REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Virginia A. Phillips, 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 April 15, 2015. Respondent filed an Answer on August 6, 2015. Petitioner filed a "Denial and Exception to Respondent's Return, etc." on September 9, 2015, constituting Petitioner's Reply ("Reply").
BACKGROUND
A jury found Petitioner guilty of one count of committing a lewd or lascivious act on a child, "I.O.," in violation of California Penal Code section 288(a), and two counts of communicating with a minor, I.O. and "H.G.," with intent to violate California Penal Code sections 288(a) and 311.4(b), in violation of California Penal Code section 288.3(a) ("luring") (Reporter's Transcript ["R.T.] 1060-62; Clerk's Transcript ["C.T."] 254-56, 371-72).1 Petitioner admitted having suffered three prior convictions for which he served prison terms within the meaning of California Penal Code section 667.5(b) (R.T. 1067-69; C.T. 378-79). For the present crimes, the sentencing court imposed a prison term of thirteen years (R.T. 1095; C.T. 384-87).
The California Court of Appeal vacated the luring convictions to the extent those convictions were based on California Penal Code section 311.4(a) rather than Penal Code section 288(a) and resentenced Petitioner on those convictions (Respondent's Lodgment 6, pp. 18-19; see People v. White, 2014 WL 5233941 (Cal. App. Oct. 15, 2014)). The Court of Appeal also modified the judgment to increase Petitioner's custody credits but otherwise affirmed the judgment (Respondent's Lodgment 6, p. 18; see People v. White, 2014 WL 5233941 at *11). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 8).
SUMMARY OF TRIAL EVIDENCE
The following summary is taken from the opinion of the California Court of Appeal in People v. White, 2014 WL 5233941 (Cal. App. Oct. 15, 2014). See Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012), cert. denied, 133 S.Ct. 2766 (2013) (presuming correct statement of facts drawn from state court decision); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).
Prosecution Evidence
Charged Conduct
On May 24, 2012, two eighth grade girls, H.G. and I.O., were doing homework after school in the children's section of the E.P. Foster Library in Ventura. At the time, H.G. was 14 years old and I.O. was 13 years old. Appellant, a 44-year-old man whom the girls did not know, walked up to them, touched or shook their hands, and said hello. The girls started laughing nervously because they were caught off guard.
Appellant asked the girls how old they were, and they told him. He told them that they were "sexy" and "beautiful" and that they should make "porno" movies and have their photos taken. "But," he said, "don't tell anyone."
Appellant told the girls that he attended Brooks Institute, a film school in Ojai, and wanted to make a film with them and put it on Facebook or YouTube. He said to H.G., "Let's use your camera," referring to the camera on her cell phone. H.G. lied and said that it was broken. The girls did not tell appellant to leave because they thought he was just joking and would go away.
Indicating a corner of the library, appellant said, "Let's go over there and shoot a movie." At first H.G. said, "No, thanks, we need to get our homework done." Eventually, the girls went with appellant to one of the book aisles near the corner of the room, which H.G. thought was "creepy."
Appellant told I.O., "I'm going to drop a book, and you pick it up." He told H.G. to film I.O. while she picked up the book. H.G. pantomimed filming.
Appellant took a book from the shelf, dropped it on the ground, and I.O. picked it up quickly. Appellant told I.O. to turn around slowly for him so he could see her body. She refused at first, but after he pleaded with her, I.O. turned around quickly. He grabbed I.O.'s hand and kissed it for a few seconds. I.O. felt shocked, uncomfortable, and scared.
At that point, H.G. lied and said that her mom was waiting outside and they needed to go. The two girls gathered their possessions and started to head out of the library. Appellant followed them. He told I.O. to give him her phone number so that they could film more movies. I.O. gave appellant a fake number and said, "we've got to go."
Appellant asked I.O. if he could hug her and she said, "No thanks." He said, "Come on, please." I.O. again said, "No thanks." Appellant nonetheless hugged I.O. with both arms and kissed her neck for a few seconds. I.O. could feel his lips and saliva. The girls left the library. A nearby friend's mother called the police, who arrested appellant.
Uncharged Conduct
Samantha E.
Early on the morning of February 8, 2012, Samantha E., a 19-year-old woman from Ojai, received a call from her friend Anthony around 3:00 a.m. Anthony said that he and Scotty, another of Samantha's friends, were supposed to give appellant a ride. Samantha had not previously met appellant. She agreed to drive the three men around.
Samantha drove them to two houses in Ventura and one in Oxnard. Each time, she stayed in the car with Anthony and Scotty while appellant went into the house for a few minutes. Afterwards, Samantha drove to a gas station. She got out of the car with appellant, went into the station, and walked towards the women's bathroom. Appellant followed her.
Samantha used drugs, typically Ecstasy or Xanax and less frequently cocaine, "every once in a while." She had not taken any drugs or consumed alcohol that night. Appellant told her that he had "something to wake [her] up," which Samantha took to mean either cocaine or methamphetamine. Appellant told Samantha to go into the men's restroom with him, which she did. Samantha went into a stall, used the toilet, and opened the stall door to leave.
Appellant pushed his way into the stall. His penis was out of his pants. He grabbed Samantha so that her back was against the wall and pushed her head down towards his penis. Samantha resisted. She said that if he did not stop, she would hit him. She punched appellant in the face three times, and he hit her back in the face with the side of his fist. Samantha did not make any physical contact with appellant's penis.
Appellant forcibly kissed Samantha and stuck his tongue into her mouth. Samantha bit off an eraser-sized chunk of skin from appellant's tongue and spit it out, which caused him to turn away. She did not notice any blood. Samantha ran outside. That evening, she and a friend went to the police station and reported appellant's conduct.
K.R. and B.J.
About a year or two before the incident at the library, K.R., a 14-year-old girl, was staying overnight at the house of a family friend in Ojai. K.R. went to sleep in the guest bedroom, the family friend was sleeping in her own bedroom, and the friend's 16-year-old son, B.J., was sleeping in his own bedroom.
K.R. awoke around 1:30 a.m. when she heard someone outside the house trying to open the doors to her room. Appellant entered. He identified himself as a friend of B.J.'s and told K.R. not to wake up B.J.'s mom. He asked K.R. to get B.J. K.R. walked down the hall to B.J.'s room, woke him up, and told him that someone wanted to see him. B.J. went to the guest bedroom. K.R. went to the living room and watched television.
B.J. had spoken with appellant only once before that night. On that occasion, B.J. was in the laundry room on the outside porch when appellant, who lived with the landlord in another house on the property, walked up to him and started a conversation about sports. B.J. told appellant that he was involved with wrestling in high school. As far as B.J. knew, appellant had never entered the house where he and his mother lived before the night that K.R. stayed there.
When B.J. went to the guest bedroom, appellant seemed very "hyper" and talkative, as if he was under the influence of methamphetamine. Appellant asked B.J. if K.R. was his sister or girlfriend. B.J. said no. Appellant then offered to pay $100 for B.J. to let him have sex with K.R. Appellant showed B.J. a $100 bill. B.J. told appellant that K.R. was 14 years old and "it wasn't [his (B.J.'s)] decision to make."
The conversation turned to wrestling, and appellant asked B.J. to show him a wrestling move. When B.J. started to demonstrate the move, appellant threw him against the wall, pulled down his basketball shorts and underwear, and squeezed his butt cheek. Appellant's fingers were between B.J.'s butt cheeks. B.J. pushed appellant off, pulled up his shorts and underwear, and punched appellant in the face. When appellant asked B.J. why he had done that, B.J. said he was uncomfortable having appellant's hand on his buttock.
Appellant offered to pay B.J. $100 if he did not say anything to anyone about the incident. When B.J. reached for the $100, appellant took it back and said that he would only give B.J. the money if B.J. allowed him to have sex with K.R. B.J. again refused the offer.
B.J. told appellant that he was going to go check on K.R. and left the room. He talked to K.R. for a while and then checked the guest bedroom. It appeared that appellant had left, so B.J. went back to his room and fell asleep.
Defense Evidence
Joe Kenton employed appellant at his tree trimming business in Ojai and let appellant live with him for two to three years. His six-year-old son and 21-year-old stepson live[d] with him. To his knowledge, appellant never behaved in a sexually inappropriate manner around his children. Kenton knew that appellant would drink alcohol once in a while but was unaware of any drug use by appellant. Kenton did not believe that appellant had a drinking problem.
Michele Henderson met appellant in February or March 2011 while volunteering at Catholic Charities. The two began a romantic relationship about a month later. At the time, appellant was still living with Kenton. In March or April 2012, appellant moved in with Henderson, her parents, and her two youngest daughters — ages 10 and 13 as of April 2013 — at their home in Santa Paula.
Appellant and Henderson had a normal sexual relationship. Nothing about it made Henderson think that appellant had a sexual interest in children.
At trial Henderson was informed of the allegations involving K.R. and B.J. and Samantha E. She testified that she did not believe appellant would have committed those acts. Nothing about appellant's interactions with Henderson's daughters caused her to be concerned or think that he had a sexual interest in them. Henderson's two youngest daughters testified that appellant never made them feel uncomfortable, never touched them inappropriately, and never said anything to them that made them think he had a sexual interest in them.
Officer Ohad Katzman investigated the incident involving Samantha E. On March 30, 2012, he examined appellant's tongue. He found no evidence of trauma or scarring where Samantha E. claimed to have bit off the tip nearly two months earlier.
(Respondent's Lodgment 6, pp. 2-7; see People v. White, 2014 WL 5233941 at *1-4).
PETITIONER'S CONTENTIONS
In the Petition, Petitioner contends:
1. The trial court allegedly erred by admitting evidence of an uncharged offense against Samantha E. (Ground One);
2. The trial court allegedly erred by admitting evidence of Petitioner's uncharged, purportedly "non-sexual" conduct with respect to B.J. and K.R. (Ground Two);
3. The trial court allegedly violated Petitioner's rights to due process and confrontation by precluding defense counsel from impeaching I.O. with evidence of I.O.'s allegedly sexual "tweets" (Ground Three); and
4. Cumulative error allegedly denied Petitioner a fair trial (Ground Four).
Although Petitioner's Reply is not a model of clarity, the Reply appears to assert the following additional claims which Petitioner did not present to the California Supreme Court, and which hence are unexhausted:2
5. The trial court allegedly did not instruct the jury properly on the issue of intent (Ground Five);
6. Petitioner's convictions allegedly were procured by perjury and fraud (Ground Six); and
7. Petitioner's sentence allegedly violated Apprendi v. New Jersey, 530 U.S. 466 (2000) (Ground Seven).3
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, 132 S.Ct. 38, 44 (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 to Petitioner's exhausted claims, the Court looks to the last reasoned state court decision, here the decision of the Court of Appeal. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). With respect to the unexhausted claims, this Court may deny those claims on the merits if the claims are not "colorable." See Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005), cert. denied, 546 U.S. 1172 (2006).
DISCUSSION
I. Petitioner Is Not Entitled to Habeas Relief on Grounds One or Two of the Petition.
In Grounds One and Two, Petitioner challenges the introduction of evidence of Petitioner's uncharged conduct regarding: (1) Samantha E. (Ground One); and (2) B.J. and K.R. (Ground Two). The trial court admitted this evidence pursuant to California Evidence Code section 1108, which provides that, where a criminal defendant is accused of a sexual offense, the court has the discretion to admit evidence of the defendant's commission of another sexual offense (R.T. 340, 343, 361).4 Petitioner claims the challenged evidence was inadmissible under California Evidence Code section 1108 and was inflammatory and prejudicial in alleged violation of due process (Petition, attachment, ECF Dkt. 1, p. 17).5 The Court of Appeal rejected these claims, stating that the probative value of the evidence outweighed its prejudicial effect (Respondent's Lodgment 6, pp. 7-12; see People v. White, 2014 WL 5233941, at *4-7).
For several reasons, Petitioner's claims are not colorable. To the extent Petitioner contends the admission of this evidence violated state law, habeas relief is simply unavailable for state law violations. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also 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).
Moreover, Petitioner has not shown that the state court's rejection of his challenge to the admission of the evidence was contrary to, or an unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d). "`The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process.'" Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (citation omitted); see also Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991) (proper analysis on federal habeas review is "whether the admission of the evidence so fatally infected the proceedings as to render them fundamentally unfair"). "The Supreme Court has made very few rulings regarding the admission of evidence as a violation of due process." Holley v. Yarborough, 568 F.3d at 1101. "Although the Court has been clear that a writ should issue when constitutional errors have rendered the trial fundamentally unfair [citation], it has not yet made a clear ruling that admission of irrelevant or overly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Id.
Furthermore, and more specifically, the United States Supreme Court has never ruled that the admission of propensity evidence violates the Constitution. See Estelle v. McGuire, 502 U.S. at 75 n.5 ("we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of `prior crimes' evidence to show propensity to commit a charged crime"). Therefore, Petitioner cannot obtain habeas relief on any such claim. See Jennings v. Runnels, 493 Fed. App'x 903, 906 (9th Cir. 2012), cert. denied, 135 S.Ct. 96 (2014) (the Supreme Court has not held that propensity evidence violates Due Process, and the "absence of Supreme Court precedent on point forecloses any argument that the state court's decision [denying challenge to admission of propensity evidence] was contrary to or an unreasonable application of clearly established federal law") (citation omitted); Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008), cert. denied, 555 U.S. 1117 (2009) (rejecting habeas petitioner's challenge to introduction of propensity evidence, where petitioner could point to no Supreme Court precedent establishing that admission of otherwise relevant propensity evidence violated the Constitution); Alberni v. McDaniel, 458 F.3d 860, 864 (9th Cir. 2006), cert. denied, 549 U.S. 1287 (2007) (rejecting challenge to admission of propensity evidence in light of Supreme Court's express refusal to consider the issue in Estelle v. McGuire).
Accordingly, because the Court of Appeal's decision was not contrary to, or an unreasonable application of any clearly established Supreme Court law, Petitioner is not entitled to habeas relief on Grounds One or Two of the Petition. See Moses v. Payne, 555 F.3d 742, 758-59 (9th Cir. 2009) (habeas relief unavailable where the Supreme Court had articulated no "controlling legal standard" on the issue); Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir.), cert. denied, 555 U.S. 871 (2008) (where Supreme Court "expressly left [the] issue an `open question,'" habeas relief unavailable); 28 U.S.C. § 2254(d). Petitioner is not entitled to federal habeas relief on Grounds One or Two of the Petition.
II. The Exclusion of I.O.'s Tweets Does Not Merit Habeas Relief.
A. Background
California Evidence Code section 1103(c)(1), which is part of California's "Rape Shield Law," provides that evidence of specific instances of a complaining witness' sexual conduct is not admissible to prove consent by the complaining witness. Such evidence can be admissible to attack the credibility of the complaining witness, provided that the court finds the evidence relevant and not excluded by California Evidence Code section 352. See Cal. Evid. Code §§ 782, 1103(c)(5).
Prior to the commencement of trial, Petitioner's counsel filed a motion seeking to permit the introduction of evidence of allegedly sexual statements I.O. assertedly posted on her Twitter account (C.T. 160-73). The prosecution sought to exclude any such evidence (C.T. 59). At a hearing, Petitioner's counsel argued that the tweets were proper impeachment evidence because they allegedly showed that I.O. was willing to discuss sexual matters publicly and that Petitioner allegedly "did not utter those words or do those things" described by I.O. (R.T. 422-25). Petitioner's counsel said the evidence was not precluded by California's Rape Shield Law because Petitioner was not offering the evidence to show consent, but rather to show that I.O., not Petitioner, "brought up these sexual matters" (R.T. 425, 429-30).
The trial court ruled the evidence inadmissible under the Rape Shield Law, reasoning that the only relevance of the tweets was "to cast the victim . . . [as] an inappropriately promiscuous young woman" (RT. 436). The court noted that, in Petitioner's pretrial statement to police, Petitioner had denied "any encounter along the order and magnitude of the one described" (R.T. 436). The court stated that there was no evidence that the tweets were fabricated or that they were directed to men, and that the tweets did not tend to prove or disprove whether I.O. and "by implication, [H.G.] as well" fabricated the sexual nature of the encounter (R.T. 428, 437). The court also ruled that, under California Evidence Code section 352, the prejudicial effect of admitting the evidence outweighed any alleged probative value (R.T. 437-38).
The Court of Appeal affirmed, ruling that the evidence was not probative of I.O.'s credibility because I.O. never testified that she was sexually naive, and that the tweet evidence "was in no way relevant to whether she felt shocked, uncomfortable, and scared when [Petitioner], a strange man who was speaking and acting inappropriately towards her, touched her hand" (Respondent's Lodgment 6, p. 13; see People v. White, 2014 WL 5233941, at *7-8). The Court of Appeal observed that there was no evidence that I.O., as opposed to Petitioner, "gave the incident a sexual dimension" (Respondent's Lodgment 6, p. 13; see People v. White, 2014 WL 5233941, at *8). The Court of Appeal stated that the alleged tweets were not evidence that I.O. gave false testimony, and that I.O.'s reaction to Petitioner's advances was not an element of the charged offenses (Respondent's Lodgment 6, p. 13; see People v. White, 2014 WL 5233941, at *8). The Court of Appeal concluded that the exclusion of the irrelevant evidence did not violate the constitution (Respondent's Lodgment 6, p. 13; see People v. White, 2014 WL 5233941, at *8).
B. Discussion
As indicated above, the correctness of a state court's evidentiary ruling presenting only an issue of state law is not reviewable on federal habeas corpus. Estelle v. McGuire, 502 U.S. at 67-68. In limited circumstances, however, the exclusion of crucial evidence may violate the Constitution. See Holmes v. South Carolina, 547 U.S. 319, 319 (2006) ("[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense") (citations and internal quotations omitted); Chambers v. Mississippi, 410 U.S. 284, 302 (1973) ("Chambers"); Chia v. Cambra, 360 F.3d 997, 1003 (9th Cir. 2004), cert. denied, 544 U.S. 919 (2005) ("The Supreme Court has made it clear that the erroneous exclusion of critical, corroborative defense evidence may violate both the Fifth Amendment due process right to a fair trial and the Sixth Amendment right to present a defense.") (citations and internal quotations omitted).
However, "Chambers . . . does not stand for the proposition that the defendant is denied a fair opportunity to defend himself whenever a state . . . rule excludes favorable evidence." United States v. Scheffer, 523 U.S. 303, 316 (1998). "While the Constitution . . . prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury." Holmes v. South Carolina, 547 U.S. at 320 (citations omitted); see also Moses v. Payne, 555 F.3d at 758. Thus, "the Constitution permits judges to exclude evidence that is repetitive . . ., only marginally relevant or poses an undue risk of harassment, prejudice or confusion of the issues." Holmes v. South Carolina, 547 U.S. at 326-27 (citations, internal brackets and quotations omitted).
In Michigan v. Lucas, 500 U.S. 145 (1991), the Supreme Court held that a defendant does not have an unconditional right to introduce evidence of a sexual assault victim's prior sexual history. Id. at 149. The Court ruled that the right to present otherwise relevant evidence "is not without limitation," and "may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Id. at 149 (citations and internal quotations omitted).6
In the present case, consent could not have been a viable defense for Petitioner. See People v. Soto, 51 Cal.4th 229, 238, 119 Cal.Rptr.3d 775, 245 P.3d 410 (2011) ("For over 100 years, California law has consistently provided that children under age 14 cannot give valid legal consent to sexual acts with adults. [citation]. The Legislature has drafted the child molestation laws to make issues regarding the child victim's consent immaterial as a matter of law in these cases.").7 As the Court of Appeal observed, I.O.'s alleged reaction of shock in response to Petitioner's conduct was irrelevant to the issue of whether Petitioner committed a lewd and lascivious act on I.O. in violation of California Penal Code section 288(a). See People v. Lopez, 19 Cal.4th 282, 289, 79 Cal.Rptr.2d 195, 965 P.2d 713 (1998) (any touching of a child under the age of 14 violates section 288(a), "even if the touching is outwardly innocuous and inoffensive, if it is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim.").
Petitioner's defense theory was that the conversation between Petitioner and the girls supposedly had been a friendly conversation bereft of any sexual content and that Petitioner assertedly did not actually kiss I.O. The jury heard a tape of a police interview with Petitioner following the incident in which Petitioner claimed, among other things: (1) Petitioner told the girls they looked like "movie stars" who should be in movies and asked them to do a scene; (2) Petitioner said the girls should make a video; (3) the girls did not suggest that they make a video; (4) Petitioner did not suggest that he throw a book on the floor for the girls to pick up; rather Petitioner assertedly threw the book and then picked it up himself; (5) Petitioner did not tell the girls they should be in porno movies; (6) Petitioner did not offer to take photographs of the girls; (7) one of the girls hugged Petitioner willingly at Petitioner's request; and (8) Petitioner did not kiss the girl he hugged (R.T. 685-87, 694; C.T. 463-78). In this interview, Petitioner did not claim that I.O. had initiated or offered any sexual conversation during the encounter. No other evidence suggested I.O. had done so. Thus, the tweets were inconsistent with Petitioner's version of the incident and were not corroborative of any evidence favorable to the defense.
In such circumstances, it was not unreasonable for the Court of Appeal to conclude that the exclusion of evidence of I.O.'s allegedly sexually explicit tweets did not violate Petitioner's constitutional rights. See Galvan v. Yates, 587 Fed. App'x 361, 362-63 (9th Cir. 2014) (in prosecution for multiple sex offenses against an intoxicated minor, exclusion of victim's prior sexual conduct and possession of condoms pursuant to California's Rape Shield Law did not warrant habeas relief; trial court reasonably concluded that evidence was irrelevant because it did not involve petitioner and was not probative of victim's "modus operandi" or credibility regarding consent); Farris v. Ryan, 396 Fed. App'x 358, 359 (9th Cir. 2010), cert. denied, 562 U.S. 1231 (2011) (California Court of Appeal's decision upholding exclusion of victim's prior conviction for prostitution and her "price list," pursuant to California's Rape Shield Law, not contrary to Michigan v. Lucas).
For the foregoing reasons, the Court of Appeal's rejection of Petitioner's challenge to the exclusion of I.O's tweets 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 of the Petition.
III. Petitioner's Claim of Cumulative Error Does Not Merit Habeas Relief.
Petitioner argues that the errors alleged in Grounds One, Two and Three of the Petition constituted cumulative error (Petition, attachment, ECF Dkt. 1, p. 24). The Court of Appeal rejected this claim, holding that, with the exception of the error identified in the luring convictions (which the Court of Appeal corrected), there was "no error to cumulate" (Respondent's Lodgment 6, p. 18; see People v. White, 2014 WL 5233941, at *10).
"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, 133 S.Ct. 426 (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, 133 S.Ct. 424 (2012) (citation omitted). Here, no such symmetry of otherwise harmless errors exists. 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 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 habeas relief on Ground Four of the Petition.
IV. Petitioner's Unexhausted Claim of Instructional Error Is Not Colorable.
"[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). 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 relevant inquiry is `whether there is a reasonable likelihood that the jury has applied the challenged instruction' in an unconstitutional manner." Houston v. Roe, 177 F.3d 901, 909 (9th Cir. 1999), cert. denied, 528 U.S. 1159 (2000) (quoting Boyde v. California, 494 U.S. 370, 380 (1990)). In challenging the failure to give an instruction, a habeas petitioner faces an "especially heavy" burden. Henderson v. Kibbe, 431 U.S. at 155.
The court instructed the jury concerning the elements of a section 288(a) violation, as follows:
The defendant is charged in Count 1 with committing a lewd or lascivious act on a child, [I.O.], under the age of 14 years, in violation of Penal Code, section 288(a).
To prove that the defendant is guilty of this crime, the People must prove that, number one, the defendant willfully touched any part of a child's body either on the bare skin or through the clothing; two, 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; and three, the child was under the age of 14 years at the time of the act.
The touching need not be done in lewd or sexual manner. Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child is not required.
It is not a defense that the child may have consented to the act.
(R.T. 951-52; C.T. 221).
Petitioner appears to contend the trial court should have instructed the jury regarding the provisions of California Penal Code section 11165.1(b)(4), which Petitioner asserts contains "the laundry list of defenses in this type of case to serve the intent phase of trial" (Reply, p. 8). Petitioner also contends the court should have instructed the jury regarding section 11165.1(b)(4) in response to the jury's question asking for "[c]larification and definition of: intent of arousing; appealing to; gratifying the lust; passions; sexual desires" (Reply, p. 8; see C.T. 253).8
Section 11165.1 defines the terms "sexual abuse," "sexual assault" and "sexual exploitation" as used in California's "Child Abuse and Neglect Reporting Act." Section 11165.1 defines "sexual abuse" to mean "sexual assault" or "sexual exploitation." The subdivision upon which Petitioner relies, section 11165.1(b)(4), states that "sexual assault" includes ""[t]he intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose."
Section 11165.1(b)4 does not concern the elements of the offense of committing a lewd or lascivious act on a child set forth in California Penal Code section 288(a). To the extent Petitioner contends section 288(a) required a particular type of touching or an intent to engage in a particular type of touching, Petitioner is simply mistaken. "`Any touching of a child under the age of 14 violates [section 288(a)], even if the touching is outwardly innocuous and inoffensive, if it is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim.'" People v. Lopez, 19 Cal.4th 282, 289, 79 Cal.Rptr.2d 195, 965 P.2d 713 (1998) (original emphasis); see Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006) ("Under California law, lewd and lascivious conduct does not require penetration, the molestation of any particular body part, or the touching of bare skin.") (citations omitted). The court properly instructed the jury in Petitioner's case. Accordingly, because Petitioner's jury instruction claim is not colorable, Ground Five is denied.
V. Petitioner's Unexhausted Claim That His Conviction Was Obtained By Perjury and "Fraud" Is Not Colorable.
In the Reply, Petitioner asserts that his conviction was obtained by means of perjury and fraud (Reply, pp. 2-3). It is unclear whether Petitioner intends to claim the evidence was insufficient to support his convictions or to claim that the prosecutor presented perjured testimony. For the reasons discussed below, neither of these unexhausted claims is colorable.
A. Sufficiency of the Evidence
Petitioner does not appear to dispute that the prosecution's evidence, if credited by the jury, sufficed to support his convictions. Rather, Petitioner contends the victims lied and that Petitioner did not engage in the conduct the victims described.
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).
Petitioner's claim that the evidence was insufficient because witnesses allegedly lied is not a colorable claim. In reviewing the sufficiency of the evidence, the court must consider the evidence in the light most favorable to the prosecution." United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc); see also McDaniel v. Brown, 558 U.S. 120, 133 (2010). The 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, 132 S.Ct. 2060, 2064 (2012) ("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, 132 S.Ct. 2, 4 (2011) ("it is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence admitted at trial").
Here, the jury evidently credited the victims' version of the incident. Under the Jackson v. Virginia standard, this Court cannot revisit the jury's credibility determinations. See Cavazos v. Smith, 132 S. Ct. at 4; McDaniel v. Brown, 538 U.S. at 131-34 (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); 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).
B. Claimed Presentation of Perjured Testimony
To the extent Petitioner claims the prosecution presented perjured testimony, any such claim is not colorable. The prosecution's knowing use of perjured testimony to obtain a conviction can violate due process. Napue v. Illinois, 360 U.S. 264, 269 (1959); see also United States v. Sherlock, 962 F.2d 1349, 1364 (9th Cir. 1989), cert. denied, 506 U.S. 958 (1992). However, Petitioner's "proof" of the victims' claimed perjury appears to consist solely of Petitioner's own conflicting statements. "[T]he fact . . . that other witnesses have conflicting recollections of events, does not establish that the testimony offered at trial was false." United States v. Croft, 124 F.3d 1109, 1119 (9th Cir. 1997). The question whether witnesses lied or erred in their perceptions or judgments is properly left to the jury. See United States v. Zuno-Arce, 44 F.3d 1420, 1422-23 (9th Cir.), cert. denied, 516 U.S. 945 (1995), overruled in part on other grounds, Valerio v. Crawford, 306 F.3d 742, 764 (9th Cir. 2002), cert. denied, 538 U.S. 994 (2003); see also United States v. Scheffer, 523 U.S. 303, 313 (1998) ("A fundamental premise of our criminal trial system is that `the jury is the lie detector.'") (original emphasis; quoting United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973), cert. denied, 416 U.S. 959 (1974)). The credibility of the witnesses, as well as the discrepancies between the witnesses' testimony and Petitioner's account of the incident as described in his statement to police, were issues for the jury to resolve. See United States v. Zuno-Arce, 44 F.3d at 1422-23. Accordingly, any claim that the prosecution presented perjured testimony is not a colorable claim.
For the foregoing reasons, Ground Six is denied.
VI. Petitioner's Unexhausted Apprendi Claim Is Not "Colorable."
In Apprendi v. New Jersey, 530 U.S. 466 (2000) ("Apprendi"), the United States Supreme Court held that, regardless of its label as a "sentencing factor," any fact other than the fact of a prior conviction that increases the penalty for a crime beyond the prescribed statutory maximum among other things must be "proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. In Blakely v. Washington, 542 U.S. 296 (2004) ("Blakely"), the Supreme Court held that the "statutory maximum" for Apprendi purposes "is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. . . ." Id. at 303 (emphasis omitted). In Cunningham v. California, 549 U.S. 270 (2007) ("Cunningham"), the Supreme Court held that a California judge's imposition of an upper term sentence based on facts found by the judge rather than the jury violated the Constitution. Id. at 293.
The prosecution charged Petitioner with a prior out-of-state conviction allegedly qualifying as a "strike" under California's Three Strikes Law, California Penal Code section 667(e)(1) (C.T. 102-05). Later, the prosecution dismissed the strike (R.T. 1059-60; C.T. 377-78).9 As previously indicated, Petitioner admitted having suffered three prior convictions for which he had served prison terms within the meaning of California Penal Code section 675.(b) (R.T. 1067-69; C.T. 378-79). Petitioner contends his sentence purportedly violated Apprendi because the sentencing court imposed an upper term sentence on the section 288(a) offense, allegedly in excess of the maximum, based on findings by the judge rather than the jury (Reply, p. 13).
Petitioner's claim is not colorable for several reasons. First, in 2007, prior to Petitioner's criminal proceedings, California amended its determinate sentencing statute in response to Cunningham, to provide that "[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." Cal. Penal Code § 1170(b), as amended by Cal. Stats. 2007, c. 3 (S.B. 40), eff. March 30, 2007). The statute now makes the upper term the "statutory maximum" for Cunningham purposes. Hence, a judge's discretionary imposition of an upper term sentence under the amended statute does not violate Cunningham. See Creech v. Frauenheim, 800 F.3d 1005, 1016-17 (9th Cir. 2015) (California Court of Appeal did not violate any clearly established law by rejecting claim that upper term sentence imposed under amended statute violated Cunningham); Chioino v. Kernan, 581 F.3d 1182, 1186 (9th Cir. 2009) (describing California's amended Determinate Sentencing Law as "amending [the law] to comply with the constitutional requirements of Cunningham"); Butler v. Curry, 528 F.3d 624, 652 n.20 (9th Cir.), cert. denied, 555 U.S. 9 (2008) ("Following the decision in Cunningham, the California legislature amended its statutes such that imposition of the lower, middle or upper term is now discretionary and does not depend on the finding of any aggravating factors.") (citations omitted); see also United States v. Booker, 543 U.S. 220, 233 (2005) (observing that the Court had "never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. . . . [W]hen a trial judge exercises his discretion to select a specific sentence within a defined range, that defendant has no right to a jury determination of the facts that the judge deems relevant.").
Second, even if the upper term had not constituted the statutory maximum, Petitioner's claim still would lack merit. The sentencing court imposed the upper term sentence based in part on Petitioner's admitted prior convictions (R.T. 1091-92). A sentencing judge's imposition of an upper term sentence based on prior convictions does not violate Cunningham. In endorsing a "prior conviction exception," the Apprendi Court cited Almendarez-Torres v. United States, 523 U.S. 224 (1998) ("Almendarez-Torres"). Apprendi, 530 U.S. at 487-90. In Almendarez-Torres, the Court ruled that an indictment was not defective for failure to charge the fact of a prior conviction used as a sentence enhancement, on the ground that the prior conviction was not an element of the offense. Almendarez-Torres, 523 U.S. at 238-47. Both Cunningham and Blakely reaffirm the holding in Apprendi that "[o]ther than the fact of a prior conviction," a jury must decide any fact that increases punishment beyond the statutory maximum using a beyond a reasonable doubt standard. See Cunningham, 549 U.S. at 288-89; Blakely, 542 U.S. at 301; see also Butler v. Curry, 528 F.3d at 643-44 ("we have repeatedly recognized our obligation to apply the Almendarez-Torres exception"); United States v. Martin, 278 F.3d 988, 1006 (9th Cir. 2002) ("Apprendi expressly excludes recidivism from its scope. Defendant's criminal history need not be proved to a jury beyond a reasonable doubt. [citations].").
In California, "the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term." See People v. Black, 41 Cal.4th 799, 813, 62 Cal.Rptr.3d 569, 161 P.3d 1130 (2007), cert. denied, 552 U.S. 1144 (2008); People v. Osband, 13 Cal.4th 622, 728, 55 Cal.Rptr.2d 26, 919 P.2d 640 (1996), cert. denied, 519 U.S. 1061 (1997); see also Rosenblum v. Yates, 489 Fed. App'x 165, 166 (9th Cir. 2012); Butler v. Curry, 528 F.3d at 642-43. This Court must defer to this principle of state law. See Butler v. Curry, 528 F.3d at 642. Therefore, "if at least one of the aggravating factors on which the judge relied in sentencing [Petitioner] was established in a manner consistent with the Sixth Amendment, [Petitioner]'s sentence does not violate the Constitution." See id. at 643. Here, because the Constitution did not forbid the sentencing court from imposing an upper term based in part on Petitioner's prior convictions, Petitioner's Cunningham claim is not colorable. See Rosenblum v. Yates, 489 Fed. App'x at 166; Chambers v. People of the State of Calif., 2010 WL 5200943, at *3 (E.D. Cal. Dec. 15, 2010) (where sentencing court imposed upper term based on petitioner's prior convictions, Cunningham challenge to sentence not colorable). Ground Seven is denied.
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) directing that Judgment be entered dismissing the Petition with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.
