WILLIAM H. ORRICK, District Judge.
Petitioner Jesse Joseph Jimenez seeks federal habeas relief from his state convictions because (1) there was insufficient evidence that he annoyed or molested a child under the age of 18; (2) prejudicial evidence regarding his parole conditions was admitted; (3) the trial court gave incorrect jury instructions in several instances; (4) there was prosecutorial misconduct; (5) defense counsel rendered ineffective assistance; and (6) there was cumulative error. None of these claims has merit and, for the reasons set forth below, the petition for habeas relief is DENIED.
In December 2012, a Santa Clara County Superior Court jury found Jimenez guilty of committing a lewd and lascivious act on a child under the age of 14 (California Penal Code § 288(a)), and annoying or molesting a child under the age of 18 (id. § 647.6(c)(2)). After the jury rendered its verdicts, the trial court held a trial on the prior conviction allegations. It found that Jimenez had seven prior convictions for committing lewd and lascivious acts on a minor (violations of California Penal Code § 288). In 2013, Jimenez was sentenced to a total term of 85 years to life in state prison. His efforts to overturn his conviction in state court were unsuccessful. This federal habeas petition followed.
The victim of these crimes was AL., a 12-year-old girl, the daughter of B. Doe, a member of Jimenez's Bible study group:
(Ans., Ex. G (State Appellate Opinion, People v. Jimenez, No. H039607, 2014 WL 7150176 (Cal. Ct. App. Dec. 26, 2014) (unpublished)) at 6-8.)
The jury also heard evidence regarding prior uncharged offenses from S. Doe and A. Doe. S. Doe testified that Jimenez, a friend of her father, had sex with her many times when she was 14. (Ans., Ex. G at 4.) A. Doe testified that when she was 10, Jimenez, a friend of her father, woke her one night, led her to a sofa, bent her over, touched her breasts, and tried to kiss her. He also touched her breasts on another occasion. (Id. at 5.)
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this Court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).
"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
When presented with a state court decision that is unaccompanied by a rationale for its conclusions, a federal court must conduct an independent review of the record to determine whether the state court decision is objectively reasonable. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). This "[i]ndependent review is not a de novo review of the constitutional issue, but rather, the only method by which [a federal court] can determine whether a silent state court decision is objectively unreasonable." See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "[W]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." See Harrington v. Richter, 562 U.S. 86, 98 (2011).
Jimenez claims there was insufficient evidence that he annoyed or molested a child under the age of 18, within the meaning of California Penal Code section 647.6. (Pet. at 6.) His conduct, he asserts, was not "objectively and unhesitatingly disturbing, regardless of his subjective intent." (Id.)
The state appellate court rejected this claim. It found there was evidence that there were at least three incidents that met the requirements of the statute. They occurred when Jimenez (1) swiped his hand on AL.'s arm while they were playing cards; (2) placed his flat hand on her thigh while she was trying on the shoes he bought her without her father's permission; and (3) tapped her with his feet while they were watching television. These incidents "constitute conduct that would be unhesitatingly irritating or disturbing to a normal person." (Ans., Ex. G at 11-12.) This was not a case, the state appellate court held, in which the evidence showed nothing "more than friendly noncriminal activity on the part of the defendant toward the girl." Id. (quoting People v. Carskaddon, 49 Cal.2d 423, 426 (Cal. 1957)). The state court noted that Jimenez did not challenge the sufficiency of the evidence as the two other elements of section 647.6, that the alleged victim was under the age of 18 and that there was a sexual motivation for his conduct. (Ans., Ex. G at 11.)
When reviewing a state court's conviction for sufficiency of the evidence, a federal court must determine 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." Jackson v. Virginia, 443 U.S. 307, 319 (1979). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt may the writ be granted. Id. at 324. "[T]he only question under Jackson is whether [the jury's] finding was so insupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, 132 S.Ct. 2060, 2065 (2012). In addition to this highly deferential standard, a federal court must accord "considerable deference" to a state court's determination that there was sufficient evidence under Jackson. Id.
Under section 647.6(a), "Every person who annoys or molests any child under 18 years of age shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment." "Annoy" and "molest" are synonymous and refer to "conduct designed to disturb, irritate, offend, injure, or at least tend to injure, another person." People v. Lopez, 19 Cal.4th 282, 289 (Cal. 1998). Touching is not required. Id. The prohibited conduct need only be conduct that is "(1) conduct a normal person would unhesitatingly be irritated by,' and (2) `conduct motivated by an unnatural or abnormal sexual interest." The jury must use an objective "normal person" standard, not a subjective one. Id. at 290. It is therefore
An offense under section 647.6(a) is deemed a felony if the defendant has a prior conviction for an offense enumerated under section 647.6(c)(2), which includes a conviction under California Penal Code § 288 for committing a lewd or lascivious act on a child under the age of 14. As noted above, the trial court found that Jimenez had many convictions under section 288. (Ans., Ex. G at 8.)
Sufficient evidence existed to support the jury's verdict. First, it is undisputed that AL. was under the age of 18 and that Jimenez had prior qualifying convictions under section 288. Second, there was evidence that Jimenez's conduct was objectively irritating or disturbing. Slowly swiping his hand along a 12-year-old's arm while staring into her eyes and placing the flat of his hand against her bare thigh are such conduct. The acts were uninvited attempts at physical intimacy. It was reasonable for the state court to determine that such conduct was objectively annoying. Because the state court's rejection of this claim was reasonable, its decision is entitled to AEDPA deference. The claim is DENIED.
Jimenez was under sex offender parole restrictions at the time he met AL. He was (1) prohibited from contacting anyone under the age of 18; (2) prohibited from contacting females between the ages of 12 and 18 years; (3) required to immediately inform his parole agent "regarding any contact with a minor, whether it is `accidental' or not'" and (4) prohibited from loitering within 100 yards of the perimeter of places where children congregate. (Ans., Ex. G at 21.) He claims it violated his right to due process and prejudiced him when the trial court admitted evidence of these parole restrictions. (Pet. at 9.) The Court construes this claim as an objection to the admission of character or propensity evidence.
This claim was rejected by the state appellate court. Such evidence was relevant to Jimenez's intent. Intent was an element of section 288, which is violated when a person touches a child with the specific intent "of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child." Cal. Penal Code § 288(a). Intent was also an element of section 647.6, with which Jimenez was also charged: "motivated by an unnatural or abnormal sexual interest." Jimenez's "contacts with AL. were obviously in violation of his sex offender parole conditions, and it could be reasonably inferred from his violations that defendant had the sexual intent required" to be found guilty for both offenses. (Ans., Ex. G at 21-22.) Furthermore, the parole restriction evidence was not "unduly prejudicial in light of the other trial evidence that had been admitted with regard to defendant's prior sexual offenses." (Id. at 22.) As noted, Jimenez's prior sexual victims, S. Doe and A. Doe, testified about their sexual molestation at his hands. (Id.)
Habeas relief is not warranted here because no remediable federal constitutional violation occurred. First, a petitioner's due process right concerning the admission of propensity evidence is not clearly established for purposes of review under AEDPA, the Supreme Court having reserved this issue as an "open question." Alberni v. McDaniel, 458 F.3d 860, 866-67 (9th Cir. 2006). Second, even if the evidence were prejudicial, 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). Third, any claim that the state court erred in admitting the evidence under state law is not remediable on federal habeas review. The state appellate court's ruling that the evidence was properly admitted under state law binds this federal habeas court. Bradshaw v. Richey, 546 U.S. 74, 76 (2005). Finally, due process is violated only if there are no permissible inferences that the jury may draw from the evidence. Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). Here, the jury could have made permissible inferences regarding Jimenez's intent in touching AL.
The state court's rejection of this claim was reasonable and is entitled to AEDPA deference. This claim is DENIED.
Jimenez raises six claims of instructional error. He claims the trial court gave incorrect instructions (A) in response to a jury question regarding the objective, normal person standard of section 647.6; (B) on the elements of section 288(a) and then failed to correct this instructional error in its response to a jury question; (C) on the use of prior act evidence; (D) on unanimity; (E) regarding the jury's confusion regarding consideration of punishment; and (F) to the jury when it was deadlocked.
Petitioner claims the trial court failed to provide legally correct answers to jury questions about the normal person standard of California Penal Code § 647.6. (Pet. at 8.) The relevant facts were summarized by the state appellate court:
(Ans., Ex. G at 12-13.)
On appeal, Jimenez contended that the trial court's response was erroneous. It incorrectly conveyed that AL.'s father's opinion could be considered, but not AL.'s. The court should have instructed the jury that "the phrase `normal person' meant that the jury must determine whether a `reasonable person' in the child's position, without regard to [defendant's] intent, would have been unhesitatingly offended." (Id. at 14-15.)
This claim was rejected by the state court. The trial court's response was a correct statement of the law. The law mandates the use of an objective standard (the "normal person"), which is to be considered without regard to the malfeasant's intent or whether the victim herself was irritated or disturbed. Lopez, 19 Cal. 4th at 289. The trial court's response accurately conveyed this. Furthermore, the original instructions on section 647.6 "were full and complete." (Ans., Ex. G at 16.)
"When a jury makes explicit its difficulties, a trial judge should clear them away with concrete accuracy." Bollenbach v. United States, 326 U.S. 607, 612-13 (1946). The trial judge has a duty to respond to the jury's request for clarification with sufficient specificity to eliminate the jury's confusion. See Beardslee v. Woodford, 358 F.3d 560, 574-75 (9th Cir. 2004). But when a trial judge responds to a jury question by directing its attention to the precise paragraph of the constitutionally adequate instruction that answers its inquiry, and the jury asks no follow up question, a reviewing court may "presume[] that the jury fully understood the judge's answer and appropriately applied the jury instruction." Waddington v. Sarausad, 555 U.S. 179, 196 (2009). Just as a jury is presumed to follow its instructions, it is presumed to understand a judge's answer to a question. Weeks v. Angelone, 528 U.S. 225, 234 (2000).
Habeas relief is not warranted here. First, this Court is bound by the state court's determination that the trial court's note correctly stated the law. Richey, 546 U.S. at 76. This dooms any claim that the trial court's note was an incorrect response.
Second, the jury asked no further questions. Therefore, this Court must presume that the jury fully understood the answer and appropriately applied the instruction. Sarausad, 555 U.S. at 196; Weeks, 528 U.S. at 234. Jimenez has not overcome this presumption. Because the state appellate court's determination was reasonable, it is entitled to AEDPA deference. Accordingly, this claim is DENIED.
The trial court gave the jury CALCRIM No. 1110,
These claims were rejected by the state appellate court. Any touching, even if it has the "outward appearance of innocence," is prohibited by the statute if it is performed "with the intent of arousing the sexual desires of either the perpetrator or the child." (Ans., Ex. G at 24-25.) It need not be lewd or lascivious. (Id. at 25.)
But the touching must be contemporaneous with the intent, an idea put forth and reinforced by the jury instructions. (Id. at 26.) Even the disputed instruction made this clear. CALCRIM No. 1110 requires that the defendant "committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child." (Ans., Ex. A, Vol. 2 at 215.) (emphasis added). Other instructions reinforced this notion. For example, CALCRIM No. 251 informed the jury that "[t]he crimes charged in this case require proof of the union, or joint operation, of act and wrongful intent." (Id. at 204.) It also said that a defendant "must not only intentionally commit the prohibited act, but must do so with a specific intent." (Id.) Another instruction, CALCRIM No. 225, stated that "The People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent/or mental state." (Id. at 201.) Jimenez's claims that the instruction misdirected or misled the jury, or gave them an inaccurate idea of the law, or were in need of supplement, were found to be without merit.
To obtain federal collateral relief for errors in the jury charge, a petitioner must show the disputed instruction by itself so infected the entire trial that the resulting conviction violates due process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). 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. In other words, a federal habeas 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)).
Habeas relief is not warranted here. The instructions clearly and repeatedly conveyed to the jury exactly what Jimenez believes should have been conveyed. The jury had to find that Jimenez acted with a contemporaneous sexual intent. Several instructions, as described above, communicated this. The state appellate court's rejection of this claim was reasonable, and therefore is entitled to AEDPA deference. This claim is DENIED.
The trial court instructed the jury on how to consider the evidence of prior sex offenses (CALCRIM No. 1191). The court did not include an optional prefacing sentence of the instruction, which reads, "[Do not consider this evidence for any other purpose [except for the limited purpose of <insert other permitted purpose, e.g., determining the defendant's credibility>].]" However, the trial court did a general instruction (CALCRIM No. 303) that if evidence was admitted for a limited purpose, the jury had to consider the evidence only for that limited purpose. (Ans., Ex. A, Vol. 2 at 208.)
During deliberations, the jury told the court it could not reach a verdict on Count 1 (section 288):
(Ans., Ex. G at 28-29.)
Jimenez claims that the court's response allowed the jury to use prior acts in an unrestricted way. These instructions also violated his constitutional right to have the jury determine that the actual elements of the charged crime had been proved. (Pet. at 13.)
This claim was rejected by the state appellate court. The trial court's response to the jury's questions "adequately informed the jury that the evidence [regarding] . . . the prior convictions and prior victims was admitted for a limited purpose":
(Ans., Ex. G at 31.)
Habeas relief is not warranted here. First, this Court is bound by the state court's determination that the trial court gave the jury the correct law during deliberations and in response to a juror's question. Richey, 546 U.S. 74, 76 (2005). Second, the jury asked no further questions. Therefore, this Court must presume that the jury fully understood the answer and appropriately applied the instruction. Sarausad, 555 U.S. at 196; Weeks, 528 U.S. at 234. Jimenez has not overcome this presumption.
Third, the instructions clearly limited the use of the evidence. First, the instructions reaffirmed that if evidence was admitted with instructions on its use, the evidence could be considered only within the bounds of those instructions. Second, the instructions clearly stated that the jury could not convict simply on the evidence of prior acts. The instructions reminded the jury that the evidence was but one part of the overall record and even if the prosecutor established that petitioner had committed the uncharged crimes, he still had to prove all the elements of the charged offenses true beyond a reasonable doubt. Because the state appellate court's determination was reasonable, it is entitled to AEDPA deference. Accordingly, this claim is DENIED.
Jimenez claims the trial court's unanimity instructions violated his right to due process. The jurors were given unanimity instructions CALCRIM Nos. 3500 ("Unanimity") and 3501 ("Unanimity: When Generic Testimony of Offense Presented").
CALCRIM No. 3500 reads:
CALCRIM No. 3501 reads:
CALCRIM No. 3501 is "an alternative instruction to CALCRIM No. 3500." People v. Fernandez, 216 Cal.App.4th 540, 556 (Cal. Ct. App. 2013). No. 3500 is given when "the evidence indicates the jurors might disagree as to the particular act defendant committed." But if there is no reasonable likelihood the jurors will disagree as to the particular acts, No. 3501 is given. Id. at 555-556 (citation omitted).
According to Jimenez these instructions impermissibly allowed the jurors to find guilt without agreeing that any one act sufficiently proved the charged offense. (Pet. at 15.)
This claim was rejected by the state appellate court. Under these instructions, the jury had to unanimously agree for each charge that Jimenez was guilty of committing a specific criminal act (and that they were agreed on which specific act it was for each charge),
Habeas relief is not warranted here. First, due process does not require that the jury agree as to the specific acts that constituted commission of the crimes charged. The Supreme Court has held that "different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict." McKoy v. North Carolina, 494 U.S. 433, 449 (1990) (Blackman, J, concurring); see also Schad v. Arizona, 501 U.S. 624, 631-32 (1991) (rule that jurors not required to agree upon single means of commission of crime, citing McKoy, applies equally to contention they must agree on one of the alternative means of satisfying mental state element of crime).
Second, the instructions cannot reasonably be read to support Jimenez's claim. The instructions required that the jury agree that Jimenez committed at least one criminal act for each charged offense. Either they could agree on one specific act for each charge, or agree that he committed all the acts alleged. This Court must presume the jurors followed their instructions. See Richardson v. Marsh, 481 U.S. 200, 211 (1987).
The state appellate court's rejection of Jimenez's claim was reasonable and is entitled to AEDPA deference. This claim is DENIED.
During deliberations, the jury sent this message to the judge: "Can we know the dates of the previous 2 convictions and the length of incarceration after those? [¶] Thank you!" The trial court instructed the jury to "refer to exhibits 4, 5 & 6." (Ans., Ex. G at 16-17.) Exhibits 4 and 5 contained abstracts of judgment for his prior convictions, which included the sentences imposed for those convictions.
Jimenez asserts the trial court should have admonished the jury that it was not to consider the punishment he might receive if convicted, or consider the punishment he received previously. He claims the failure to give this instruction violated his right to due process. (Pet. at 19.)
This claim was rejected by the state appellate court because the trial court had twice before instructed the jury that it was not to consider the possible punishment Jimenez might receive. (Ans., Ex. G at 16-17.)
In general, juries determine facts, judges determine sentences:
Shannon v. United States, 512 U.S. 573, 579 (1994).
Habeas relief is not warranted here. First, this Court must presume the jurors followed their instructions and disregarded the sentencing information in the exhibits. See Marsh, 481 U.S. at 211. Jimenez has not overcome this presumption. He provides nothing beyond speculation that the jury failed to follow their instructions. Second, there is no Supreme Court decision clearly establishing the constitutional impermissibility of a jury in a non-capital case considering what the defendant's punishment might be. Consequently, habeas relief must be denied. 28 U.S.C. § 2254(d). The case cited above, Shannon, contains precatory, not mandatory, language. It warns that as a general rule juries should not consider the possible sentence. It does not hold that a conviction is constitutionally invalid because a jury may have considered such information. The state appellate court's rejection of this claim was reasonable and is therefore entitled to AEDPA deference.
Jimenez claims the trial court's instructions to the jury during its deadlock were a coercive "Allen charge."
(Ans., Ex. G at 36-39.)
On appeal, Jimenez claimed the supplemental jury instructions were impermissible because they (1) singled out the dissenting juror by asking for the numerical division of the votes; (2) were coercive because they set a deadline for deliberations; (3) urged that a verdict be reached; (4) failed to remind the jury that a prior instruction (CALCRIM No. 3550 ("Pre-Deliberation Instructions")) was still in effect; and (5) vouched for CALCRIM No. 3551 "with the result that the jury's independent judgment was displaced." (Id. at 41.)
These claims were rejected by the state appellate court, which found "no improper coercion or Allen charge." (Id.) There was nothing inherently improper about asking for the numerical division of votes; the trial court did not set a deadline, but rather asked the jury to deliberate further while leaving open the possibility that agreement may not be reached; the jury was told to use its "independent judgment," not encouraged to displace their judgment "for considerations of compromise and expediency"; the trial court's response made repeating CALCRIM No. 3550 unnecessary: "So, essentially, we don't want somebody just to change their mind just to get it over with, or just to please somebody, or not change their minds for the same reason. So we don't want anyone to surrender their individual judgment." (Id. at 41.)
A criminal defendant tried by a jury is entitled to the "uncoerced verdict of that body." Lowenfield v. Phelps, 484 U.S. 231, 241 (1988). However, a supplemental jury charge to encourage a deadlocked jury to try to reach a verdict is
When faced with a claim of jury coercion, a reviewing court must "consider the supplemental charge given by the trial court `in its context and under all the circumstances.'" Lowenfield, 484 U.S. at 237 (quoting Jenkins v. United States, 380 U.S. 445, 446 (1965) (per curiam)). Factors to consider are "(1) the form of the instruction, (2) the time the jury deliberated after receiving the charge in relation to the total time of deliberation and (3) any other indicia of coerciveness." United States v. Steele, 298 F.3d 906, 911 (9th Cir. 2002). There is "nothing talismanic about any single element either making the charge valid or invalid; the fundamental question is whether the jury was improperly coerced, thus infringing the defendant's due process rights." Weaver v. Thompson, 197 F.3d 359, 365 (9th Cir. 1999). Under AEDPA, not only does a reviewing court ask whether the instructions were coercive, it also asks whether the state court's determination on the coercion question was reasonable. Parker v. Small, 665 F.3d 1143, 1148 (9th Cir. 2011).
Here, there is no plausible showing that the supplemental jury instructions were coercive. In fact, the Steele factors weigh against a finding of coercion. The form of the instruction was proper — it was a recitation to the jury of previously heard and legally correct instructions. The length of the jury's deliberations after the court's reinstruction — the jury rendered its verdicts later that same day — if anything weighs against a finding of coercion. They spent hours (not minutes) more in deliberations, which indicates that there were substantive discussions.
There are no other indications of coercion, as the state appellate court so thoroughly made clear. The jury was specifically and clearly instructed to (1) use its independent judgment; (2) not come to a verdict for improper reasons; and (3) be aware that a verdict may not be reached. The jury was simply asked to deliberate further.
The state appellate court's rejection of this claim was reasonable and is therefore entitled to AEDPA deference. This claim is DENIED.
Jimenez claims defense counsel rendered ineffective assistance by failing to object to (A) prosecutorial misconduct, and (B) the court's instructions and its responses to the jury's questions. (Pet. at 23.)
The state appellate court rejected these claims.
Jimenez claims the prosecutor committed misconduct by (1) arguing that evidence of grooming was sufficient for a conviction under section 288; (2) playing on the jury's sympathies and fears for the welfare of children; (3) arguing that there was no unanimity requirement under section 647.6; and (4) contending that B. Doe's subjective opinion was sufficient evidence to support a conviction under section 647.6.
A defendant's due process rights are violated when a prosecutor's conduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation and internal quotation marks omitted). Under Darden, the first issue is whether the prosecutor's conduct was improper; if so, the next question is whether such conduct infected the trial with unfairness. Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005). It is "the fairness of the trial, not the culpability of the prosecutor" that is the touchstone of the due process analysis. Smith v. Phillips, 455 U.S. 209, 219 (1982).
The state appellate court found no misconduct:
(Ans., Ex. G at 44-45.)
Habeas relief is not warranted here. The record shows that the prosecutor's statements were permissible comments on how properly admitted evidence proved the elements of the offenses. Nothing shows that the prosecutor led the jury to believe that evidence of grooming was sufficient on its own to prove guilt. Because there was no misconduct, defense counsel cannot have rendered ineffective assistance by failing to object. It is both reasonable and not prejudicial for defense counsel to forgo a meritless objection. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005). The state appellate court's rejection of this claim was reasonable and is therefore entitled to AEDPA deference. This claim is DENIED.
Jimenez claims the prosecutor played on the sympathies and fears of the jury by referring to him as a "wolf in sheep's clothing." The facts are:
(Ans., Ex. G at 45.)
On appeal, Jimenez asserted the prosecutor's words meant "that the prior three victims were molested due to a lack of vigilance by their caretakers and that it was necessary for this jury to send a message to the `wolf in sheep's clothing' before he could make [AL.] his fourth victim." (Id.)
This claim was rejected by the state appellate court. The prosecutor's comments were "warranted by the evidence and were unlikely to make the jury's decision rooted in sympathy and fear for children rather than the evidence":
(Id. at 46.)
Habeas relief is not warranted here. The comment was a reasonable inference the prosecutor made after citing supporting evidence, rather than an appeal to fears and sympathies. See United States v. Garcia-Guizar, 160 F.3d 511, 520 (9th Cir. 1998) (a prosecutor may refer to a defendant as a liar if commenting on the evidence and asking the jury to draw reasonable inferences). The evidence showed that Jimenez repeatedly became close to a church friend in order to get closer to the friend's children. A prosecutor's arguing facts supported by the record, and relevant to the charges, do not constitute a prohibited appeal to the jury's emotions, passions, or sympathy for the victim. Tan v. Runnels, 413 F.3d 1101, 1113, 1115 (9th Cir. 2005). The state appellate court's rejection of this claim was therefore reasonable and is entitled to AEDPA deference. This claim is DENIED.
Jimenez claims the prosecutor committed misconduct by arguing during rebuttal that there was no unanimity requirement as to section 647.6 because no touching was required. The state appellate court rejected this claim. Although the prosecutor's argument "was not a model of clarity," the trial court provided correct instructions on unanimity, which the jury is presumed to have followed. (Ans., Ex. G at 48.)
Habeas relief is not warranted here. The trial court instructed the jury that it was "to follow the law as I explain it to you." (Ans., Ex. B, Vol. 2 at 101.) If the attorneys' statements conflict with the court's instructions, the jury "must follow my instructions." (Id.) This Court must presume that the jury followed its instructions and applied the correct law. Marsh, 481 U.S. at 211. Jimenez has not overcome this presumption. The state appellate court's rejection of this claim was therefore reasonable and is entitled to AEDPA deference. This claim is DENIED.
Jimenez claims that during rebuttal the prosecutor misstated the "normal person" standard of section 647.6. The state appellate court found that there was no such misstatement, and rejected the claim.
Habeas relief is not warranted here. First, this Court must presume that the jury followed the instructions given by the trial court. Second, this Court is bound by the state court's determination that the prosecutor correctly stated the law. The state appellate court's rejection of this claim was therefore reasonable and is entitled to AEDPA deference. This claim is DENIED.
Habeas relief is not warranted here. This Court rejected the underlying claims regarding alleged instructional error. Because these claims lack merit, defense counsel cannot have rendered ineffective assistance by failing to object. It is both reasonable and not prejudicial for defense counsel to forgo a meritless objection. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005).
The state court's rejection of these claims was reasonable and is therefore entitled to AEDPA deference. These claims are DENIED.
Jimenez claims that even if the errors individually do not justify relief, the cumulative effect of them resulted in a fundamentally unfair trial. In some cases, although no single trial error is sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may still prejudice a defendant so much that his conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir. 2003). Where there is no single constitutional error existing, nothing can accumulate to the level of a constitutional violation. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002).
Habeas relief is not warranted here. Jimenez has not shown any errors. Therefore, he cannot show there was cumulative error. The state court's rejection of this claim was reasonable and is therefore entitled to AEDPA deference. This claim is DENIED.
The state court's adjudication of Jimenez's claims did not result in decisions that were contrary to, or involved an unreasonable application of, clearly established federal law, nor did they result in decisions that were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Accordingly, the petition is DENIED.
A certificate of appealability will not issue. Reasonable jurists would not "find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Jimenez may seek a certificate of appealability from the Ninth Circuit.
The Clerk shall enter judgment in favor of respondent and close the file.
