EDWARD J. DAVILA, District Judge.
Petitioner has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his state conviction. Respondent filed an answer on the merits (Dkt. No. 14) and Petitioner filed a traverse (Dkt. No. 16). For the reasons set forth below, the petition for a writ of habeas corpus is DENIED.
On May 24, 2012, a jury found Petitioner guilty of forcible oral copulation (Cal. Penal Code § 288a(c)(2)), penetration with a foreign object (Cal. Penal Code § 289(a)(1)), corporal injury to a spouse (Cal. Penal Code § 273.5(e)), criminal threats (Cal. Penal Code § 422), false imprisonment (Cal. Penal Code § 236), and kidnapping (Cal. Penal Code § 207(a)). The court also found that petitioner had two prior strike convictions (Cal. Penal Code §§ 667(b) — (I), 1170.12), a prior serious felony conviction (Cal. Penal Code § 667(a)), and three prison priors (Cal. Penal Code § 667.5(b)). On June 21, 2012, the court sentenced petitioner to 157 years to life in state prison.
On November 28, 2012, the California Court of Appeal, First Appellate District ("Court of Appeal") affirmed the judgment in an unpublished decision. Resp. Ex. 8, Dkt. No. 14-10 at 187-208. The California Supreme Court denied review on August 13, 2014. Resp. Ex. 10, Dkt. No. 14-11 at 85.
On September 16, 2015, Petitioner filed a petition for writ of habeas corpus in the Del Norte County Superior Court ("Superior Court"). Resp. Ex. 16, Dkt. No. 15-1. The Superior Court denied the petition on January 4, 2016. Resp. Ex. 17, Dkt. No. 15-2. Petitioner then filed an original petition for writ of habeas corpus with the Court of Appeal on January 12, 2016. Resp. Ex. 11, Dkt. No. 14-12 at 3-72. The Court of Appeal summarily denied the petition on March 30, 2016. Dkt. No. 14-12 at 278. The California Supreme Court denied review on June 8, 2016. Resp. Ex. 15, Dkt. No. 14-13 at 172-73.
Meanwhile, on September 24, 2015, petitioner filed a timely petition for writ of habeas corpus in this Court. Dkt. No. 1. This Court stayed the petition pending resolution of all state habeas proceedings. Dkt. No. 8. On March 21, 2017, this Court lifted the stay. Dkt. No. 11.
The California Court of Appeal summarized the facts of the case as follows:
Resp. Ex. 8 at 3-7.
This Court may entertain a petition for a writ of habeas corpus "on 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); Rose v. Hodges, 423 U.S. 19, 21 (1975). The writ 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 v. Taylor, 529 U.S. 362, 412-13 (20000). The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Williams, 529 U.S. at 412; Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).
"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 Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. "Under § 2254(d)(1)'s `unreasonable application' clause, . . . 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." 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 federal habeas court must presume to be correct any determination of a factual issue made by a state court unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Here, on direct appeal, the California Supreme Court summarily denied Petitioner's petition for review. Resp. Ex. 10. The Court of Appeal addressed Claims VI-XI in the instant petition. Resp. Ex. 8. The Court of Appeal thus was the highest court to have reviewed the Claims VI-XI in a reasoned decision, and accordingly it is the Court of Appeal's decision that this Court reviews with respect to these claims. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). The remainder of Petitioner's claims in the instant petition, Claims I-V, appear in his state habeas petition. Resp. Ex. 16. The Court of Appeal summarily denied the petition, and the California Supreme Court denied review. Dkt. No. 14-12 at 278; Resp. Ex. 15. The Superior Court, however, addressed these claims. Resp. Ex. 17. The Superior Court thus was the highest court to have reviewed Claims I-V in a reasoned decision, and accordingly it is the Superior Court's decision that this Court reviews with respect to these claims. See Ylst, 501 U.S. at 803-04; Barker, 423 F.3d at 1091-92.
The Supreme Court has vigorously and repeatedly affirmed that under AEDPA, a federal habeas court must give a heightened level of deference to state court decisions. See Hardy v. Cross, 565 U.S. 65 (2011) (per curiam); Harrington v. Richter, 131 S.Ct. 770, 783-85 (2011); Felkner v. Jackson, 131 S.Ct. 1305 (2011) (per curiam). As the Court explained: "[o]n federal habeas review, AEDPA `imposes a highly deferential standard for evaluating state-court rulings' and `demands that state-court decisions be given the benefit of the doubt.'" Id. at 1307 (citation omitted). With these principles in mind regarding the standard and limited scope of review in which this Court may engage in federal habeas proceedings, the Court addresses Petitioner's claims.
Petitioner asserts the following grounds for relief: (1) trial counsel's decision not to present a defense medical expert constituted ineffective assistance of counsel; (2) admission of the prosecution's expert's testimony concerning battered woman's syndrome deprived petitioner of a fair trial; (3) the trial court's unanimity instruction violated due process; (4) omitting an instruction on kidnapping concerning incidental distance violated due process or fair trial rights; (5) Petitioner's conviction for false imprisonment violated double jeopardy, due process, or fair trial rights; (6) omitting an instruction concerning trivial distances violated due process or fair trial rights; (7) there was insufficient evidence of the forcible oral copulation conviction; (8) there was insufficient evidence of the kidnapping conviction; (9) the prosecutor's closing misstated the law in violation of due process; (10) trial counsel rendered ineffective assistance by failing to object to the instructions or arguments; and (11) the state court violated due process by imposing a separate punishment for the spousal abuse conviction and the criminal threat conviction.
Petitioner's first claim is that he received ineffective assistance of counsel because his trial counsel failed to present a defense medical expert who would have testified that T.'s injuries were consistent with consensual sex, that her hemorrhoid was pre-existing, and that she did not have prolapsed rectum. Pet. 11-18. Petitioner complains that trial counsel made this decision based on an "irrational and uninformed" "gut" feeling which he formed after considering T.'s expected testimony, the photographs, and "other physical evidence." Id. at 18.
The Superior Court rejected this claim in Petitioner's state habeas petition, reasoning in relevant part as follows:
Resp. Ex. 17 at 3-4 (footnote in original).
A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Id.
In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, Petitioner must establish two things. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland, 466 U.S. at 687-88. Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
Where the evidence does not warrant it, the failure to call an expert does not amount to ineffective assistance of counsel. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999) (a decision not to pursue testimony by a psychiatric expert is not unreasonable when the evidence does not raise the possibility of a strong mental state defense). Nor is a defendant prejudiced by counsel's failure to call an expert witness to testify when the expert's opinion would be cumulative of evidence that was already before court. See Gulbrandson, 711 F.3d at 1039 (finding no IAC during sentencing in capital case where counsel failed to recall his expert at sentencing to testify about defendant's state of mind at the time of crime because such an opinion was already before the sentencing court).
Here, the Superior Court reasonably determined that trial counsel's decision to not present a defense medical expert did not amount to ineffective assistance of counsel. As discussed by the Superior Court, trial counsel indicated in an email written not under penalty of perjury that he decided not to "use[]" a medical expert "[b]ased on [T.]'s expected testimony and the photographs and the other physical evidence." Pet. Ex. H, Dkt. No. 1-2 at 195. This, as an unsworn statement, cannot be considered evidence that can "overcome the `strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance.'" Burt v. Titlow, 571 U.S. 12, 23 (2013).
However, even if the Court were to take this statement at its word, it does not support Petitioner's claim. Instead, as the Superior Court correctly observed, it reflects a tactical weighing of the decision to use a defense medical expert against the other evidence that will be presented at trial. Cf. Lord v. Wood, 184 F.3d 1083, 1095 (9th Cir. 1999) ("Few decisions a lawyer makes draw so heavily on professional judgment as whether or not to proffer a witness at trial."). For example, trial counsel could have determined that, given that a defense medical expert like Dr. Sinkhorn would have only testified that the medical evidence did not preclude consensual acts or prior conditions, it would not have been worth the effort or expense to present such a witness at trial. This conclusion seems even more reasonable when considered in the context of medical evidence that appeared to weigh in favor of finding a lack of consent or that certain conditions were not preexisting. See Resp. Ex. 2, Dkt. No. 14-6 at 315-16 (prosecution medical expert testifying that tenderness, hemorrhoids, and prolapsed rectum could have been caused by constipation or by pulling repeatedly with fingers); Pet. Ex. C, Dkt. No. 1-2 at 40 ("Dr. Isenhart correctly testified that trauma can be one of the causes of rectal prolapse."). Viewed in this light, trial counsel's decision seems objectively reasonable and the kind of tactical decision that does not constitute deficient performance under Strickland. Accordingly, the Superior Court's determination that Petitioner did not receive ineffective assistance of counsel on these grounds was not unreasonable. Petitioner is not entitled to habeas relief on this claim.
Petitioner's second claim is that he was denied due process and a fair trial because the trial court permitted Alison Baxter, a victim/witness coordinator and advocate at the district attorney's office, to testify as an expert witness about battered women's syndrome. Pet. 19-27. According to Petitioner, admission of this testimony violated his due process rights because (1) Baxter was not an expert on the cycle of violence and (2) she allegedly vouched for the victim's credibility. Id. Petitioner also claims that he received ineffective assistance of counsel because his appellate counsel did not raise this issue on direct appeal. Id. at 27.
The Superior Court rejected this claim in Petitioner's state habeas petition, reasoning in relevant part as follows:
Resp. Ex. 17 at 5. The Superior Court also rejected Petitioner's argument that Baxter impermissibly vouched for T.'s credibility, reasoning as follows:
Id. at 5-6 (footnotes in original).
The Court first addresses the issue of procedural default, and then turns to the merits of Petitioner's remaining claims.
A federal court will not review questions of federal law decided by a state court if the decision also rests on a state law ground that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). The procedural default rule is a specific instance of the more general "adequate and independent state grounds" doctrine. Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir. 1994). In cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Id. at 750.
The Ninth Circuit has recognized and applied the California contemporaneous objection rule in affirming denial of a federal petition on grounds of procedural default where there was a complete failure to object at trial. See Inthavong v. Lamarque, 420 F.3d 1055, 1058 (9th Cir. 2005); Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir. 2004); Vansickel v. White, 166 F.3d 953, 957-58 (9th Cir. 1999).
Here, the Superior Court concluded that, because trial counsel did not object at trial that Baxter impermissibly vouched for T.'s credibility,
Petitioner does not cite to any cause for this procedural default, nor does he contend that he has suffered prejudice. He also does not contend that failure to consider this claim will result in a substantial miscarriage of justice. Accordingly, the Court cannot review Petitioner's claim that he was denied due process and a fair trial on the basis that Baxter impermissibly vouched for T.'s credibility.
The admission of evidence is not subject to federal habeas review unless a specific constitutional guarantee is violated or the error is of such magnitude that the result is a denial of the fundamentally fair trial guaranteed by due process. See Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999); Colley v. Sumner, 784 F.2d 984, 990 (9th Cir. 1986), cert. denied, 479 U.S. 839 (1986). "[T]he acts complained of must be of such quality as necessarily prevents a fair trial." Lisenba v. California, 314 U.S. 219, 236 (1941).
Failure to comply with state rules of evidence is neither a necessary nor a sufficient basis for granting federal habeas relief on due process grounds. See Henry, 197 F.3d at 1031; Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). While adherence to state evidentiary rules suggests that the trial was conducted in a procedurally fair manner, it is certainly possible to have a fair trial even when state standards are violated; conversely, state procedural and evidentiary rules may countenance processes that do not comport with fundamental fairness. See id. (citing Perry v. Rushen, 713 F.2d 1447, 1453 (9th Cir. 1983), cert. denied, 469 U.S. 838 (1984)). The due process inquiry in federal habeas review is whether the admission of evidence was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Colley, 784 F.2d at 990. But note that only if there are no permissible inferences that the jury may draw from the evidence can its admission violate due process. See Jammal, 926 F.2d at 920.
Here, the Superior Court reasonably determined that permitting Baxter's expert testimony did not deny Petitioner due process or a fair trial. As the Superior Court noted, California Code of Evidence § 720 provides that "[a] person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." Baxter had worked at the victim/witness office for 15 years, with 80 percent of her time spent in providing direct services to victims of crimes. Resp. Ex. 2 at 370. She received 160 hours of training, plus 16 hours a year of continuing education training and yearly trainings at a victim's advocate conference. Resp. Ex. 2 at 371-72. As such, she at least had "special knowledge, skill, experience, [and] training" on battered woman's syndrome. In deciding Petitioner's claim for habeas relief, the Superior Court reasonably consulted these standards and concluded that permitting Baxter's testimony did not prevent a fair trial. The trial court had a reasoned basis for allowing her to testify as an expert and, to the extent that a lack of formal education cast doubt on her credibility as an expert, Petitioner's trial counsel had the opportunity to cross-examine her and explore these weaknesses in front of the jury. Accordingly, the Superior Court's rejection of Petitioner's due process and fair trial claims was not unreasonable.
Petitioner's arguments to the contrary are not persuasive. Petitioner contends that, because Baxter did not have formal education relating to battered woman's syndrome—such as a college degree in psychology—she should not have been permitted to testify on the psychology of battered woman's syndrome, including the cycle of violence and the expected behavior of offenders and victims. Pet. 21-23. Due process does not require every expert to have a college degree. Cf. Henry, 197 F.3d at 1031 ("Even where it appears that evidence was erroneously admitted, a federal court will interfere only if it appears that its admission violated fundamental due process and the right to a fair trial."). Accordingly, the Superior Court was not unreasonable in determining that this aspect of Baxter's testifying did not deprive Petitioner of due process and a fair trial. Petitioner is not entitled to habeas relief on this claim.
The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of appellate counsel are reviewed according to the standard set out in Strickland, 466 U.S. at 668. Smith, 528 U.S. at 285; Moormann, 628 F.3d at 1106; Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). First, the petitioner must show that counsel's performance was objectively unreasonable, which in the appellate context requires the petitioner to demonstrate that counsel acted unreasonably in failing to discover and brief a merit-worthy issue. Smith, 528 U.S. at 285; Moormann, 628 F.3d at 1106. Second, the petitioner must show prejudice, which in this context means that the petitioner must demonstrate a reasonable probability that, but for appellate counsel's failure to raise the issue, the petitioner would have prevailed in his appeal. Smith, 528 U.S. at 285-86; Moormann, 628 F.3d at 1106.
It is important to note that appellate counsel does not have a constitutional duty to raise every nonfrivolous issue requested by defendant. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983); Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997); Miller, 882 F.2d at 1434 n.10. The weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy. See Miller, 882 F.2d at 1434. Appellate counsel therefore will frequently remain above an objective standard of competence and have caused his client no prejudice for the same reason: because he declined to raise a weak issue. Id.
Here, the Superior Court reasonably determined that Petitioner did not receive ineffective assistance of counsel because his appellate counsel did not, on direct appeal, raise the issue that permitting Baxter to testify deprived him of due process and a fair trial. As discussed above, the first prong of Strickland requires that counsel's performance be objectively unreasonable. Here, objectively reasonable counsel could have assessed the complaints that Petitioner now raises against Baxter and determined that these were weak or frivolous issues to raise on appeal. For example, because Baxter had relevant "special knowledge, skill, experience, [and] training" on battered woman's syndrome, her testimony was likely admissible under the California Code of Evidence and objectively reasonable appellate counsel could have concluded that it would have been frivolous to argue on appeal that permitting admissible testimony deprived Petitioner of due process or a fair trial. As another example, because trial counsel did not object to Baxter's testimony as a form of vouching and thereby waived this argument, objectively reasonable appellate counsel could have concluded that it would have been frivolous to attempt to raise this issue on appeal. Even if there had been no waiver, objectively reasonable appellate counsel could have also determined that this claim was weak or frivolous on the merits: Baxter did not directly opine on T.'s credibility and only testified regarding a general statistic on recantation rates in domestic violence cases. Accordingly, for all these reasons, it was reasonable to determine that appellate counsel's performance was not objectively unreasonable and therefore not deficient under the first prong of Strickland. Thus, the Superior Court reasonably determined that Petitioner did not receive ineffective assistance of counsel on this basis. Petitioner is not entitled to habeas relief on this claim.
Petitioner's third claim is that he was denied due process and a fair trial because the trial court did not issue a unanimity instruction. Pet. 28-34. Petitioner also claims that he received ineffective assistance of counsel because his trial and appellate counsel did not raise this issue at trial or on direct appeal. Id. at 33-34.
The Superior Court rejected this claim in Petitioner's state habeas petition, reasoning as follows:
Resp. Ex. 17 at 6.
Criminal defendants in state court have no federal constitutional right to a unanimous jury verdict. See Apodaca v. Oregon, 406 U.S. 404, 410-12 (1972) (rejecting 6th Amendment right to jury trial challenge to 10-2 state jury verdict); Johnson v. Louisiana, 406 U.S. 356, 359-63 (1972) (rejecting due process challenge to 9-3 state jury verdict). The Sixth Amendment also does not require the jury to unanimously choose one theory of guilt. Taylor v. Beard, 811 F.3d 326, 332-334 (9th Cir. 2016) (en banc) (finding no Sixth Amendment violation where sufficient evidence at trial proved petitioner's guilt as either shooter or abettor, notwithstanding finding at sentencing that he was not shooter); see Schad v. Arizona, 501 U.S. 624, 631-32 (1991) (plurality opinion) (allowing jurors to rely on different theories in order to return guilty verdict).
Although criminal defendants in state court have no federal constitutional right to a unanimous jury verdict, California requires unanimity of a verdict from all twelve jurors in a criminal trial. See Cal. Const. art. I, § 16; People v. Engelman, 28 Cal.4th 436, 442 (2002). An instruction that unanimity of verdict is essential to a criminal trial, e.g., CALJIC No. 17.50, should be given sua sponte. See CALJIC No. 17.50 Use Note (citing People v. Howard, 211 Cal. 322, 325 (1931)). California also requires that a specific unanimity instruction, e.g., CALJIC No. 17.01, be given sua sponte whenever more than one act could constitute the offense charged. See People v. Diedrich, 31 Cal.3d 263, 281 (1982). However, California imposes no sua sponte duty to provide a unanimity instruction if the offense constitutes a "continuous course of conduct." People v. Maury, 30 Cal.4th 342, 423 (2003). The continuous course of conduct exception applies when "the acts are so closely connected that they form part of one and the same transaction, and thus one offense [or] there is a continuous course of conduct of a series of acts over a period of time." People v. Avina, 14 Cal.App.4th 1303, 1309 (1993) (internal quotation marks omitted).
However, because "federal habeas corpus relief does not lie for errors of state law," Lewis v. Jeffers, 497 U.S. 764, 765 (1990), a trial court's failure to give a unanimity instruction—even when required by California law—does not by itself raise a ground cognizable in a federal habeas corpus proceedings. See Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). Instead, "[t]he error must so infect the entire trial that the defendant was deprived of his right to a fair trial guaranteed by the due process clause of the fourteenth amendment." Id. (quoting Tyler v. Wyrick, 635 F.2d 752, 753 (8th Cir.1980), cert. denied, 452 U.S. 942 (1981)). Due process requires that "`criminal defendants be afforded a meaningful opportunity to present a complete defense.'" Clark v. Brown, 450 F.3d 898, 904 (9th Cir. 2006) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). In federal criminal cases, the Ninth Circuit has held that "[a] defendant is entitled to an instruction on his defense theory only "if the theory is legally cognizable and there is evidence upon which the jury could rationally find for the defendant." United States v. Boulware, 558 F.3d 971, 974 (9th Cir. 2009) (internal quotations omitted).
Here, the Superior Court determined that Petitioner's conduct clearly constituted a continuous course of conduct, and, as such, the trial court had no sua sponte duty to instruct on unanimity. This is a state court determination on an issue of state law, which this Court cannot disturb. Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 604, 163 L. Ed. 2d 407 (2005) ("We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.").
Nevertheless, this Court may still grant habeas relief if the Superior Court's determination is contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d). On that issue, the Court finds in the negative. No Supreme Court precedent clearly establishes that a state criminal defendant is entitled to a unanimous jury verdict in a noncapital case. Apodaca, 406 U.S. at 410-12; Johnson, 406 U.S. at 359-63; see also Hassan v. Morawcznski, 405 F. App'x 129, 131-32 (9th Cir. 2010) (concluding that state trial court's failure to give unanimity instruction did not entitle petitioner to habeas relief because "Supreme Court has never held jury unanimity to be a requisite of due process of law") (internal quotation marks omitted).
Further, to the extent Petitioner argues that the trial court's failure to instruct the jury on unanimity violated his due process and fair trial rights, this argument falters as Petitioner has failed to establish that this decision so infected the entire trial such that Petitioner was deprived of these guarantees. See Dunckhurst, 859 F.2d at 114. As the record suggests, Petitioner committed a stream of abusive acts over the span of several hours, and the evidence at trial tended to reference them collectively. See Resp. Ex. 8 at 18 ("the evidence in this case does not allow for an accounting of which of Allen's acts occurred before the kidnapping and which occurred after."). For example, in the video recording of T.'s statement to police that was played for the jury at trial, T. merely stated that Petitioner "sodomized me . . . tried smothering me, killing me, choking me . . . [t]ried to force me to give him oral sex." Resp. Ex. 3 at 1. She did not break these up into isolated events that happened at separate points in time. See id. at 1-9. The medical evidence also only showed injuries (and, consequently, likely abusive acts) that had happened over the course of the entire period. Petitioner also refuted the charges against him collectively, as his defense was a wholesale denial of abuse. In light of this, it does not appear that Petitioner was denied "a meaningful opportunity to present a complete defense." California, 467 U.S. at 485. Nothing about his denial of abuse was meaningfully foreclosed by the trial court's refusal to give a unanimity instruction. Accordingly, the Superior Court was not unreasonable in determining that the lack of a unanimity instruction did not deprive Petitioner of due process and a fair trial. Petitioner is not entitled to habeas relief on this claim.
As discussed above, a claim for ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland, 466 U.S. at 687. First, Petitioner must demonstrate that counsel's performance was deficient, i.e., that it "so undermined the proper functioning of the adversarial process that the [proceedings] cannot be relied on as having produced a just result." Id. at 686-87. Second, Petitioner must demonstrate that counsel's deficient performance prejudiced him, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
Here, the Superior Court reasonably determined that Petitioner did not receive ineffective assistance of counsel because his trial and appellate counsel failed to complain about the lack of a unanimity instruction. As discussed above, California does not require a trial court to provide a unanimity instruction if the offense constitutes a "continuous course of conduct." People v. Maury, 30 Cal.4th 342, 423 (2003). Here, objectively reasonable counsel could have determined that Petitioner's abusive acts constituted a "continuous course of conduct" such that the trial court was not obligated to instruct on unanimity. The evidence at trial tended to describe these acts collectively, rather than parsing them into separate acts that were committed at discrete intervals. See, e.g., Resp. Ex. 3 at 1-9. Accordingly, objectively reasonable trial and appellate could have determined that it would have been futile or frivolous to complain about the lack of a unanimity instruction. See Jones, 463 U.S. at 751-54 (appellate counsel does not have a duty to raise every nonfrivolous issue); Knowles v. Mirzayance, 556 U.S. 111, 125, 127 (2009) ("It was not unreasonable for the state court to conclude that his defense counsel's performance was not deficient when he counseled [petitioner] to abandon a claim that stood almost no chance of success."). As such, their performance was not deficient under the first prong of Strickland, and the determination that there was no ineffective assistance of counsel was not unreasonable. Petitioner is not entitled to habeas relief on this claim.
Petitioner's fourth claim is that he was denied due process and a fair trial because the trial court did not include language regarding incidental movement in its jury instruction on kidnapping. Pet. 28-34. At trial, the court provided the following written instruction regarding the kidnapping charge, with the exception of the bracketed portion:
Resp. Ex. 1 at 217-18. This language was taken directly from CALCRIM 1215, and the bracketed portion appears as a suggestion in that instruction.
Petitioner contends that, had the bracketed language been included, the jury would not have found asportation (movement by a "substantial distance") beyond a reasonable doubt. Pet. 40-44. Petitioner posits that, with this instruction, the jury would have concluded that movement was incidental to Petitioner's other crimes (false imprisonment, oral copulation, digital penetration, spousal corporal injury, criminal threats), found that the other factors in CALCRIM 1215 did not weigh in favor of "substantial distance," and thus found there was no asportation. Id. Petitioner also claims that he received ineffective assistance of counsel because his trial and appellate counsel did not raise this issue at trial or on direct appeal. Id. at 33-34.
The Superior Court rejected this claim in Petitioner's state habeas petition, reasoning as follows:
Resp. Ex. 17 at 7.
Before turning to the merits of Petitioner's habeas claim, the Court must first determine the extent to which the Superior Court's reasoning guides its review. Ordinarily, where, as here, a state supreme court has denied a claim summarily, a federal habeas court "should `look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning." Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). However, this presumption is rebuttable. Id. Specifically, "the State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court's decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed." Id.
Here, the Court finds that this presumption has been rebutted at least with respect to Petitioner's fourth claim. The Superior Court rejected Petitioner's habeas claim under Duvall, which, under California law, indicates that a petitioner has failed to state his claim with sufficient particularity for the state court to examine the merits of the claim and/or has failed to "include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations." Duvall, 9 Cal. 4th at 474. When Petitioner's appeal ultimately reached the California Supreme Court, the California Supreme Court had the benefit of reading the Superior Court's decision but nevertheless chose to ask for responsive briefing on the merits, i.e., "[w]hether petitioner has established a prima facie case for relief, such that this court should grant the petition for review, and transfer the matter to the Court of Appeal with instructions to issue an order to show cause." Resp. Ex. 15. In response, the government gave both procedural and reasons on the merits for denying Petitioner's claim. Resp. Ex. 13 at 33-45, Dkt. No. 14-13 at 114-26. The California Supreme Court then denied review. Resp. Ex. 15. Based on this record, where the California Supreme Court could have remanded Petitioner's claim for procedural deficiencies but instead chose to deny review, it appears that the California Supreme Court rejected Petitioner's claim on the merits. This is sufficient to overcome the presumption that the California Supreme Court's "unexplained decision adopted the same reasoning" as the lower courts. Wilson, 138 S. Ct. at 1192. Accordingly, the Court finds that Petitioner has exhausted his remedies with respect to this claim and will proceed to review it on the merits. Where, as here, "the state court supplies no reasoned decision," the Court must "perform an `independent review of the record' to ascertain whether the state court decision was objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). The Court thus conducts an independent review of the record to evaluate the merits of Petitioner's claim.
Although instructional errors are cognizable in federal habeas corpus, they "generally may not form the basis for federal habeas relief." Gilmore v. Taylor, 508 U.S. 333, 344 (1993). It is not enough that the instruction was incorrect as a matter of state law. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Habeas relief is available if "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). "[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Boyde v. California, 494 U.S. 370, 378 (1990) (quoting Cupp, 414 U.S. at 146-47). Due process does not require that an instruction be given unless the evidence supports it. See Hopper v. Evans, 456 U.S. 605, 611 (1982); Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005). The defendant is not entitled to have jury instructions raised in his or her precise terms where the given instructions adequately embody the defense theory. United States v. Del Muro, 87 F.3d 1078, 1081 (9th Cir. 1996); United States v. Tsinnijinnie, 601 F.2d 1035, 1040 (9th Cir. 1979).
Here, the California Supreme Court reasonably concluded that the trial court's decision to not include the "merely incidental" language in its kidnapping instruction did not deprive Petitioner of due process. None of Petitioner's associated crimes—false imprisonment, oral copulation, digital penetration, spousal corporal injury, and criminal threats—involved substantial movement. Thus, the jury did not need to consider whether T.'s movement was incidental to Petitioner's associated crimes—to the extent the jury found that T. was substantially moved, it could only be attributed to kidnapping. As such, the evidence did not support the inclusion of the "merely incidental" language, and, as a consequence, it was not required by due process. See Hopper, 456 U.S. at 611.
Further, even if omission of the "merely incidental" language was error, it was harmless. A jury instruction that omits an element of an offense is constitutional error subject to "harmless error" analysis. See Neder v. United States, 527 U.S. 1, 8-11 (1999); Evanchyk v. Stewart, 340 F.3d 933, 940 (9th Cir. 2003). The omission will be found harmless unless it "`had substantial and injurious effect or influence in determining the jury's verdict.'" Roy, 519 U.S. at 4 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)); see Roy v. Gomez, 108 F.3d 242, 242 (9th Cir. 1997) (on remand after California v. Roy). Here, the "merely incidental" language was simply one additional factor which the jury was instructed to consider in determining whether Petitioner's movement of T. was "substantial." The jury was also instructed that "[s]ubstantial distance means more than a slight or trivial distance" and that it "must consider all the circumstances" in deciding whether the distance was "substantial." As such, the more substantial movement associated with Petitioner's kidnapping charge would have weighed much more heavily in the juror's minds than more trivial movements incident to Petitioner's other largely stationary crimes (false imprisonment, oral copulation, digital penetration, spousal corporal injury, criminal threats). Accordingly, any additional consideration they would have given to these trivial movements could not have had a "substantial and injurious effect or influence" in reaching a conclusion about "substantial movement."
Accordingly, because the trial court's omission of the "merely incidental" language did not deprive Petitioner of due process and, even if it did, this was harmless error, Petitioner is not entitled to habeas relief on this claim.
As discussed above, a claim for ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland, 466 U.S. at 687. First, Petitioner must demonstrate that counsel's performance was deficient, i.e., that it "so undermined the proper functioning of the adversarial process that the [proceedings] cannot be relied on as having produced a just result." Id. at 686-87. Second, Petitioner must demonstrate that counsel's deficient performance prejudiced him, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
Here, the California Supreme Court reasonably determined that Petitioner did not receive ineffective assistance of counsel because his trial and appellate counsel failed to complain about the omission of the "merely incidental" language. Objectively reasonable trial counsel could have concluded that this language was inapplicable in Petitioner's case, given that the other crimes involved in this case do not involve movement from one place to another. In a similar vein, objectively reasonable appellate counsel could have concluded that this omission did not rise to the level of a due process violation because, as discussed above, due process does not require that an instruction be given unless the evidence supports it. See Hopper, 456 U.S. at 611. Neither trial nor appellate counsel are obligated to raise weak or frivolous arguments. See Jones, 463 U.S. at 751-54; Knowles, 556 U.S. at 125. As such, neither trial nor appellate counsel's performance was deficient under the first prong of Strickland, and the determination that there was no ineffective assistance of counsel was not unreasonable. Petitioner is not entitled to habeas relief on this claim.
Petitioner's fifth claim is that his conviction for false imprisonment violates his due process, fair trial, and double jeopardy rights because false imprisonment is a lesser included offense of kidnapping. Pet. 45-46. Petitioner also argues that appellate counsel rendered ineffective assistance by failing to raise this issue on appeal. Id. at 46.
The Superior Court rejected this claim in Petitioner's state habeas petition, reasoning as follows:
Resp. Ex. 17 at 7.
As with Petitioner's fourth claim, Petitioner's fifth claim was rejected by the Superior Court on procedural grounds under Duvall. However, for the same reasons discussed above with respect to Petitioner's fourth claim, it appears that, here, the Supreme Court rejected this claim on its merits. Thus, its decision rests on a different ground than that expressed in the Superior Court's decision. Accordingly, the Court finds that the presumption that the look-through doctrine applies is rebutted, and proceeds to review Petitioner's fifth claim on the merits. Because the California Supreme Court did not explain its reasons for denying review, the Court "perform[s] an `independent review of the record' to ascertain whether the state court decision was objectively unreasonable." Himes, 336 F.3d at 853.
The Double Jeopardy Clause of the Fifth Amendment guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. In Benton v. Maryland, 395 U.S. 784 (1969), its protections were held applicable to the states through the Fourteenth Amendment. The guarantee against double jeopardy protects against (1) a second prosecution for the same offense after acquittal or conviction, and (2) multiple punishments for the same offense. See Witte v. United States, 515 U.S. 389, 395-96 (1995); United States v. DiFrancesco, 449 U.S. 117, 129 (1980); North Carolina v. Pearce, 395 U.S. 711, 717 (1969); Staatz v. Dupnik, 789 F.2d 806, 808 (9th Cir. 1986).
Here, there is no dispute that Petitioner has only been prosecuted once. Thus, if his convictions for kidnapping and false imprisonment violate the double jeopardy clause, it must be on this second basis—that Petitioner received multiple punishments for the same offense.
In contrast to the double jeopardy protection against successive prosecutions, this second component of double jeopardy—protection against multiple punishments—is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature. See Garrett v. United States, 471 U.S. 773, 793 (1985); Ohio v. Johnson, 467 U.S. 493, 499 (1984); Brown v. Ohio, 432 U.S. 161, 165 (1977). Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, the question under the Double Jeopardy Clause whether punishments are "multiple" is essentially one of legislative intent. See Missouri v. Hunter, 459 U.S. 359, 366-68 (1983). When the legislature intends to impose multiple punishments, there is no double jeopardy. Plascencia v. Alameda, 467 F.3d 1190, 1204 (9th Cir. 2006).
In federal courts, the "same elements" test established in Blockburger v. United States, 284 U.S. 299, 304 (1932), which asks "whether each provision requires proof of a fact which the other does not," ordinarily determines whether crimes are indeed separate and whether cumulative punishments may be imposed. See Rutledge v. United States, 517 U.S. 292, 297 (1996). However, "simply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes." Hunter, 459 U.S. at 368. Rather, "[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Id. at 366.
In California, "[a] defendant . . . cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act." People v. Sanchez, 24 Cal.4th 983, 987 (2001). Thus, California law bars simultaneous conviction of lesser included offenses, but only if the convictions are based on the "commission of the identical act." Id.
Here, the government concedes that, under California law, false imprisonment is a necessarily included offense of kidnapping. Resp. at 40. However, Petitioner offers no evidence or argument that his conviction for false imprisonment was based on "the identical act" that his conviction for kidnapping was based on. Indeed, as discussed above, the evidence at trial tended to describe Petitioner's offenses cumulatively, without precisely defined starting and ending times. As such, it is at least possible that his convictions for false imprisonment and kidnapping were not based on identical acts. For example, it could be that Petitioner falsely imprisoned T. over a general period of six or seven hours, but only kidnapped her—as limited by the asportation element—over only the span of time that it took to drag her from one location to another. Accordingly, Petitioner has not shown that he is entitled to habeas relief because his rights under the Double Jeopardy Clause were violated.
Petitioner provides no arguments to support his due process claim apart from his double jeopardy complaints. As such, he has effectively waived this claim. See United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010) ("Arguments made in passing and not supported by citations to the record or to case authority are generally deemed waived."). Moreover, even if the Court were to consider it on the merits, it does not appear that his convictions for false imprisonment and kidnapping fail to "comport with prevailing notions of fundamental fairness." Trombetta, 47 U.S. at 485. As discussed above, it is at least possible that these convictions were based on different acts, and Petitioner offers no argument to the contrary. Accordingly, Petitioner is not entitled to habeas relief on this theory.
As discussed above, a claim for ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland, 466 U.S. at 687. First, Petitioner must demonstrate that counsel's performance was deficient, i.e., that it "so undermined the proper functioning of the adversarial process that the [proceedings] cannot be relied on as having produced a just result." Id. at 686-87. Second, Petitioner must demonstrate that counsel's deficient performance prejudiced him, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
Here, objectively reasonable counsel could have concluded that, because Petitioner's false imprisonment and kidnapping charges could have corresponded to different "acts," his conviction did not violate the Double Jeopardy Clause nor deprive him of due process. As such, objectively reasonable trial and appellate counsel could have determined that it would have been futile or frivolous to raise these complaints, and their refraining from doing so does not amount to deficient performance under the first prong of Strickland. See Jones, 463 U.S. at 751-54 (appellate counsel does not have a duty to raise every nonfrivolous issue); Knowles, 556 U.S. at 125 ("It was not unreasonable for the state court to conclude that his defense counsel's performance was not deficient when he counseled [petitioner] to abandon a claim that stood almost no chance of success."). Thus, Petitioner is not entitled to habeas relief on this claim.
Petitioner's sixth claim is that he was denied due process and a fair trial because the trial court's jury instruction on kidnapping failed to instruct the jury that trivial distances did not require a consideration of context. Pet. 47-50. Petitioner argues this is contrary to the California Supreme Court's decision in People v. Martinez, 20 Cal.4th 225 (1999), which, according to Petitioner, provides that a jury need not consider contextual factors and that, if a victim is moved a very short distance, contextual factors alone cannot prove that the movement was for a substantial distance. Id.
The Court of Appeal rejected Petitioner's claim on direct appeal, summarizing the relevant facts and reasoning as follows:
Resp. Ex. 8 at 12-14 (footnote in original).
Although Petitioner argues this claim on the merits, the Court cannot entertain his claim on this basis. As discussed above, a federal court will not review questions of federal law decided by a state court if the decision also rests on a state law ground that is independent of the federal question and adequate to support the judgment. Coleman, 501 U.S. at 729-30. The Ninth Circuit has recognized and applied the California contemporaneous objection rule in affirming denial of a federal petition on grounds of procedural default where there was a complete failure to object at trial. See Inthavong v. Lamarque, 420 F.3d 1055, 1058 (9th Cir. 2005); Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir. 2004); Vansickel v. White, 166 F.3d 953, 957-58 (9th Cir. 1999).
Here, as the Court of Appeal noted, Petitioner did not object to this jury instruction at trial. Resp. Ex. 8 at 12. Accordingly, Petitioner procedurally defaulted this claim. See, e.g., Inthavong, 420 F.3d at 1058 (applying the California contemporaneous objection rule in affirming denial of a federal petition on grounds of procedural default where there was a complete failure to object at trial). As such, the Court of Appeal's decision rests on an independent and adequate state law ground, which bars Petitioner's federal habeas claim. See Coleman, 501 U.S. at 729-30.
In cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. Here, Petitioner does not argue that his case falls within either exception. Accordingly, his procedural default cannot be excused on this basis. As such, Petitioner's claim is procedurally defaulted and he is not entitled to habeas relief.
Further, even if the Court were to consider Petitioner's sixth claim on its merits, Petitioner would not be entitled to habeas relief. A challenge to a jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings. See Estelle, 502 U.S. at 71-72. Instead, to obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. See Estelle, 502 U.S. at 72; Cupp, 414 U.S. at 147. 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. See Estelle, 502 U.S. at 72.
The Court of Appeal did not unreasonably apply federal law when it concluded that the jury was not mislead by the trial court's instruction on kidnapping. As the Court of Appeal correctly pointed out, the trial court's written instruction (and, for that matter, oral instruction at least as it applied to Petitioner) correctly reflected California law on "substantial distance." The written instruction simply informed the jury that, in addition to the actual distance moved, it "may" consider other contextual factors. This is consistent with Martinez. See Martinez, 20 Cal. 4th at 237 ("it would also be proper for the court to instruct . . . the jury should consider the totality of the circumstances"). In addition, although the oral instruction informed the jury that it "must" consider contextual factors, this would not have led the jury to incorrectly apply California law in Petitioner's case. As Petitioner himself concedes, the actual distance that T. was moved was relatively small, Pet. 48; thus, it would have been proper for the jury to consider other contextual factors in determining whether her movement was "substantial."
Petitioner's argument to the contrary is not persuasive. Petitioner argues that the trial court's instruction contradicts the California Supreme Court's observation in Martinez, 20 Cal. 4th at 237 that "contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance." As an initial matter, this is dicta and, as such, is not controlling California law. Moreover, even if it were, the trial court's instruction does not run afoul of this principle. In both oral and written form, the trial court instructed the jury that "[s]ubstantial distance means more than a slight or trivial distance" and that, in addition to contextual factors, it must consider actual distance moved. Resp. Ex. 8 at 12. Thus, it is not the case that the jury was instructed to determine whether T.'s movement was substantial based on contextual factors alone. Accordingly, the trial court's instruction is consistent with Martinez and California law on "substantial distance."
With no identified error in the instruction, it was not unreasonable for the Court of Appeal to conclude that the jury was not misled. Accordingly, it also cannot be the case that upholding Petitioner's conviction on his basis violates due process. See Estelle, 502 U.S. at 72 ("[t]he only question for us is `whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.'"); Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) ("`[I]t must be established not merely that the instruction is undesirable, erroneous, or even "universally condemned," but that it violated some [constitutional right]'"). Thus, Petitioner is not entitled to habeas relief on this claim.
Petitioner's seventh claim is that he was denied due process because there was insufficient evidence to prove that he committed the crime of forcible oral copulation. Pet. 51-55. In particular, Petitioner argues that there was insufficient evidence that oral copulation was accomplished by "force, violence, duress, menace, or fear of immediate and unlawful bodily injury," Cal. Penal Code § 288a(c), because T. testified at trial that this act was consensual and the other evidence in the record was insufficient to permit the jury to find to the contrary. Id.
The Court of Appeal rejected Petitioner's claim on direct appeal, summarizing the relevant facts and reasoning as follows:
Resp. Ex. 8 at 7-9.
Evidence is constitutionally sufficient to support a conviction when, "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); see also Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam) ("[I]t is the responsibility of the jury—not the court—to decide what conclusions should be drawn from evidence admitted at trial."). The reviewing court presumes that the trier of fact resolved any factual conflicts in the record in favor of the prosecution and defers to that resolution. Jackson, 443 U.S. at 326. The U.S. Supreme Court has "made clear that [sufficiency-of-the-evidence] claims face a high bar in federal habeas proceedings." Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam).
Here, the Court of Appeal's determination that sufficient evidence supported Petitioner's forcible oral copulation conviction was not objectively unreasonable. The Court of Appeal explained that the jury could have reasonably concluded that T. performed oral sex due to Petitioner's use of force, as her statement to police described several specific acts of force which Petitioner committed over the course of the night. See Resp. Ex. 3 at 1-9. This list of acts was extensive and T.'s described them with particularity; for example, T. stated that Petitioner "t[ook] my clothes off," "[k]ept me out there," "sodomized me," "tried smothering me, killing me, choking me . . ." Id. Construing this evidence in the light most favorable to the prosecution, a rational jury could have used these acts as context and concluded that Petitioner accomplished oral copulation by way of force. This conclusion becomes even stronger when considered in the context of other evidence which also suggested the use of force, including eyewitness testimony that she appeared visibly shaken and traumatized, and medical evidence of substantial injuries (e.g., bruises, scrapes, and dried blood in multiple places on her body and the mangled hair and bald spot). See, e.g., Resp. Ex. 2 at 159, 170-74, 313-16, 323, 328, 339, 351-58, 397, 403. While it is true that T. testified at trial that she performed oral sex consensually, the jury was entitled to weigh this testimony against this other evidence. As such, it could have decided to disbelieve T.'s testimony and instead conclude that Petitioner accomplished oral copulation by force. As such, the Court of Appeals reasonably determined that there was constitutionally sufficient evidence to satisfy this element of the crime.
Petitioner nevertheless argues that there is insufficient evidence that oral copulation was "forcible" because there is no affirmative testimony from T. on this point. Pet. 53-55. For example, Petitioner points out that T. testified that the oral sex was consensual, that T. did not mention forcible oral sex in her jailhouse call, that she also told the police that Petitioner "just wanted" oral sex, and also argues that it is unclear, from the evidence, how the events of the night unfolded chronologically. Id. However, a jury does not need direct testimony from a victim in order to find that the prosecution has proven an element of a crime; circumstantial evidence can suffice. Accordingly, the lack of direct testimony from T. does not mean that there was insufficient evidence of "forcible" oral copulation. Rather, for the reasons discussed above, this evidence was constitutionally sufficient. Accordingly, Petitioner is not entitled to habeas relief on this claim.
Petitioner's eighth claim is that he was denied due process because there was insufficient evidence to prove that he committed the crime of simple kidnapping. Pet. 51-55. In particular, Petitioner contends that there was insufficient evidence of asportation (movement by a "substantial distance") because there was no direct evidence that Petitioner moved T., the circumstantial evidence only established that she was moved 10-15 feet, and that her movement was to a more open area, which decreased the risk of harm. Id.
The Court of Appeal rejected Petitioner's claim on direct appeal, summarizing the relevant facts and reasoning as follows:
Resp. Ex. 8 at 9-12.
As also explained above, evidence is constitutionally sufficient to support a conviction when, "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, 443 U.S. at 319; see also Cavazos, 565 U.S. at 2 ("[I]t is the responsibility of the jury—not the court—to decide what conclusions should be drawn from evidence admitted at trial."). The reviewing court presumes that the trier of fact resolved any factual conflicts in the record in favor of the prosecution and defers to that resolution. Jackson, 443 U.S. at 326. The U.S. Supreme Court has "made clear that [sufficiency-of-the-evidence] claims face a high bar in federal habeas proceedings." Coleman, 566 U.S. at 651.
Here, the Court of Appeal's determination that sufficient evidence supported Petitioner's kidnapping conviction was not objectively unreasonable. As the Court of Appeal explained, the California Supreme Court has not set a numerical minimum on what constitutes "substantial" distance, and at least 15 feet has been found to be "substantial" in California cases. Resp. Ex. 8 at 10 (citing People v. Arias (2011) 193 Cal.App.4th 1428, 1435 (2011) and People v. Dominguez (2006) 39 Cal.4th 1141, 1155 (2006)). Accordingly, evidence of only 10-15 feet of movement does not doom the element of asportation. Further, as the Court of Appeal also explained, there were at least some contextual factors that weighed in favor of finding this distance substantial: taking T. out of the car and placing her on the ground in the brush could have objectively increased the risk of harm to her, as it gave Petitioner more space to commit assaults, rocks and debris to use in committing these assaults, and brush to potentially conceal some of his acts. Resp. Ex. 8 at 11. It also separated T. from the car and her cell phone—her best resources for an escape. Id. Viewing this evidence in the light most favorable to the prosecution, a rational factfinder could have found that the prosecution proved asportation beyond a reasonable doubt. Accordingly, the Court of Appeal reasonably determined that there was constitutionally sufficient evidence to satisfy this element of the crime.
Petitioner's ninth claim is that he was denied due process because the prosecutor impermissibly argued to the jury that, to determine the element of asportation, it had to consider both actual distance and contextual factors. Pet. 59-60.
The Court of Appeal rejected Petitioner's claim on direct appeal, summarizing the relevant facts and reasoning as follows:
Resp. Ex. 8 at 14-15.
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); Smith v. Phillips, 455 U.S. 209, 219 (1982) ("the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor"). 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. Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005).
A prosecutor's mischaracterization of a jury instruction is less likely to render a trial fundamentally unfair than if the trial court issues the instruction erroneously:
Boyde v. California, 494 U.S. 370, 384-85 (1989) (citations omitted).
Here, the Court of Appeal reasonably determined that the prosecutor's comments in closing argument did not violate Petitioner's due process rights. The prosecutor merely repeated the trial court's oral instruction on asportation. Resp. Ex. 8 at 14-15. As discussed above in Section II.B.vi, this would not have led the jury to incorrectly apply California law in Petitioner's case. As such, the prosecutor's repetition of this statement in closing argument did not render Petitioner's trial fundamentally unfair. Petitioner is not entitled to relief on this claim.
Petitioner's tenth claim is that trial counsel rendered ineffective assistance because he failed to object to the court's instruction and the prosecutor's argument in closing on the asportation element of his kidnapping charge. Pet. 62-64. Consistent with his argument in his sixth and ninth claims, Petitioner argues that the trial court and prosecution incorrectly argued that the jury must consider contextual factors and that trial counsel should have objected on this basis. Id.
The Court of Appeal rejected Petitioner's claim on direct appeal, reasoning in relevant part as follows:
Resp. Ex. 8 at 15-16.
As discussed above in Sections II.B.vi and II.B.ix, at least the trial court's written jury instruction correctly reflects California law and neither the trial court's instructions (written or oral) nor the prosecutor's arguments during closing would have led the jury to incorrectly apply California law in Petitioner's case. Accordingly, for this reason, trial counsel did not perform in an objectively deficient manner by not challenging the instruction or argument. See Robbins, 528 U.S. at 272 (concluding that counsel is not obligated to present nonmeritorious claims). Further, for this same reason, trial counsel's failure to object could not have prejudiced Petitioner. Accordingly, Petitioner's claim fails under both prongs of Strickland. He is not entitled to relief on this claim.
Petitioner's eleventh claim is that he was denied due process because he received separate punishments for spousal abuse and for criminal threat, in violation of California Penal Code § 654.
The Court of Appeal rejected Petitioner's claim on direct appeal, reasoning in relevant part as follows:
Resp. Ex. 8 at 16-17.
The constitutional guarantee of due process is fully applicable at sentencing. See Gardner v. Florida, 430 U.S. 349, 358 (1977). Federal courts must defer to the state courts' interpretation of state sentencing laws. See Bueno v. Hallahan, 988 F.2d 86, 88 (9th Cir. 1993); cf. Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (A state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.). "Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief." Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994).
Here, the Court of Appeal fully explained why section 654 was inapplicable to Petitioner's case: the criminal threats to T. were gratuitous and extra, and reflected a purpose that was distinct from Petitioner's sexual assault. Resp. Ex. 8 at 16-17. Even if this Court were concerned that an error was committed, it is not the province of a federal habeas court to correct a misapplication of state sentencing law absent some identified constitutional issue. See Christian, 41 F.3d at 469. Petitioner only attacks his separate punishments under the rubric of section 654; he does not separately contend that these punishments (allegedly brought on by the state's misapplication of section 654) created a fundamental unfairness or otherwise violated due process. As such, he has not shown entitlement to habeas relief on this claim.
After a careful review of the record and pertinent law, the Court concludes that the Petition for a Writ of Habeas Corpus is DENIED.
Further, a Certificate of Appealability is DENIED. See Rule 11(a) of the Rules Governing Section 2254 Cases. Petitioner has not made "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Nor has Petitioner demonstrated that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner may not appeal the denial of a Certificate of Appealability but may seek a certificate from the Court of Appeals under Rule 22 of the Federal Rules of Appellate Procedure. See Rule 11(a) of the Rules Governing Section 2254 Cases.
The Clerk shall terminate any pending motions, enter judgment in favor of Respondent, and close the file.
