REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Ronald S.W. Lew, United States Senor 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 October 15, 2015. The Petition asserts a single claim for relief alleging that the evidence was insufficient to support Petitioner's convictions on thirty counts of violating California Penal Code section 288(b)(1). Respondent filed an Answer on November 9, 2015.
Petitioner failed to file a Reply within the allotted time. On December 7, 2015, the Magistrate Judge ordered Petitioner to file a Reply on or before December 28, 2015. The December 7, 2015 Order was returned to the Court undelivered. Petitioner again failed to file a Reply within the allotted time. On January 7, 2016, the Magistrate Judge issued a Report and Recommendation recommending dismissal of the Petition without prejudice for failure to prosecute.
On January 26, 2016, the Court received a letter from Petitioner requesting an extension of time. On the same date, the Magistrate Judge withdrew the January 7, 2016 Report and Recommendation and granted Petitioner an extension of time to file a Reply. On February 25, 2016, Petitioner filed another request for an extension of time. On that date, the Magistrate Judge extended until March 22, 2016, the deadline for a Reply. Nevertheless, Petitioner again failed to file a Reply within the allotted time.
BACKGROUND
A jury found Petitioner guilty of: (1) thirty counts of committing a lewd act on Jane Doe, a child under the age of fourteen, by use of force or duress in violation of California Penal Code section 288(b)(1); (2) aggravated sexual rape of Jane Doe in violation of California Penal Code section 269(a)(1); and (3) attempted rape of Jane Doe in violation of California Penal Code sections 664 and 261(a)(1) (Reporter's Transcript ["R.T."] 686-97; Clerk's Transcript ["C.T."] 322-46, 361-70]. The jury found Petitioner not guilty of one other count of attempted rape (C.T. 371). The court sentenced Petitioner to a prison term of 183 years plus fifteen years to life (C.T. 373-74).
The California Court of Appeal affirmed the judgment (Respondent's Lodgment 9; see People v. Torres, 2014 WL 3670075 (Cal. App. July 24, 2014)). The California Supreme Court summarily denied Petitioner's petition for review (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. Torres, 2014 WL 3670075 (Cal. App. July 24, 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 court decision).
Jane Doe, born in February 1991, was five years old when her mother married defendant. Defendant lived with Doe in Orange County and became the father figure in her life. Doe's mother trusted defendant to be alone with Doe and her other children. Defendant began molesting Doe in Orange County when she was seven or eight years old. Defendant continued to molest Doe for the next five years.
The first time defendant molested Doe she was in the third grade. Defendant picked Doe up from a friend's house the day after a slumber party in order to take her to see her mother and her newly born baby sister at the hospital. Defendant told Doe he needed to stop at their apartment before they went to the hospital. Defendant directed Doe to come into the bathroom with him. Doe obeyed because she had been taught to respect adults.
Once in the bathroom, defendant sat down on the toilet, pulled his pants zipper down, and began playing with his penis. Defendant then reached into the shower and grabbed some conditioner, which he applied to his penis. Defendant told Doe to come closer. Though Doe was scared and in shock, she felt she had to obey defendant because he was her father figure and handled disciplinary matters in the family.
When Doe approached, defendant grabbed her hand and told her to play with his penis. Defendant told Doe to be a good girl and listen to him. Defendant held Doe's hand and moved it up and down on his penis. Then, defendant directed Doe to open her mouth while he placed his penis inside. Doe did not like it and tried to close her mouth, but defendant kept telling her to keep her mouth open. Defendant ejaculated, and told Doe to swallow the ejaculate. Doe did as she was told, though she felt like throwing up. Defendant told Doe she was a good girl and gave her some money. Defendant told her not to say anything to anyone because nobody would believe her. Later, defendant took Doe to visit her mother in the hospital. Doe did not tell her mother what had just happened because she was scared and did not think she would be believed.
Defendant molested Doe on more than 20 or 30 other occasions while the family lived in Orange County. One time, Doe was alone with defendant while he was driving to Lake Elsinore to help a relative move. Defendant pulled his penis out of his pants and told Doe to play with it. Doe was scared, but felt that she had to do what defendant demanded. Defendant made Doe put his penis in her mouth while he ejaculated.
On multiple occasions, defendant came into Doe's bedroom late at night and touched her breasts with his hands and mouth. Eventually, defendant started to digitally penetrate Doe's vagina, though she was not sure whether this activity began in Orange County or Riverside. Doe was too scared to tell anybody about the molestations. She felt embarrassed, nasty, and dirty.
When Doe was in the sixth grade, her family moved to Riverside. Defendant continued to molest Doe after the move.
Doe testified defendant molested her more than 20 times in Riverside.1
On one occasion while Doe was in the sixth grade, defendant took her into the master bedroom while Doe's mother was away. Defendant told Doe to take her pants off and lay on the bed. After she complied, defendant touched and kissed her breasts and body before inserting his fingers into her vagina. Defendant also put his mouth on Doe's vagina before he ejaculated on her stomach.
Doe tried to stop the molestations by telling defendant she planned to tell her mother what was happening. In response, defendant hit and slapped her. Doe repeatedly told defendant she hated him and wished he would die. Defendant would hit Doe's head, pull her ears, put his hand over her mouth, and tell her to shut up. On one occasion, a school counselor questioned Doe about some bruising on her face caused by defendant's blows. Doe lied about the source of her injury because she was afraid the police might come and take her sisters away from her home.
Doe's friend, Ariel S., sometimes spent the night at Doe's home in Riverside. Doe seemed really scared of defendant. On several occasions, Ariel observed defendant come into Doe's room in the middle of the night and call her out. Doe would leave with defendant for a while before returning and quickly getting back into her bed. The two girls began moving a large trunk in front of the bedroom door to prevent defendant from bothering Doe during the night. On one occasion, Ariel saw defendant grab Doe by her ear or shirt and treat her badly. When Ariel asked her friend why defendant was acting that way, Doe told Ariel that defendant was molesting her, but cautioned her not to tell anyone.
Doe told her mother that defendant had been molesting her when she was in the seventh or eighth grade. Her mother confronted defendant, and he eventually admitted that he had touched Doe inappropriately. Doe's mother told her daughter defendant was sorry for his actions. After that, the molestations stopped. Defendant and Doe's mother remained married.
When Doe was 19, she was home alone with defendant. While she was getting something to eat, defendant approached her in the kitchen. Doe felt like defendant might try to do something again. She left her plate of food in the kitchen and retreated to the bathroom. When she came out a few minutes later, defendant blocked her way. Doe felt that defendant was making advances, so she turned and walked out the front door. Doe was very upset and called her sister in tears. Saying she could not take it anymore, Doe told her sister about defendant's molestations. Doe's sister called the police.
At trial, defendant admitted touching Doe's chest and buttocks on two occasions when she was 13 years old. Defendant denied all the other charges.
(Respondent's Lodgment 9, pp. 2-6; see People v. Torres, 2014 WL 3670075, at *1-3).
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).
DISCUSSION
I. Background
Petitioner challenges the sufficiency of the evidence to support his convictions for violating California Penal Code section 288(b)(1).2 Section 288(b)(1) prohibits "willfully and lewdly" committing "any lewd or lascivious act" upon "a child who is under the age of 14 years" "by use of force, violence, menace or fear of immediate and unlawful bodily injury on the victim or another person" and "with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child." See Cal. Penal Code §§ 288(a), (b)(1).
The Petition alleges only generally that the evidence was insufficient to support Petitioner's conviction (Petition, p. 5). The Petition does not allege in what respect the evidence purportedly was insufficient. Petitioner cites, inter alia, People v. Veale, 160 Cal.App.4th 40, 72 Cal.Rptr.3d 360 (2008), which involved a challenge to a defendant's section 288(b)(1) convictions on the ground that the evidence was insufficient to show force, fear or duress. People v. Veale, 160 Cal. App. 4th at 42. The Court interprets the present Petition to assert a claim that the evidence purportedly did not suffice to prove force or duress on Jane Doe.
Petitioner raised this claim in the California Court of Appeal (see Respondent's Lodgment 4). The Court of Appeal ruled that the evidence was sufficient to show duress (Respondent's Lodgment 6, pp.9-10; see People v. Torres, 2014 WL 3670075, at *4-6).3
II. Governing Legal Principles
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, 132 S.Ct. 2060, 2065 (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).4 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, 132 S. Ct. at 2064 ("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"). 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, a 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, 132 S. Ct. at 2064.
III. Analysis
For purposes of section 288(b), "duress" means "a direct implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." People v. Cochran, 103 Cal.App.4th 8, 13, 126 Cal.Rptr.2d 416 (2002) (citations and internal quotations omitted). "The total circumstances, including the age of the victim, and her relationship to defendant are factors to be considered in appraising the existence of duress." Id. at 13-14 (citation, internal quotations and brackets omitted). "Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family." Id. (citations omitted). "[F]actors such as the position of dominance and authority of the defendant and his continuous exploitations of the victim may be considered." People v. Cardenas, 21 Cal.App.4th 927, 940, 26 Cal.Rptr.3d 567 (1994) (citations omitted). Psychological coercion can suffice. See People v. Cochran, 103 Cal. App. 4th at 48; see also Dumire v. Cate, 2012 WL 2390286, at *6 (C.D. Cal. May 15, 2012), adopted, 2012 WL 2390285 (C.D. Cal. June 25, 2012). Where the victim is young and is molested by her father in the family home, "in all but the rarest cases duress will be present." People v. Cochran, 103 Cal. App. 4th at 16 n.6 (nine year old victim).
In the present case, the evidence showed: (1) Petitioner was the primary disciplinarian and a "father figure" in the home; (2) the molestations began when Petitioner was in the third grade; (3) Doe listened to Petitioner because he was older and she had been taught to respect adults; (4) Petitioner repeatedly told Doe that she had to be a "good girl" and to listen to Petitioner; (5) after the first molestation, Petitioner gave Doe money and told her not to say anything to anyone because no one would believe her; (6) Doe did not tell her mother because Doe was scared, and she did not tell her older brothers because she was scared Petitioner would do something and no one would believe her; (7) the molestations usually occurred at night when everyone else was asleep or when Petitioner's mother or brothers were absent; (8) Doe's bedroom door had no lock, so Doe attempted to prevent Petitioner from entering by moving a chest or chair to block the door; (9) when Doe told Petitioner she was going to tell her mother, Petitioner slapped and hit Doe; (10) Petitioner pulled Doe's hair and ears and hit her on the head, bruising Doe's face; (11) once, when Doe was crying, Petitioner put a pillow over her face; and (12) Doe lied to a school counselor about a bruise because Doe was afraid the police would take her sisters away (R.T. 60-61, 66-68, 70-71, 75-77, 79, 85-86, 88-90, 98, 177, 490-91, 512, 516, 527-29). This evidence amply supported the conclusion that Petitioner accomplished the molestations by means of duress. See People v. Veale, 160 Cal. App. 4th at 46-47 (evidence sufficient to show duress where victim was seven at time of molestations, defendant was victim's stepfather and an authority figure in the household, molestations occurred when defendant and victim were alone in victim's bedroom and on one occasion the bedroom door was locked, victim feared defendant and victim feared that if she told anyone about the molestations defendant would kill her or her mother); People v. Cochran, 103 Cal. App. 4th at 15 (evidence sufficient to show duress where, among other things, the victim was nine years old, defendant was her father and much larger than she, the molestations occurred in the family home, videotape of the incident showed defendant directed and coached the reluctant victim in the acts of molestation, and defendant gave the victim money and told her not to tell anyone about the molestations or he could go to jail); Quintana v. Gipson, 2014 WL 4681017, at *4-5 (N.D. Cal. Sept. 19, 2014), aff'd, 621 Fed. App'x 475 (9th Cir. 2015), cert. denied, 2016 WL 110439 (U.S. March 21, 2016) (evidence sufficient to show duress where victim was five or six years old, petitioner was her father and possessed a significant size advantage and position of authority within the family, and petitioner told victim to be quiet while he molested her and told victim not to tell her mother about the molestations); Dumire v. Cate, 2012 WL 2390286, at *7 (evidence sufficient to show duress in the commission of oral copulation and rape where petitioner had known and cared for eleven-year-old victim all her life and lived with the family during most of the time he engaged in the molestations, petitioner often committed the molestations while the victim's mother was absent and in a secluded part of the house, and victim testified she felt powerless to resist because she feared petitioner would abandon her mother and victim would be taken from her mother's custody).5
Accordingly, the California Court of Appeal's rejection of Petitioner's challenge to the sufficiency of the evidence 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.
RECOMMENDATION
For the reasons discussed above, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) denying and 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.
