above, the jury found the special allegation to be true (R.T. 2656-57; C.T. 665, 742).

Petitioner contends: (1) the evidence was insufficient to support the special allegation because the purported "few instances of slapping and minor battery" assertedly were "not continuous or even frequent"; and (2) the evidence allegedly did not show a causal link between the alleged force, fear or violence and the trafficking (FAP Addendum, pp. 3-6). Petitioner contends that the victim would have prostituted herself "with or without Petitioner's influence," and that any arguments or violence occurring in the relationship between Petitioner and the victim purportedly were personal and unrelated to the sex trafficking offense (id.).

The California Court of Appeal rejected these contentions, referencing inter alia the following evidence: (1) Petitioner slapped, kicked and choked the victim because "[s]he wasn't doing her job right"; (2) Petitioner put methamphetamine in the victim's drink: (3) Petitioner deceived the victim into believing he wanted to marry her, a ploy which Dr. Cooper testified pimps often employed to induce victims to work for them; (4) the victim stated in text messages that Petitioner "hit[] her every time [her] eyes close[d]" and "beat [her] for no reason"; and (5) Dr. Cooper testified that sex traffickers often employed such abuse as a means of maintaining control over their victims (Respondent's Lodgment 1, p. 11; see People v. Pitcher, 2017 WL 1488662, at *5).

C. Discussion

The evidence belies Petitioner's contention that only a "few instances of slapping and minor battery" supposedly occurred. The evidence, including the following, amply supported the conclusion that Petitioner used force, fear and violence throughout his relationship with the victim in order to commit the sex trafficking charged in Count 1:

1. Petitioner slapped the victim on her face or head more than once; Petitioner "slapped [her] around sometimes"; he would become violent when they argued or when the two were "coming down" from meth;

2. Petitioner slapped the victim "every now and then when [she and Petitioner would get into arguments"; this occurred "[l]ike every other week, when we would be coming down from crystal meth"

3. Sometimes Petitioner slapped the victim because he did not like what she said; Petitioner "slapped [her] around sometimes"; once he pushed her against a wall with his hand on her neck, making her cough; Petitioner pulled her hair a few times after an argument;

4. In Richmond, Petitioner hit Milky on the head or face in front of the victim, causing Milky to bleed; the victim was "shocked" and momentarily scared;

5. On July 25, 2013, in multiple texts to the victim's "best friend" Sandra, the victim confided: (a) "I can't take it. I swear I'm going to kill myself before he kills me"; (b) "I keep falling asleep so he's calling me fat, insulting me, saying I'm going to blade [i.e., walk the track], and he goes out and hits me every time my eyes close"; (c) "I can't stop. He don't care. And if I fall asleep I can't help that. And I don't know what to do. I'm not walking the track. And I'm sick of verbal abuse and being beat for no reason";

6. On July 27, 2013, the victim texted Sandra: "When I tell him how I feel he smashes on me so he says I'm always complaining that I'm unhappy" (The victim testified, however, that "smashes" supposedly did not refer to physical assault but only to arguing);

7. Petitioner threatened the victim with his belt and said he should hit her;

8. Melissa saw Petitioner yell at the victim, call the victim a bitch and slap her around for purportedly lying to Petitioner about posting a picture of Melissa on Instagram;

10. Another time, Melissa saw Petitioner become angry with the victim for not doing her job (prostitution) correctly, for not making phone calls and for being "lazy"; Petitioner "started hitting her [the victim] around," slapping her on the face and body; after the victim fell to the ground, Petitioner kicked the victim three times and continued to slap her; when the victim moved to the bed, Petitioner lay on top of her and put her in a chokehold with his arm on her neck; the fight lasted approximately thirty minutes; the victim had bruises on her arms and legs and said her stomach hurt and she could not breathe;

11. Melissa witnessed Petitioner assault the victim a third time when the Petitioner and the victim were high on crystal meth; and

12. Dr. Cooper testified that perpetrators of sex trafficking use "trauma bonding," a psychological form of coercion, to control their victims, including inflicting physical abuse on the victim and beating another person in front of the victim

(R.T. 641-45, 688-91, 708-10, 717-18, 740, 766-72, 773, 1028-29, 1201, 1661-65, 1669-72, 1805-06, 1825-29, 1412-13).

Furthermore, Petitioner focuses only on the "force," "fear" and "violence" elements of the special allegation. Petitioner thereby ignores the manifest sufficiency of the evidence to show the alternatives of "duress" or "coercion." Quite apart from force, fear or violence, the evidence permitted a rational juror to conclude that Petitioner repeatedly subjected the victim to coercion and duress in order to commit the sex trafficking alleged in Count 1. See People v. Guyton, 20 Cal.App.4th 499, 507, 229 Cal.Rptr.3d 117 (2018) (defendant's restrictions on victim, such as isolating her, constantly monitoring her, requiring her to stay in contact with him, requiring her to work so much she was exhausted and depriving her of the financial means to live all supported the conclusion that defendant deprived victim of liberty by force, fear, fraud, deceit, duress or menace in violation of California Penal Code section 236.1(b)). This evidence included the following:

1. Petitioner repeatedly verbally abused the victim, including calling the victim derogatory names; the victim told Petitioner that he made her feel "worthless, fat and stupid," and like "garbage" (R.T. 820).

2. Petitioner kept all of the money the victim earned through prostitution; the victim had to ask Petitioner for money for toiletry essentials, clothing and food;

3. Petitioner controlled and restricted the victim's contacts with others, including other men and the victim's friend Sandra; he "punish[ed]" the victim by preventing her communication with Sandra;

4. Petitioner put crystal meth in orange juice, the victim's favorite drink, because he wanted her to get high with him; after the victim drank the juice, Petitioner told her he had spiked it and it was "sinister" of him to have done so; this was the first time the victim used crystal meth, which was not a drug she "ever wanted to do";

5. On one occasion, Petitioner told the victim to tell her date that she wanted to buy meth from the date and wanted to get high with him;

6. The victim became sick after taking "bad pills" Petitioner had given her; Petitioner told her "you'll be ok, mollie [another drug the victim used] next time" (R.T. 821-22);

7. Petitioner controlled the money and the victim had no money, little personal property and was estranged from family in Florida; the victim did not know anyone in College Park, Richmond, Alexandria or California; the victim feared that Petitioner would leave her with no money and nowhere to go if she displeased Petitioner; Petitioner threatened to leave the victim "many times," and she would beg him not to do so; when the victim did not want to "walk the track" because she was cold and tired, Petitioner said "go back to Florida"; when the victim told Petitioner that she did not want to work any more, Petitioner said "[g]o find yourself a boyfriend"; and

8. Dr. Cooper testified that it is common for sex traffickers to degrade and humiliate their victims as a means of psychological control; Dr. Cooper testified that victims do not leave their traffickers because the victims have nowhere to go and because the traffickers have convinced the victims that the only thing for which they are good is exchanging sex for money.

(R.T. 620, 639, 641, 646-49, 651, 660, 662, 665-66, 669-71, 675-79, 686-87, 711, 719, 721, 745-47, 752-54, 767-69, 778-79, 782-83, 791, 795-97, 807, 816-18, 819-22, 823, 826, 870-71, 1045-46, 1199, 1234, 1415-18, 1693).

Although Petitioner contends that the prosecution did not argue fraud, deceit or duress (see FAP Addendum, p. 10), "[t]he Jackson analysis focuses on the sufficiency of the evidence, not the prosecution's argument; therefore, the prosecution does not have to argue every piece of evidence in closing in order to support the jury's verdict." Mitchell v. Epps, 2010 WL 1141126, at *34 (S.D. Miss. Mar. 19, 2010).

Petitioner also points to conflicting evidence and suggests contrary inferences. However, the Court must presume that the jury resolved evidentiary conflicts in favor of the prosecution, and the Court cannot revisit the jury's credibility determinations. See Cavazos v. Smith, 565 U.S. 1, 7-9 (2011) (jury entitled to credit prosecution experts' testimony despite conflicting testimony by defense experts); McDaniel v. Brown, 538 U.S. 120, 131-34 (2010) (ruling that the lower federal court erroneously relied on inconsistencies in trial testimony to deem evidence legally insufficient; the reviewing federal court must presume that the trier of fact resolved all inconsistencies in favor of the prosecution, and must defer to that resolution); Bruce v. Terhune, 376 F.3d 950, 958 (9th Cir. 2004) (federal habeas court reviewing sufficiency of the evidence could not revisit the jury's resolution of inconsistencies between the victim's testimony and the testimony of other witnesses); United States v. Franklin, 321 F.3d 1231, 1239-40 (9th Cir.), cert. denied, 540 U.S. 858 (2003) (in reviewing the sufficiency of the evidence, a court does not "question a jury's assessment of witnesses' credibility" but rather presumes that the jury resolved conflicting inferences in favor of the prosecution).

Finally, Petitioner argues that California lacked jurisdiction "over any event occurring in another state" (FAP Addendum, p. 3 n.1). Such argument lacks merit. See People v. Betts, 34 Cal.4th 1039, 23 Cal.Rptr.3d 138, 103 P.3d 883 (2005), cert. denied, 545 U.S. 1133 (2005) ("a state may exercise jurisdiction over criminal acts that take place outside of the state if the results of the crime are intended to, and do, cause harm within the state") (citations omitted); People v. Renteria, 165 Cal.App.4th 1108, 82 Cal.Rptr.3d 11 (2008) ("Territorial jurisdiction ... is ... ultimately a question of whether a state has a legitimate interest in a criminal act such that it is reasonable to convict a defendant of its commission in this state."); Cal. Penal Code § 27(a)(1) ("[a]ll persons who commit, in whole or in part, any crime within this state" are liable to punishment); see also Strassheim v. Daily, 221 U.S. 280, 285 (1911) ("Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if [the defendant] had been present at the effect, if the state should succeed in getting him within its power.") (citations omitted); United States v. Tello, 600 F.3d 1161, 1165-66 (9th Cir. 2010) (for purposes of federal statute criminalizing inducement to travel in commerce for prostitution, defendant who used internet in Arizona to send texts to undercover officer in California posing as underage girl, and who drove to California to meet with the purported underage girl, could be prosecuted in California).

For the foregoing reasons, the Court of Appeal's rejection of Petitioner's challenge to the sufficiency of the evidence to support the enhancement as to Count 1 was not contrary to, or an objectively unreasonable application of, any clearly established Federal Law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011). Petitioner is not entitled to federal habeas relief on Ground One.

II. Petitioner's Claim of Instructional Error Regarding Count 1's Special Allegation Does Not Merit Federal Habeas Relief.

A. Background

To prove "coercion" within the meaning of the special allegation charged in Count 1, the prosecution was required to show that the "serious harm" inflicted or threatened would have been sufficient "to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor, services, or commercial sexual acts in order to avoid incurring that harm." See Cal. Penal Code § 236.1(h)(8). To prove duress, the prosecution was required to show "a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to cause a reasonable person to acquiesce in or perform an act which he or she would otherwise not have submitted to or performed." See Cal. Penal Code § 236.1(h)(4). These definitions are contained in CALCRIM 3184. The court's instructions included, with modifications immaterial to the issue here, the definitions of "coercion," "serious harm" and "duress" (R.T. 2422-23; C.T. 535).

Petitioner asserts that the instruction improperly failed to indicate that the force, fear or violence supposedly must be sufficient to cause "someone to do what the person otherwise would not do" (FAP Addendum, pp. 7-10). According to Petitioner, failure so to quantify the requisite degree of force, fear or violence permitted the jury to find the special allegation true based on force, fear or violence unrelated to the alleged human trafficking and based on "some minor amount of force" (id., pp. 8-9).

The Court of Appeal rejected these arguments, observing that the instruction plainly stated that, to prove the special allegation, the prosecution had to prove that "when the Defendant committed the crime," he used force, fear, deceit, coercion, violence or duress against the victim (Respondent's Lodgment 1, p. 13; see People v. Pitcher, 2017 WL 1488662, at *6) (original emphasis). The Court of Appeal explained that, under California law, the terms "force or fear" had no technical explanation that required definition, and that, because consent was not a defense, the statute did not require a finding that the defendant used force sufficient to cause the victim to do something she otherwise would not have done (Respondent's Lodgment 1, pp. 13-14; see People v. Pitcher, 2017 WL 1488662, at *6-7).

B. Analysis

"[I]nstructions that contain errors of state law may not form the basis for federal habeas relief." Gilmore v. Taylor, 508 U.S. 333, 342 (1993); see also Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) ("the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief"); Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988) (instructional error "does not alone raise a ground cognizable in a federal habeas corpus proceeding"). When a federal habeas petitioner challenges the validity of a state jury instruction, the issue is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. at 72; Clark v. Brown, 450 F.3d 898, 904 (9th Cir.), cert. denied, 549 U.S. 1027 (2006). An instruction that does not render a petitioner's trial fundamentally unfair does not violate due process. Karis v. Calderon, 283 F.3d 1117, 1132 (9th Cir. 2002), cert. denied, 539 U.S. 958 (2003). The court must evaluate the alleged instructional error in light of the overall charge to the jury. Middleton v. McNeil, 541 U.S. 433, 437 (2004); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997), cert. denied, 522 U.S. 1079 (1998). The court must decide whether "there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Rhoades v. Henry, 638 F.3d 1027, 1042 (9th Cir. 2010), cert. denied, 565 U.S. 946 (2011) (citation and internal quotations omitted). "The question is not whether the jury could have done so, but whether there is a reasonable likelihood it did." Id. (citation omitted; original emphasis). The court should not engage in a "technical parsing" of the challenged instruction, but rather should consider the instruction as the jury would, "with a commonsense understanding of the instructions in the light of all that has taken place at trial." Id. at 1042-43 (citation and internal quotations omitted). In challenging a failure to give an instruction, a habeas petitioner faces an "especially heavy" burden. Henderson v. Kibbe, 431 U.S. at 155.

Here, as the Court of Appeal pointed out, the challenged instruction clearly told the jury that it was required to find that Petitioner used force, fear, deceit, coercion, violence, or duress when he committed the human trafficking offense alleged in Count 1 (R.T. 2422; C.T. 535). The Court of Appeal also ruled that, under California law, terms such as "force" and "fear" have no technical meaning and can be commonly understood, requiring no further definition. See People v. Griffin, 33 Cal.4th 1015, 1093-94, 16 Cal.Rptr.3d 891, 94 P.3d 1098 (2004) (term "force" in forcible rape statute had no specialized legal definition; fact that legislature specifically had defined "duress" and "menace" but not "force" "supports a conclusion that no specialized legal meaning was ever intended for that term"); People v. Anderson, 64 Cal.2d 633, 640, 51 Cal.Rptr. 239, 414 P.2d 366 (1966) (terms "force" and "fear" as used in the definition of robbery had no technical meaning and were presumed to be within the understanding of jurors); see also Soto v. Clark, 2011 WL 1256619, at *14 (C.D. Cal. Mar. 3, 2011), adopted, 2011 WL 1255653 (C.D. Cal. Mar. 31, 2011) (further definition of "force" not required in carjacking instruction). This Court cannot revisit the correctness of this interpretation of California law. See Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009); accord Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see also Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) ("state courts are the ultimate expositors of state law"). Further, in arguing a supposed need to prove the victim was compelled to do something she would not otherwise do, Petitioner appears to confuse the law's "reasonable person" standard with a nonexistent standard that would exonerate him if this particular (minor) victim was otherwise determined to engage in commercial sex. Such is not the law. See Cal. Penal Code § 236.1(e). Finally, the evidence, described above, that Petitioner repeatedly slapped, hit and kicked the victim belies Petitioner's argument that the force, fear and violence supposedly was "minor." In sum, Petitioner has failed to show that the instruction was erroneous, much less that the instruction rendered Petitioner's trial fundamentally unfair.

For all of the foregoing reasons, the Court of Appeal's rejection of this claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on Ground Two.

III. Petitioner's Claim Concerning the Alleged "Oral Not Guilty Verdict" on Count 2 Does Not Merit Federal Habeas Relief.

A. Background

Count 1 charged human trafficking between May 1, 2013 and August 22, 2013, and included the special allegation of "force, fear, etc." Count 2 charged human trafficking between November 1, 2013 and November 30, 2013 (a time during which Petitioner was incarcerated in the Santa Barbara County jail). Count 2 did not include any special allegation.

The trial court instructed the jury that, with respect to the lesser offenses to the crime of sex trafficking (i.e. pimping and pandering): "It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have found the Defendant not guilty of the corresponding greater crime" (R.T. 2426; C.T. 542). During deliberations, the jury sent the court a note saying "Can't all agree on Count 2 — Lesser Verdict Pimping" (C.T. 573). The Court of Appeal accurately described the ensuing events as follows:

(Respondent's Lodgment 1, pp. 15-17; see People v. Pitcher, 2017 WL 1488662, at *7-8).

Petitioner contends the record shows that the jury reported a verdict of not guilty on the human trafficking charge alleged in Count 2 (FAP Addendum, pp. 11-13). The Court of Appeal rejected this claim, ruling that the jury foreperson never actually reported that the jury had reached a verdict of not guilty on the human trafficking charge alleged in Count 2 (Respondent's Lodgment 1, pp. 17; see People v. Pitcher, 2017 WL 1488662, at *8). The Court of Appeal stated that the foreperson's comments, construed in their entirety, showed confusion concerning the manner in which the jury was to decide the charges, and even confusion regarding whether human trafficking was the greater or the lesser offense (Respondent's Lodgment 1, p. 17; see People v. Pitcher, 2017 WL 1488662, at *8). The Court of Appeal also observed that even defense counsel had agreed that the jury simply was confused and that further deliberations were warranted (Respondent's Lodgment 1, p. 17; see People v. Pitcher, 2017 WL 1488662, at *8). The Court of Appeal also stated that the jury had returned shortly thereafter with guilty verdicts on all counts and that the jurors all had agreed that no further deliberations were needed (Respondent's Lodgment 1, pp. 17-18; see People v. Pitcher, 2017 WL 1488662, at *8).

B. Analysis

The Double Jeopardy Clause of the Fifth Amendment "protects against successive prosecutions for the same offense after acquittal...." Monge v. California, 524 U.S. 721, 727-28 (1998) (citation omitted); Lemke v. Ryan, 719 F.3d 1093, 1099 (9th Cir. 2013), cert. denied, 571 U.S. 1212 (2014). "[T]he protection of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy." Richardson v. United States, 468 U.S. 317, 325 (1984) (citations omitted). "A verdict of acquittal in our justice system is final, the last word on a criminal charge, and therefore operates as a bar to a subsequent prosecution for the same offense." Bravo-Fernandez v. United States, 137 S.Ct. 352, 357-58 (2016) (citation, internal quotations and brackets omitted). An acquittal occurs when a factfinder's decision at trial, "whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged." United States v. Martin Linen Supply Co., 430 U.S. 564, 572 (1977).

Here, the Court of Appeal reasonably concluded that the jury foreperson never announced an acquittal on Count 2. As the Court of Appeal pointed out, the foreperson's comments showed at least: (1) the jury was confused regarding the manner in which the jury was supposed to decide the human trafficking charge alleged in Count 2 and the lesser offense of pimping; and (2) the foreperson was even confused as to which offense was the greater and which the lesser.

Moreover, there exists no clearly established United States Supreme Court holding that a jury verdict is final for purposes of double jeopardy when the verdict has been read aloud in court but rejected as ambiguous by the trial judge. See Drayton v. Castro, 319 Fed. App'x 632, 634-35 (9th Cir.), cert. denied, 556 U.S. 1272 (2009) (citing United States v. Hiland, 909 F.2d 1114, 1138 (8th Cir. 1990) ("If not accepted by the trial court, a verdict is not final for purposes of double jeopardy.") (citation omitted)); see also Allen v. Warden, 2015 WL 1809146, at *7 (C.D. Cal. Apr. 15, 2015).

Furthermore, as a matter of federal law, "[a] jury has not reached a valid verdict until deliberations are over, the result is announced in open court, and no dissent by a juror is registered." Harrison v. Gillespie, 640 F.3d 888, 898-99 (9th Cir. 2011), cert. denied, 566 U.S. 1042 (2012). Id. at 898-99 (citations, internal quotations and brackets omitted) omitted). "[T]he jurors' preliminary votes in the jury room do not constitute a final verdict, even if they are unanimous." Id. at 899 (citations omitted). "Instead, the verdict must be rendered by the jury in open court and accepted by the court in order to become final." Id. (citation and footnote omitted).

The Supreme Court's holding in Blueford v. Arkansas, 566 U.S. 599 (2012) further compels the rejection of Petitioner's claim. There, the trial court had instructed the jury on capital murder, first degree murder, manslaughter and negligent homicide. Id. at 602. After several hours of deliberations, the jury foreperson notified the court of a deadlock. Id. In response to the court's inquiry, the foreperson indicated that the jury was "unanimous against" the capital murder and first degree murder charges and was deadlocked on the manslaughter charge. Id. The court gave an Allen instruction (see Allen v. United States, 164 U.S. 492 (1896)) and told the jury to continue deliberating. Id. Later, the foreperson again indicated a deadlock, and the court declared a mistrial. Id. On retrial, the trial court denied the defendant's motion to dismiss the capital murder and first degree murder counts on Double Jeopardy grounds. Id. The state supreme court upheld the trial court's decision. Id. at 2049-50. The United States Supreme Court affirmed, holding inter alia that the foreperson's report the jury unanimously had rejected the capital murder and first degree murder counts "was not a final resolution of anything." Id. at 2050. The Blueford Court observed that, at the time of the foreperson's report, "the jury's deliberations had not yet concluded" and the jury returned to the jury room to deliberate further. Id. "The fact that deliberations continued after the [foreperson's] report deprives that report of the finality necessary to constitute an acquittal on the murder offenses." Id.

In the present case as well, there was no verdict of acquittal on any count which was announced in open court and accepted by the judge. The jury continued to deliberate after the confused discussion with the Court concerning Count 2, and the jury eventually arrived at a verdict of guilty on Count 2. No Double Jeopardy violation occurred.

For all of the foregoing reasons, the Court of Appeal's rejection of this claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011). Petitioner is not entitled to federal habeas relief on Ground Three.

IV. Petitioner's Challenge to the Trial Court's Statements to the Jury Concerning the "Acquittal First" Rule Does Not Merit Federal Habeas Relief.

Under California's "acquittal-first" rule, "a trial court may direct the order in which jury verdicts are returned by requiring an express acquittal on the charged crime before a verdict may be returned on a lesser included offense." People v. Bacon, 50 Cal.4th 1082, 1110, 116 Cal.Rptr.3d 723, 240 P.3d 204 (2010), cert. denied, 563 U.S. 995 (2011) (citation omitted). However, the jury has discretion to consider a lesser offense before returning a verdict on the greater offense. People v. Brooks, 3 Cal. 5th 1, 81, 219 Cal.Rptr.3d 331, 396 P.3d 480, cert. denied, 138 S.Ct. 516 (2017); People v. Kurtzman, 46 Cal.3d 322, 335-36, 250 Cal.Rptr. 244, 758 P.2d 572 (1988).

Here, as indicated above, the trial court instructed the jury according to CALCRIM No. 3517 as follows: "It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have found the Defendant not guilty of the corresponding greater crime" (R.T. 2426).

Petitioner contends that, in response to the jury's question concerning Count 2 set forth above, the trial court allegedly violated California's "acquittal first" rule (FAP Addendum, pp. 14-15). According to Petitioner, the trial court violated this rule by telling the jury that they could not "get to" the determination of a lesser offense of human trafficking alleged in Count 2 unless they all agreed Petitioner was not guilty of the greater offense. The Court of Appeal rejected Petitioner's claim, observing that the trial court made clear that the jurors could deliberate "in whatever order" they chose (Respondent's Lodgment 1, p. 19; see People v. Pitcher, 2017 WL 1488662, at *9).

Petitioner's claim fails for several reasons. First, the United States Supreme Court never has held that the federal constitution requires an "acquittal-first" rule. See Delgado v. Montgomery, 2017 WL 2801142, at *14 (C.D. Cal. May 8, 2017), adopted, 2017 WL 2800850 (C.D. Cal. June 28, 2017); Rodriguez v. Spearman, 2014 WL 2465945, at *19 (E.D. Cal. May 29, 2014), aff'd on other grounds, 653 Fed. App'x 870 (9th Cir.), cert. denied, 137 S.Ct. 384 (2016); Willover v. Scribner, 2007 WL 2122641, at *6 (N.D. Cal. July 23, 2007).

Second, as set forth above, the trial court clarified that the jurors could deliberate the charges in any order they chose (R.T. 2647) ("you can deliberate in whatever order you want"). In these circumstances, Petitioner has not shown any state law error, much less an error of constitutional dimension.

For the foregoing reasons, the Court of Appeal's rejection of this claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on Ground Four.

V. Petitioner Is Not Entitled to Federal Habeas Relief on His Claim Alleging Improper Delegation of Sentencing Authority.

The sentence for the human trafficking of any minor is fifteen years to life when the offense involves force, fear, fraud, deceit, coercion, violence, duress, menace or threat of unlawful injury. See Cal. Penal Code § 236.1(c)(2). The sentence for pimping or pandering a minor is three, four or six years when the minor is sixteen years of age or older. Cal. Penal Code §§ 266h(b)(1), 2669(B)(1).

Petitioner challenges the prosecution's discretion to charge the same conduct either as a violation of the human trafficking statute or as a violation of the pimping or pandering statutes. According to Petitioner, the sentencing disparities violate due process, equal protection and the separation of powers limits allegedly mandated by the California Constitution and the United States Constitution "by impermissibly delegating the core judicial function of sentencing to the prosecution" (FAP Addendum, pp. 16-18).

The Court of Appeal rejected this claim, ruling that the purported disparities did not violate the California Constitution and that "neither the existence of two identical criminal statutes prescribing different levels of punishments, nor the exercise of a prosecutor's discretion in charging under one such statute and not the other, violates equal protection principles" (Respondent's Lodgment 1, pp. 20-21; see People v. Pitcher, 2017 WL 1488662, at *9-10) (citations and quotations omitted) (citing, inter alia, United States v. Batchelder, 442 U.S. 114, 124-25 (1979)).

To the extent Petitioner asserts a claim based on the California Constitution, the claim fails at the threshold. Federal habeas relief is available only for violations of the Constitution, treaties or laws of the United States. See 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 5 (2010) ("it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts") (original emphasis); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (mere errors in the application of state law are not cognizable on federal habeas review).

Petitioner's federal separation of powers argument also fails. "[T]he doctrine of separation of powers embodied in the Federal Constitution is not mandatory on the States." Whalen v. United States, 445 U.S. 684, 689 n.4 (1980) (citation omitted); see also Huynh v. San Diego County Probation Dep't, 271 Fed. App'x 681, 682 (9th Cir. 2008); Chromiak v. Field, 406 F.2d 502, 505 (9th Cir. 1969), cert. denied, 396 U.S. 1017 (1970).

Petitioner's remaining federal constitutional challenge fails as well. The government retains "broad discretion" regarding whom to prosecute. Wayte v. United States, 470 U.S. 598, 607 (1985) (citations omitted); Hovey v. Ayers, 458 F.3d 892, 921 (9th Cir. 2006). The Supreme Court "has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants." United States v. Batchelder, 442 U.S. at 123-24 (citations omitted). "Whether to prosecute and what charge to file. . . are decisions that generally rest in the prosecutor's discretion." Id. at 124 (citations omitted); see also United States v. Edmonson, 792 F.2d 1492, 1497 (9th Cir. 1986), cert. denied, 479 U.S. 1037 (1987) ("When, as here, conduct violates more than one criminal statute, the government may generally elect which statute it wishes to charge.") (citations omitted). A presumption of regularity supports prosecutorial judgments, and "in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties." United States v. Armstrong, 517 U.S. 456, 463 (1996) (citation and internal quotations omitted)." "Courts generally have no place interfering with a prosecutor's discretion regarding whom to prosecute, [and] what charges to file. . . . [citations]." United States v. Banuelos-Rodriguez, 215 F.3d 969, 976 (9th Cir. 2000) (en banc).

Prosecutorial discretion, although broad, is not unlimited. The decision to prosecute may not be "based upon an unjustifiable standard such as race, religion or other arbitrary classification." Oyler v. Boles, 368 U.S. 448, 456 (1962). In the present case, there is no evidence that the prosecution based the decision to charge human trafficking on any such "unjustifiable standard."

Accordingly, the Court of Appeal's rejection of this claim was neither contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on Ground Five.

VI. Petitioner's Double Jeopardy Challenge to His Convictions on Counts 1 and 2 Does Not Merit Federal Habeas Relief.

As indicated above, Count 1 charged human trafficking between May 1, 2013 and August 22, 2013, and added the special allegation of "force, fear, etc." Count 2 charged human trafficking between November 1, 2013 and November 30, 2013 (a time during which Petitioner was incarcerated in the Santa Barbara County jail). The trial court instructed the jury that, to find Petitioner guilty on those counts and to find the special allegation on Count 1 to be true, the jury was required to find that the required elements "were of a continuous, ongoing nature" as opposed to "singular, unusual or rare" (R.T. 2424). The court further instructed the jury that the prosecution was not required to prove that the allegedly unlawful conduct "occurred on every day of a continuing ongoing relationship" (R.T. 2424).

Petitioner argues that, merely because human trafficking is a "continuing offense," the state supposedly could not prosecute Petitioner on the two counts without offending the Double Jeopardy Clause (FAP Addendum, pp. 19-21). According to Petitioner, the "brief interruption caused by Petitioner's arrest" could not change the "continuing" nature of his human trafficking (id., p. 19).

The Court of Appeal deemed this claim "both factually and legally inaccurate," observing that Count 1 related to Petitioner's conduct from May through August of 2013, while Count 2 related to conduct in November of 2013 while Petitioner was in jail following his arrest (Respondent's Lodgment 1, p. 23; see People v. Pitcher, 2017 WL 1488662, at *11).

The Double Jeopardy Clause generally forbids "multiple punishments for the same offense." Monge v. California, 524 U.S. 721, 727-28 (1998) (citation omitted). However, the Double Jeopardy Clause does not forbid punishment for "different criminal episodes occurring at different times." Custer v. Hill, 378 F.3d 968, 973 (9th Cir. 2004) ("Custer was not subjected to double jeopardy when Oregon prosecuted Custer for engaging in sodomy with his stepson between November 1, 1986 and June 19, 1987, after Custer was acquitted at a prior trial charging him with engaging in sodomy on June 20, 1987, because Custer was tried for different offenses that occurred at different times.") (original emphasis); see also Blockburger v. United States, 284 U.S. 299, 301-03 (1932) (Double Jeopardy Clause did not bar prosecution for two sales of a controlled substance to the same person which occurred on different dates; the first sale "had come to an end").

In California, "[a] continuous course of conduct crime is one in which the actus reus is defined as a series of acts over a period of time." People v. Culuko, 78 Cal.App.4th 307, 325, 92 Cal.Rptr.2d 789 (2000) (citations omitted). Pimping and pandering sometimes can be "continuous" crimes. See id.; see also People v. Leonard, 228 Cal.App.4th 465, 488-91, 175 Cal.Rptr.3d 300 (2014); People v. DeLoach, 207 Cal.App.3d 323, 332-34, 254 Cal.Rptr. 831 (1989).

California Penal Code section 654(a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." Although section 654 forbids "punishment for two crimes arising from a single, indivisible course of conduct," offenses committed on different occasions may be punished separately. People v. Hicks, 17 Cal. App. 5th 496, 514, 225 Cal.Rptr.3d 682 (2017). "This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken." Id. (citation and internal quotations omitted).

Here, the first human trafficking offense (Count 1) occurred over a period of three and a half months (from May 1, 2013 to Petitioner's August 22, 2013 arrest) (see R.T. 582-88, 1212-15). During this period, Petitioner was not incarcerated, and, largely in the presence of the victim, Petitioner used force, fear, deceit, coercion, violence or duress on the victim. The second offense (Count 2) began in November of 2013, over two months after the first offense had ended. In contrast to Petitioner's commission of the first offense, he committed the second offense through phone calls from jail. After his August, 2013 arrest, Petitioner had ample opportunity (months in fact) to reflect and to renew his intent to engage in trafficking. Under these circumstances, the Court of Appeal was not unreasonable in concluding that the two offenses were separate and could be punished separately without offending double jeopardy. It follows that the Court of Appeal's rejection of this claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on Ground Six.

VII. Petitioner's Claim of an Unconstitutional Sentence Does Not Merit Federal Habeas Relief.

Petitioner contends his sentence of thirty-six years to life violates the Eighth Amendment. The Court of Appeal disagreed, stating that: (1) the record did not support Petitioner's assertion that the facts showed "the bare minimum of conduct that meets the elements of human trafficking"; and (2) Petitioner had not shown that his sentence was disproportionate to his level of culpability (Respondent's Lodgment 1, pp. 24-28; see People v. Pitcher, 2017 WL 1488662, at *12-13).

The Eighth Amendment forbids the imposition of "cruel and unusual punishments." United States Constitution, Amend. VIII. In Rummel v. Estelle, 445 U.S. 263, 265-66, 284-85 (1980), the Supreme Court upheld a recidivist sentence of life with the possibility of parole for the crime of obtaining $120.75 by false pretenses, following prior convictions for fraudulent use of a credit card to obtain $80 worth of goods and services and passing a forged check for $28.36. In Solem v. Helm, 463 U.S. 277, 289-90, 296 (1983), the Court struck down a recidivist sentence of life without the possibility of parole for uttering a "no account" check for $100, "one of the most passive felonies a person could commit," where the petitioner had three prior third-degree burglary convictions and convictions for obtaining money by false pretenses, grand larceny and driving while intoxicated. In Harmelin v. Michigan, 501 U.S. 957, (1991) ("Harmelin"), five Justices, although in disagreement regarding the rationale, upheld a sentence of life without the possibility of parole for a first offense of possession of more than 650 grams of cocaine. In a concurring opinion, Justice Kennedy, joined by Justices O'Connor and Souter, opined that a non-capital sentence could violate the Eighth Amendment if it were grossly disproportionate to the crime. Id. at 996-1009. The Ninth Circuit subsequently recognized Justice Kennedy's concurring opinion as the "rule" of Harmelin. See United States v. Bland, 961 F.2d 123, 128-29 (9th Cir.), cert. denied, 506 U.S. 858 (1992).

In 2003, the United States Supreme Court decided two cases involving the constitutionality of sentences imposed under California's Three Strikes Law. In Ewing v. California, 538 U.S. 11 (2003), the Court upheld a sentence of twenty-five years to life for felony grand theft consisting of the non-violent theft of three golf clubs, where the defendant's prior offenses included convictions for robbery, theft, grand theft auto, petty theft with a prior, battery, multiple burglaries, possession of drug paraphernalia, appropriation of lost property, unlawful possession of a firearm and trespassing. In Lockyer v. Andrade, 538 U.S. 63 (2003) ("Andrade"), the Court upheld, under the standard of review set forth in 28 U.S.C. § 2254(d), the California Court of Appeal's determination that a total sentence of fifty years to life for two convictions of petty theft with a prior theft-related conviction, arising out of two non-violent incidents in which the petitioner shoplifted videotapes, was not unconstitutional. In Andrade, the petitioner's prior convictions were for theft, residential burglary, transportation of marijuana, and escape. Andrade, 538 U.S. at 66-67.

In Andrade, the United States Supreme Court acknowledged that, "in determining whether a particular sentence for a term of years can violate the Eighth Amendment, we have not established a clear or consistent path for courts to follow." Andrade, 538 U.S. at 72. However, the Court observed that "one governing legal principle emerges as `clearly established' under [28 U.S.C.] § 2254(d)(1): A gross disproportionality principle is applicable to sentences for terms of years." Id.

Thus, "[t]he threshold determination in the eighth amendment proportionality analysis is whether [Petitioner's] sentence was one of the rare cases in which a . . . comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." United States v. Bland, 961 F.2d at 129 (citations and quotations omitted); see Andrade, 538 U.S. at 73 (gross proportionality principle "applicable only in the `exceedingly rare' and `extreme' case"; citations omitted); Harmelin, 501 U.S. at 1001 (1991) (Kennedy, J., concurring) ("The Eighth Amendment does not require strict proportionality between crime and sentence"); see also Cocio v. Bramlett, 872 F.2d 889, 892 (9th Cir. 1989) ("we are required to defer to the power of a state legislature to determine the appropriate punishment for violation of its laws based on principles of federalism, unless we are confronted with a rare case of a grossly disproportionate sentence").

Petitioner's claim fails at this threshold level. As indicated above, the United States Supreme Court has rejected disproportionality challenges to extremely lengthy sentences imposed for crimes far less grave than Petitioner's crimes. See, e.g., Ewing (25 years to life for the non-violent theft of three golf clubs); Andrade (50 years to life for two non-violent petty thefts); Harmelin (life without the possibility of parole for possession of more than 650 grams of cocaine); Hutto v. Davis, 454 U.S. 370 (1982) (40 years for possession and distribution of marijuana); Rummel v. Estelle, 445 U.S. at 263 (1980) (life with the possibility of parole for obtaining $120.75 by false pretenses). A sentence of thirty-six years to life for aggravated human trafficking of a minor is not grossly disproportionate. See United States v. Alaboudi, 786 F.3d 1136, 1146 (8th Cir. 2015) (upholding life sentence under federal statute criminalizing sex trafficking of minor or by "force, threats of force, fraud or coercion"); United States v. Flanders, 752 F.3d 1317, 1341-43 (11th Cir. 2014), cert. denied, 135 S.Ct. 1188 (2015) (consecutive life sentences for multiple counts of sex trafficking involving fraud, drugging of victims and distribution of videos of sexual encounters with victims on the internet not unconstitutional, even though defendant had no criminal history); United States v. Mozie, 752 F.3d 1271, 1290-91 (11th Cir.), cert. denied, 135 S.Ct. 422 (2014) (upholding life sentence for child sex trafficking, where defendant had employed "some coercion and violence" and society had "a strong interest in deterring individuals from sexually exploiting children and in punishing those who do"); United States v. Cephus, 684 F.3d 703, 709 (7th Cir.), cert. denied, 568 U.S. 1004, 1075 (2012) (upholding sentences of life without the possibility of parole for sex trafficking crimes).

For all of the foregoing reasons, the Court of Appeal's rejection of this claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on Ground Seven.

VIII. Petitioner's Claim of Alleged Cumulative Error Does Not Merit Federal Habeas Relief.

"While the combined effect of multiple errors may violate due process even when no single error amounts to a constitutional violation or requires reversal, habeas relief is warranted only where the errors infect a trial with unfairness." Payton v. Cullen, 658 F.3d 890, 896-97 (9th Cir. 2011), cert. denied, 568 U.S. 944 (2012). Habeas relief on a theory of cumulative error is appropriate 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." Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011), cert. denied, 568 U.S. 959 (2012) (citation omitted).

The Court of Appeal rejected Petitioner's claim of alleged cumulative error, stating "there was no error to cumulate" (Respondent's Lodgment 1, p. 29; see People v. Pitcher, 2017 WL 1488662, at *13) (citations omitted). This determination was not objectively unreasonable. No symmetry of otherwise harmless errors exists here. Accordingly, the Court of Appeal's rejection of Petitioner's cumulative error claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal Law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on Ground Eight.

IX. The Court Should Deny Petitioner's Requests for Appointment of Counsel and for an Evidentiary Hearing.

The Court should deny Petitioner's request for appointment of counsel. See Knaubert v. Goldsmith, 791 F.2d 722, 728-30 (9th Cir.), cert. denied, 479 U.S. 867 (1986) (appointment of counsel for indigent habeas petitioner is discretionary, unless an evidentiary hearing is required).

The Court also should deny Petitioner's request for an evidentiary hearing. When evaluating the reasonableness of a state court's decision denying the merits of a petitioner's claim, the federal habeas court may not consider evidence unpresented to the state courts. See Cullen v. Pinholster, 563 U.S. 170, 185 (2011); Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013), cert. denied, 573 U.S. 981 (2014). In any event, Petitioner has failed to demonstrate that an evidentiary hearing would reveal anything material to any of Petitioner's claims.

RECOMMENDATION

For the reasons discussed above, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; (2) denying Petitioner's request for appointment of counsel; (3) denying Petitioner's request for an evidentiary hearing; and (4) denying and dismissing the Petition with prejudice.