SUSAN ILLSTON, District Judge.
Petitioner seeks federal habeas relief from his state convictions. For the reasons set forth below, the petition for such relief is DENIED.
In 2006, petitioner was convicted by a Santa Clara County Superior Court jury of two counts of sexual assault of a child under the age of 14, consequent to which petitioner was sentenced to 30 years-to-life. Evidence presented at trial demonstrated that in 2002 petitioner, who weighed 400 to 500 pounds at the time, sodomized his friend's daughter, Jasmine, when she was 5 or 6, while he babysat her. Petitioner was denied relief on state judicial review. This federal habeas petition followed.
As grounds for federal habeas relief, petitioner claims that (1) the prosecutor's committed misconduct by misstating the law; (2) there was insufficient evidence to support the jury's determination that the offenses were committed by force or duress; (3) admission of uncharged prior sex offenses violated his right to a fair trial; (4) the CALCRIM 1191 jury instruction violated his rights to due process and proof beyond a reasonable doubt;
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.
The prosecutor stated the following in his rebuttal statement:
(Ans., Ex. H, Vol. 9 at 1314-15.) Defense counsel objected on grounds that consent was not a defense or an issue in this case. (Id. at 1315.) The trial court overruled the objection, and reminded the jury that it was to adhere to the law as given by the court, and to reject any contradictory instructions given by counsel. (Id.) The state appellate court described petitioner's lengthy objection to the prosecutor's comments as follows:
(Id., Ex. E at 31.) The state appellate court disagreed with petitioner's interpretation, and rejected his claim:
(Id. at 31-32.) The state appellate court also rejected any finding of prejudice:
(Id. at 32.)
A defendant's due process rights are violated when a prosecutor's misconduct renders a trial "fundamentally unfair." Darden v. Wainwright, 477 U.S. 168, 181 (1986). Under Darden, the first issue is whether the prosecutor's remarks were improper; if so, the next question is whether such conduct infected the trial with unfairness so that there was a due process violation. Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005). In order to prevail on federal habeas review, the prosecutor's misconduct must have resulted in prejudice, that is, the misconduct must have had a substantial and injurious effect or influence in determining the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).
Petitioner is not entitled to habeas relief on this claim. The state court reasonably determined that there was no prosecutorial misconduct and that petitioner did not suffer prejudice. As to the first point, a review of the record shows that the prosecutor was merely listing what common sense defenses might be available in sexual assault cases and showing how such defenses were not available to petitioner. As these were correct statements of the law — and law already given by the trial court — the state appellate court reasonably rejected petitioner's assertion that the prosecutor committed misconduct. As to the second point, there has been no showing of prejudice. The trial court gave the jury correct instructions on the law, and admonished the jury that the court's instructions governed above any others. Jurors are presumed to follow the trial court's instructions. See Richardson v. Marsh, 481 U.S. 200, 206 (1987). Accordingly, petitioner's claim is DENIED for want of merit.
Petitioner claims that his sodomy convictions are unconstitutional because there was insufficient evidence of the elements of (A) force or (B) duress. The statute requires a finding that the act of sodomy (defined in Cal. Penal Code § 286) was committed by "force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." Id. § 268.
At trial, Jasmine testified about the first time petitioner sodomized her. After obeying his instructions to disrobe and lie face down on his bed,
(Ans., Ex. E at 3-4.)
The state appellate court found that there was sufficient evidence of force, and rejected petitioner's claim:
(Id. at 20.)
A federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992). Nor does a federal habeas court in general question a jury's credibility determinations, which are entitled to near-total deference. Jackson v. Virginia, 443 U.S. 307, 326 (1979). The federal court determines only whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319. 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 that [jury] finding was so insupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, No. 11-1053, slip op. 7 (U.S. May 29, 2012).
In determining whether "force" was used, the question for the jury is whether a criminal defendant used force to accomplish a sexual act against the victim's will, "not whether the force he used overcame [the victim's] physical strength or ability to resist him." People v. Griffin, 33 Cal.4th 1015, 1028 (Cal. 2004). "Although resistance is no longer the touchstone of the element of force, the reviewing court still looks to the circumstances of the case, including the presence of verbal or nonverbal threats, or the kind of force that might reasonably induce fear in the mind of the victim, to ascertain sufficiency of the evidence of a conviction." Id.
A rational juror could have found that petitioner used force to accomplish the sexual assault against Jasmine's will. As the state appellate court described, Jasmine testified that petitioner moved her body and pressed his adult weight against her five-year-old frame in order to sodomize her. On this record, the jury's finding was not so insupportable as to fall below the threshold of rationality. Accordingly, this claim is DENIED.
This claim also fails. First, it is a moot question, as there was sufficient evidence of force. The statute requires a finding of one or the other, not both. Second, a rational juror could have found the element of duress beyond a reasonable doubt. Duress
People v. Espinoza, 95 Cal.App.4th 1287, 1319-1320 (Cal. Ct. App. 2002) (citations and quotation marks omitted).
A rational juror could also have found that petitioner psychologically coerced Jasmine through the use of threats and implied threats. There was ample evidence of this, as the state appellate court described:
(Ans., Ex. E at 22.) In sum, petitioner's age, his greater size, his position of authority and trust, and his threats provided evidence from which a rational juror could have found that petitioner accomplished his crime by means of duress. This claim is DENIED.
At trial, Sonya M., petitioner's cousin, testified that petitioner sexually molested her from the age of 3 to 17. Petitioner claims that admission of this evidence violated his constitutional rights because (A) it was prejudicial character or propensity evidence, and (B) the statute under which it was admitted, Cal. Evidence Code § 1108, is unconstitutional.
Petitioner's character evidence claim fails because no remediable constitutional violation occurred. First, the United States Supreme Court has left open the question whether admission of propensity evidence violates due process. Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991). Because the Supreme Court has reserved this issue as an "open question," the Ninth Circuit has held that a petitioner's due process right concerning the admission of propensity evidence is not clearly established for purposes of review under AEDPA. Alberni v. McDaniel, 458 F.3d 860, 866-67 (9th Cir. 2006). Second, even if the evidence were irrelevant or 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). Accordingly, petitioner's claim is DENIED.
California Evidence Code section 1108(a) states that "[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101 [generally forbidding the use of character evidence to show action in conformity therewith], if the evidence is not inadmissible pursuant to Section 352 [which allows a trial court to exclude evidence if its probative value is outweighed by its prejudicial effect]." Petitioner bases his claim that court decisions upholding the constitutionality of § 1108 were wrongly decided. This is insufficient to show that the statute is unconstitutional. Courts have "routinely allowed propensity evidence in sex-offense cases, even while disallowing it in other criminal prosecutions." United States v. LeMay, 260 F.3d 1018, 1025 (9th Cir. 2001). "California's Rule 1108 was modeled after the Federal Rules, and contains an express requirement that courts balance the probative value of the evidence against its prejudicial effect." Wolff v. Newland, 67 Fed. Appx. 398 (9th Cir. 2003). This balancing requirement renders such state and federal rules "consistent with due process." Mejia v. Garcia, 534 F.3d 1036, 1047 n.5 (9th Cir. 2008). In the face of such authority, and because petitioner has not shown any persuasive or binding authority to support his position, the claim is DENIED.
Petitioner claims that the use of CALCRIM 1191 ("Evidence of Uncharged Sex Offenses"), the standard instruction regarding evidence admitted under § 1108, violated his right to due process because it allowed the jury to convict him based on his propensity to commit sexual offenses. The instruction, as given to petitioner's jury, reads:
(Ans., Ex. H, Vol. 9 at 1234-35.) Because such arguments have been routinely rejected by California courts, the state appellate court denied this claim. (Id., Ex. E at 25.)
Petitioner's claim lacks merit. The Due Process Clause of the Fourteenth Amendment requires the prosecution to prove every element charged in a criminal offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). The disputed instruction did nothing to lower this standard of proof, and, in fact, reinforced the reasonable doubt standard: "The People must still prove each element of every charge beyond a reasonable doubt." The jury was also instructed on the reasonable doubt burden of proof with CALCRIM No. 220 and on the elements of the underlying crimes. Because the disputed instruction did not fall afoul of Winship, petitioner's claim is DENIED.
Petitioner claimed on appeal and here that the reasonable doubt instruction, CALCRIM 220, was constitutionally deficient because
(Ans., Ex. E at 26.) The state appellate court rejected this claim because this argument has been repeatedly rejected by California courts. (Id.)
The state court reasonably determined that the instruction comported with constitutional requirements. First, petitioner has not shown that it is reasonably likely the jury would have applied the instruction as he suggests. There is nothing in the instruction that relieves the prosecution of its burden to prove petitioner's guilt beyond a reasonable doubt. Second, the other instructions reinforce the appropriate standard of proof and the parties' burdens. For example, the jury was clearly instructed that it must presume petitioner innocent and that this presumption could be overcome only if the evidence proved him guilty beyond a reasonable doubt. (Id., Ex. H, Vol. 9 at 1218.) If the evidence did not meet this standard, the jury was directed to acquit petitioner. (Id.) Also, the jury was specifically directed not to infer anything from petitioner's implicit assertion of his right to silence, viz., his not testifying at trial. (Id. at 1227-28.) Such instructions render unreasonable any assertion that the instruction relieved the prosecution of its burden, or placed any unconstitutional burden on petitioner. Third, the "comparison" argument was thoroughly rejected in an opinion from the Eastern District of California:
Rojas v. Grounds, No. 1:10-cv-01403-SKO-HC, 2012 WL 1604681 *20 (E.D. Cal., May 7, 2012.) Here, petitioner's jury received similar instructions that factual findings depended on many considerations, and that the process was not a simple weighing of evidence. Accordingly, this claim is DENIED.
The state court's denial of petitioner's claims did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, nor did it result in a decision that was 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). Petitioner may seek a certificate of appealability from the Court of Appeals.
The Clerk shall enter judgment in favor of respondent and close the file.
