Cortez v. Callahan

• Court: District Court, N.D. California
• Decided: August 25, 2021
• Docket: 5:18-cv-02969
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11

12 ARTURO VELIZ CORTEZ, Case No. 18-CV-02969-LHK

13 Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 14 v. Re: Dkt. No. 1 15 CHARLES W. CALLAHAN, 16 Respondent. 17 Arturo Veliz Cortez (“Petitioner”) filed a petition for a writ of habeas corpus against 18 Respondent Charles W. Callahan (“Respondent”) pursuant to 28 U.S.C. § 2254. ECF No. 1. 19 Petitioner challenged his 2016 criminal judgment. Respondent filed an answer, ECF No. 14, and 20 Petitioner filed a traverse, ECF No. 22. Having reviewed the briefs and the underlying record, the 21 Court concludes that Petitioner is not entitled to relief. The Court accordingly DENIES the 22 petition and a certificate of appealability. 23 I. BACKGROUND 24 The following facts are taken from the California Court of Appeal’s opinion in People v. 25 Cortez, No. H041081, 2016 WL 6962539 (Cal. Ct. App. Nov. 29, 2016): 26 The prosecution charged Cortez, a 43-year-old man, with sexually molesting two 27 young girls: J., beginning at age 8 or 9, and her niece N., at age 4. At the time, Cortez was living with his girlfriend, Irma A. J. is Irma's daughter. N. is the 1 daughter of Maria A., who is Irma's daughter and J.'s older half-sister. 2 Police began their investigation in November 2012, after N. told Maria that Cortez 3 had touched her at a birthday party. In the course of the investigation, J., then 11 years old, told police Cortez had molested her multiple times over the course of 4 several years while he was living with her and Irma. 5 1. Lewd or Lascivious Act on N. 6 On November 18, 2012, Maria and her husband, David C., took N. to a family member's birthday party at Irma's apartment in San Jose. Maria and her husband 7 left N. at the party while they went shopping. After about two and a half hours, they 8 returned to the party. Cortez, who was at the party, was drinking beer and appeared to be “buzzed.” After spending about three more hours at the party, Maria and her 9 husband left with N. 10 As the family was walking to their car, N. pointed to her buttocks and said, “Owie.” 11 In the past, N. had used this expression when she had not sufficiently wiped herself after using the bathroom, so Maria asked her if she had wiped herself properly. N. 12 said “yes” and the family kept walking. N. then said “owie” again, whereupon 13 Maria asked her if anybody had touched her. N. stated that “Tata” had touched her, referring to Cortez. Maria told N. not to lie, and N. denied lying. N. said Cortez had 14 grabbed the television remote control away from her and touched her “torta,” the 15 term she used to refer to her vagina. She gestured with her hand by placing it on her vagina and moving her hand back and forth three times. At that point, Maria 16 decided to go back to the party with her husband and N. to confront Cortez. 17 When they arrived back at Irma's apartment, Maria called Irma and asked her to come outside. When Irma came outside, Maria told N. to tell Irma what happened. 18 N. said, “Tata touched me,” and she pointed to her vagina. Irma said she had not 19 seen anything happen. She stated that N. had not been by herself, and that N. had been with Irma or J. the entire time. 20 Maria then took N. into Irma's apartment. N.'s father, who was angry and upset, 21 stayed outside. Once inside, Maria took N. to a bathroom where Maria removed 22 N.'s underwear and examined her physically. Maria did not see any redness or bleeding. 23 After examining N. for about ten minutes, Maria took her to confront Cortez. When 24 Maria asked Cortez what happened, he responded, “What do you mean?” N. 25 immediately stated, “Tata, you touched me.” Cortez denied doing so, whereupon N. repeated the accusation and gestured toward her vagina. Cortez again denied 26 touching N. Maria and N. then left the apartment and returned home. Maria did not 27 call the police that day. The next morning, N. told Maria, “Mommy, do you remember Tata touched me?” 1 Maria called the police that afternoon. A police officer arrived and interviewed N. 2 together with Maria and her husband. In talking to the police officer, N. changed her explanation of what happened. At first, N. claimed the touching happened in the 3 bedroom. She then stated it happened in the living room. She then said it happened 4 in the kitchen. She stated Cortez touched her over her clothing. 5 N. was five years old when she testified at trial.2 Using a stuffed hippopotamus doll, she indicated Cortez touched her between the legs. She testified that Cortez 6 touched her “torta” under her clothing while they were in the bedroom at Irma's 7 home. 2. Sexual Assaults Upon J. 8 J. was 12 years old at the time of trial. She testified as follows. Cortez began dating 9 Irma when J. was in elementary school. At some point, Cortez moved into Irma's 10 home in San Jose. J. and several other relatives lived there at the same time. 11 The first touching incident occurred when J. was lying on a bed in her mother's bedroom watching television. Cortez entered the room, pulled up a chair, and sat 12 next to the bed. He then reached out, touched J.'s leg, and moved his hand up her 13 leg. J. thought it was an accident because Cortez had been drinking. 14 J. described another incident involving the family dog's food bowl. J. went to her mother's bedroom to look for the bowl and saw Cortez in the room. He told J. to 15 look under the bed for the bowl. When she did so, he put his hand on her buttocks. She asked him whether he touched her on purpose; Cortez claimed it was an 16 accident. 17 The touching incidents continued to happen. Cortez touched J. on her vagina and 18 breasts, both over and under her clothes, and inside her vagina. On one occasion, J. was taking a nap with a blanket in her bedroom when Cortez came in. Cortez got 19 on the bed and covered himself with the same blanket. J. then took the blanket off 20 herself and told him she did not feel comfortable. He hugged her and touched her vagina over her shorts. J. struggled to wiggle away and was eventually able to get 21 out of the bed. 22 J. testified about several incidents involving vaginal penetration. In one incident, 23 she was lying on her bed trying to fall asleep with headphones on. Cortez entered the room and lay on top of her. He touched her breast area with one hand and put 24 his other hand on her vagina under her clothes. He then squeezed her breasts and 25 inserted his fingers into her vagina, causing her pain. J. struggled to get out from under him and hit him in the stomach, whereupon he got off her and she ran 26 outside. 27 On another occasion, J. was at the swimming pool in the apartment complex where 1 she lived, wearing a swimsuit. She went back to her apartment to change out of her 2 swimsuit. After she put on her clothes, Cortez entered the bedroom and got on top of her on the bed. He put his penis inside her against her will, causing her pain. 3 When he was finished, he told J. it was “our little secret.” When she went to the 4 bathroom, a white liquid came out of her. 5 Another act of sexual intercourse occurred around the time J.'s mother lost her job at the HP Pavilion. J. was in her bedroom at night when she awoke to find Cortez 6 on top of her. She had gone to bed wearing pants or underwear, but they were no 7 longer on her. Cortez was moving up and down with his penis inside her. She struggled against him, but he did not stop. Later, when J. went to the bathroom, she 8 again saw the white liquid come out of her. 9 J. also described an incident when Cortez grabbed her hand and put it on his penis while they were sitting on the couch together. Cortez used force to accomplish the 10 act; J. did not touch him voluntarily. This happened two or three other times. 11 At some point, J. told Maria, her older sister, that Cortez had touched her. Maria 12 told J. to tell Irma, but J. felt too uncomfortable about it to tell Irma. After Maria told Irma what J. had said, Irma questioned J. but did not believe her. Irma once 13 questioned J. about it in front of Cortez, and he denied touching her. Irma continued 14 to question J. about her claims, so J. eventually changed her response and claimed it was all a joke. Irma then grounded J. for lying. 15 In November 2012, shortly after N. accused Cortez of touching her at the birthday 16 party, Maria told J. about N.'s accusation. In response, J. decided to reassert her 17 allegations against Cortez. She testified, “now I felt that they would have to believe me [...] [b]ecause I wasn't the only one that had experienced that.” Accordingly, J. 18 again told Maria that Cortez had been molesting her. J. thought Maria believed her 19 this time. In her testimony, J. admitted she had previously made an allegation of sexual 20 assault against another one of Irma's former boyfriends. She admitted she had 21 testified at the preliminary hearing that the allegation was false. In her trial testimony, however, she testified that the boyfriend had in fact touched her thighs 22 and legs, but she was unsure whether it was “a good touch” or “a bad touch.” 23 3. Subsequent Events 24 After Maria contacted the police about N.'s claims, J. also made statements to the 25 police. J. initially told the police Cortez touched her inappropriately on two occasions, and that the touching occurred over her clothes. 26 The police arranged for Maria to conduct a pretext phone call to Cortez. Cortez 27 denied touching N., but he stated that she was in the bedroom with him. He said he told N. to close the door on her way out of the room and he threatened to hit her if 1 she did not do so. Cortez denied touching J. 2 The police also arranged for Maria to make a pretext call to J. In the call, J. told 3 Maria there were only two incidents with Cortez. J. said one of the touchings occurred over a blanket while she was lying down watching television. She said the 4 other incident involved an attempt to touch her, but that Cortez did not succeed. 5 She did not say Cortez had put his fingers or penis in her vagina. However, J. also said she did not want to talk on the phone because Cortez and Irma were nearby. 6 In December 2012, San Jose Police Officer Emilio Perez attempted to arrange a 7 follow-up meeting with N. and her family. After several unsuccessful attempts, Officer Perez contacted Maria and arranged to interview N. at the Children's 8 Interview Center on December 26, 2012. At trial, the prosecution played a 9 videotape of the interview for the jury.3 10 After N.'s interview at the Children's Interview Center, Officer Perez spoke with J. J. described approximately nine different incidents involving various types of 11 touching by Cortez. She told Officer Perez that Cortez had put his penis in her 12 vagina two to three times, and he had put his fingers in her vagina around five to six times. She described one incident in which Cortez got on top of her and put his 13 body weight on her while she was lying on her mother's bed. 14 On the same day as J.'s interview with Officer Perez, she also spoke with a social 15 worker. She told the social worker the touchings were occurring every other day. J. underwent a Sexual Assault Response Team (SART) exam on December 27, 16 2012. The exam revealed no evidence of trauma. The examining SART nurse 17 testified that this did not show an absence of prior sexual contact because enough time had passed for any trauma to heal. 18 Police interviewed Cortez at the San Jose Police Department on the same day— 19 December 27, 2012. After he initially denied touching J. or N. inappropriately, 20 Cortez admitted molesting J. He admitted he had inserted both his fingers and his penis into her vagina on multiple occasions. He continued to deny molesting N. 21 Police then took Cortez into custody. 22 On December 30, 2012, Cortez made five phone calls to Irma from the county jail. 23 Cortez told Irma, “They need to go do what they need to do. Both need to be there tomorrow at 1:00.” Cortez told Irma “they” needed to go to court and that “if they 24 say that well it will help me.” Irma promised Cortez she would help him. Cortez 25 added, “Both of them have to go and say that.” Referencing J., Cortez later said, “Let's see why she doesn't go—why doesn't she go to the also to the fucking court 26 and also tell what she lied about; . . . hey you know what I lied, he didn't do 27 anything to me, he didn't do anything because I lied. Why is she doing this.” He added, “They have to see that it's just that she has to say that it is not true. That they 1 pressured her.” 2 The next day, the trial court arraigned Cortez. A woman who identified herself as 3 the “victim's mother” went to the hearing, approached a deputy district attorney, and told her that “it was all a misunderstanding, that the girls were pressured to 4 make the statements that they did.” 5 On January 4, 2013, Irma, Maria, N. and J. went to the San Jose Police Department to see Officer Perez. Maria told Officer Perez that N. and J. wanted to speak with 6 him. Officer Perez took J. aside and spoke with her alone. She appeared upset and 7 she was reluctant to speak. Officer Perez asked her if she had been telling him the truth, and she nodded in response. (In her trial testimony about this meeting, J. 8 stated that she told Officer Perez everything was a lie, but she testified that in fact 9 she had been telling the truth.) 10 Officer Perez, the social worker, and the prosecutor visited J. at her home on January 9, 2013. Irma was present but in another room when the social worker 11 interviewed J. J. recanted her accusations and told the social worker that everything 12 she had told the police was a lie. She said she had lied because she did not like Cortez and wanted to get him out of the house. She also said Cortez was only 13 playing games with her and did not intend to touch her. She stated that she had been 14 confused about the location of her vagina. However, at some point in the interview, J. whispered that Cortez had in fact been touching her. In her testimony about the 15 interview, J. stated that she told the social worker she had been lying because she 16 felt bad for Irma. 17 The prosecutor then spoke with J. and told her the case was going to go forward regardless of what J. had said. The prosecutor said she herself would be “the bad 18 guy” and that she would not tell Irma what J. said. At that point, J. said she had not 19 been lying. J. was subsequently removed from her home and taken into protective custody. 20 B. Procedural Background 21 The prosecution charged Cortez with eight counts: Counts One and Two— 22 Aggravated sexual assault (rape) of a child (J.) under 14 years of age and seven or 23 more years younger than defendant (Pen. Code, §§ 261, subd. (a), 269)6; Counts Three and Four—Aggravated sexual assault (sexual penetration) of a child (J.) 24 under 14 years of age and seven or more years younger than defendant (§§ 269, 25 289, subd. (a)); Counts Five and Six—Lewd or lascivious act on a child (J.) by force (§ 288, subd. (b)(1)); Count Seven—Lewd or lascivious act on a child (N.) 26 under 14 years of age (§ 288, subd. (a)); and Count Eight—Attempting to dissuade 27 a witness or victim (J.) (§ 136.1, subd. (a)). As to Counts Five through Seven, the prosecution alleged Cortez committed lewd or lascivious acts against more than 1 one victim. (§ 667.61, subds. (b) & (e).) 2 At trial, the jury found defendant guilty on all eight counts and found true the 3 multiple victim allegations. The trial court sentenced defendant to an aggregate term of 105 years to life consecutive to three years. The term consisted of seven 4 consecutive terms of 15 years to life for Counts One through Seven, consecutive to 5 the upper term of three years for Count Eight. 6 Cortez, 2016 WL 6962539, at *1–5. 7 On November 29, 2019, the California Court of Appeal affirmed the judgment. See id. On 8 February 22, 2017, the California Supreme Court summarily denied a petition for review. See Ans. 9 Exh. H. 10 Petitioner filed the instant federal habeas petition on May 18, 2018. See ECF No. 1 11 (“Pet’n”). On January 14, 2020, United States Magistrate Judge Kandis A. Westmore ordered 12 Respondent to show cause why the petition should not be granted. ECF No. 6. On June 4, 2020, 13 Respondent filed an answer, ECF No. 14 (“Ans.”), and exhibits thereto, ECF Nos. 15–19. On July 14 28, 2020, Petitioner filed a traverse. ECF No. 22 (“Tr.”). 15 When the last state court to adjudicate a federal constitutional claim on the merits does not 16 provide an explanation for the denial, “the federal court should ‘look through’ the unexplained 17 decision to the last related state-court decision that does provide a relevant rationale.” Wilson v. 18 Sellers, 138 S. Ct. 1188, 1192 (2018). “It should then presume that the unexplained decision 19 adopted the same reasoning.” Id. Here, the California Supreme Court did not provide an 20 explanation for its denial of the petition for review. See Ans. Exh. H. Petitioner did not argue that 21 the California Supreme Court relied on different grounds than the state appellate court. See 22 generally Pet. Accordingly, this Court will “look through” the California Supreme Court’s decision 23 to the state appellate court’s decision. 24 II. LEGAL STANDARD 25 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 26 custody pursuant to the judgment of a State court only on the ground that he is in custody in 27 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The 1 petition may not be granted with respect to any claim that was adjudicated on the merits in state 2 court unless the state court’s adjudication of the claim: “(1) resulted in a decision that was contrary 3 to, or involved an unreasonable application of, clearly established Federal law, as determined by 4 the Supreme Court of the United States; or (2) resulted in a decision that was based on an 5 unreasonable determination of the facts in light of the evidence presented in the State court 6 proceeding.” 28 U.S.C. § 2254(d). 7 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court 8 arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a 9 question of law or if the state court decides a case differently than [the] Court has on a set of 10 materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000). “Under the 11 ‘reasonable application clause,’ a federal habeas court may grant the writ if the state court 12 identifies the correct governing legal principle from [the] Court’s decisions but unreasonably 13 applies that principle to the facts of the prisoner’s case.” Id. at 413. 14 “[A] federal habeas court may not issue the writ simply because the court concludes in its 15 independent judgment that the relevant state-court decision applied clearly established federal law 16 erroneously or incorrectly. Rather, the application must also be unreasonable.” Id. at 411. A federal 17 habeas court making the “unreasonable application” inquiry should ask whether the state court’s 18 application of clearly established federal law was “objectively unreasonable.” Id. at 409. This is a 19 “highly deferential” standard, which is “difficult to meet” and “demands that state-court decisions 20 be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). 21 The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is 22 in the holdings (as opposed to the dicta) of the United States Supreme Court as of the time of the 23 state court decision. Id. at 412. Clearly established federal law is defined as “the governing legal 24 principle or principles set forth by the [United States] Supreme Court.” Lockyer v. Andrade, 538 25 U.S. 63, 71–72 (2003). 26 III. DISCUSSION 27 In the petition, Petitioner raises the following claims: (1) Petitioner’s confession was 1 involuntary and was obtained and admitted in violation of Petitioner’s Fifth Amendment privilege 2 against self-incrimination and Fourteenth Amendment right to due process; (2) instructing the jury 3 that consent is not a defense to forcible lewd acts violated Petitioner’s Sixth Amendment right to 4 jury trial; (3) instructing the jury that whether Petitioner intended to cause a witness to tell the 5 truth was immaterial to his guilt violated Petitioner’s Sixth Amendment right to jury trial; (4) 6 misjoinder of the six sex offenses involving J. with the one sex offense involving N. violated 7 Petitioner’s Fourteenth Amendment right to a fair trial; (5) admitting the out-of-court statements of 8 N. violated Petitioner’s Fourteenth Amendment right to due process and Sixth Amendment right to 9 confrontation; (6) failing to instruct the jury on lesser included offenses violated Petitioner’s 10 Fourteenth Amendment right to due process and Sixth Amendment right to a jury trial; and (7) the 11 cumulative effect of the prejudice from all the errors violated Petitioner’s Fourteenth Amendment 12 right to due process and a fair trial. Pet’n at m-1 to m-21. The Court addresses each claim in turn. 13 A. Voluntariness of Petitioner’s Confession 14 Petitioner initially contends that the trial court erred in failing to suppress Petitioner’s 15 confession to San Jose Police Officer Emilio Perez because Petitioner’s confession was 16 involuntary. Pet’n at m-1 to m-5. 17 “[T]he ultimate issue of ‘voluntariness’ is a legal question requiring independent federal 18 determination.” Miller v. Fenton, 474 U.S. 104, 110 (1985). Although the state court’s 19 determination of voluntariness is not entitled to deference, the “[f]act-finding underlying the state 20 court’s decision is accorded the full deference of [28 U.S.C. § 2254(e)(1)].” Kirkpatrick v. 21 Chappell, 950 F.3d 1118, 1133 (9th Cir. 2020) (quoting Lambert v. Blodgett, 393 F.3d 943, 978 22 (9th Cir. 2004)). Accordingly, below, the Court provides the facts relevant to the voluntariness of 23 Petitioner’s confession. The Court then addresses Petitioner’s argument. 24 1. Relevant facts 25 The state appellate court summarized the facts relevant to the admission of Petitioner’s 26 confession as follows: 27 Officer Perez interviewed Cortez in one of the interview rooms at the San Jose 1 Police Department's Sexual Assault Investigation Unit on December 27, 2012. By 2 that time, the police had already interviewed N. and J. in detail. Officer Perez called Cortez and informed him police wanted to talk with him at the police department. 3 Cortez went to the police department on his own volition. When he arrived, the 4 police did not place him under arrest, handcuff him, or tell him he could not leave. Officer Perez was the sole questioner, and he did so almost entirely in Spanish. The 5 interview was about 70 minutes long and was recorded on video with audio. 6 At the start of the interview, Officer Perez questioned Cortez about various 7 biographical facts. When asked his date of birth, Cortez provided an incorrect date. Officer Perez then fully advised Cortez of his rights under Miranda and Cortez 8 acknowledged he understood them. Cortez then continued to answer Officer Perez's 9 questions. The two men appeared relaxed and casual throughout the interview. Officer Perez maintained a normal tone of voice and did not appear verbally or 10 physically aggressive at any time. 11 Cortez told Officer Perez he did not know why police wanted to question him. Officer Perez told Cortez “there are some allegations against you” and “there's a lot 12 of evidence in this case.” Officer Perez admonished Cortez to tell the truth and 13 warned him against lying. Officer Perez then raised N.'s allegations concerning the incident at the birthday party. Cortez repeatedly denied touching N. He said he was 14 in his bedroom watching television when N. came in, and he threatened to hit her, 15 whereupon she left. Officer Perez asked if Cortez was drunk at the time, but Cortez denied he was. 16 Officer Perez then questioned Cortez about J.'s allegations, again warning him that 17 “there's a lot of evidence against you.” Officer Perez said J. had been examined by 18 a doctor who conducted a SART exam on her. Officer Perez said they collected her clothes and took DNA samples from them. Cortez initially denied touching J. At 19 that point, Officer Perez told Cortez he was going to collect DNA samples from 20 him. They took several breaks while Officer Perez, with Cortez's consent, swabbed his mouth with Q–Tips. Officer Perez then left briefly with the samples. 21 Upon his return, Officer Perez told Cortez the samples would be sent to a 22 laboratory, and that someone would report back 15 minutes later on whether 23 Cortez's DNA had been found on J.'s clothes or body. Officer Perez then resumed his questioning of Cortez. Officer Perez admonished him not to lie and told him, 24 “you have to talk with the truth because everything that you're saying here, the 25 District Attorney will review it.” Officer Perez explained that everything Cortez said would be reported to the district attorney, who “sees the report and he decides 26 what's going to happen.” He added that the district attorney would decide if “Arturo [would] end up in jail or the charges can go [if he] doesn't have enough evidence.” 27 Officer Perez emphasized that if Cortez was lying, that would “look bad,” and he 1 admonished Cortez again to tell the truth. Cortez claimed he had told the truth. 2 Officer Perez then told Cortez the doctor would be able to tell if Cortez had 3 molested J. When Cortez again denied touching her, Officer Perez responded, “Yes it did happen because ... because we have the evidence. Okay so you still insist that 4 no, no, and that no ... that no, that no ... is not good ... 'Cause it did happen, we have 5 evidence, your fingerprints. We already have it for a long time.” After further questioning, Cortez began to allow that he may have touched J. At 6 first, he explained that it happened when they were “playing.” He stated that he did 7 not want to touch her, but added, “When we were playing ... yes, yes I touched her.” He explained that he would throw her on the bed and his hand would touch 8 her vagina, but he claimed he only touched her over her clothes. He then allowed 9 that his finger may have gone into her vagina on two occasions when they were playing. 10 When Officer Perez asked if Cortez had put his penis in J., he initially denied it. 11 After Officer Perez told him J. had seen semen inside her, Cortez admitted he may 12 have penetrated J. once. Cortez defended himself, stating, “she always wanted to do it.” He said she always wanted to caress him, grab him, and kiss him, and that “she 13 always grabbed my parts.” He said she would take off her clothes, that she would 14 try to take off his shorts, and that “sometimes she would go on top of me.” He maintained he only put his penis in her one time, and that he did not want to do so. 15 However, he continued to deny he had molested N. 16 At the end of the interview, Officer Perez suggested that Cortez write a letter of 17 apology or confession. Cortez agreed to do so and wrote four letters in Spanish— one each to J., N., Irma, and the judge. The letters to J. and Irma were “general 18 apology” letters asking for forgiveness and blaming his unspecified conduct on his 19 alcoholism. His letter to N. asked her to forgive him. He wrote that he wanted her and her parents to know “he would never do anything like that to her.” His letter to 20 the judge expressed regret for his conduct and stated, “I don't know how I could do 21 this.” In his in limine motions, Cortez challenged the admissibility of the above 22 statements and requested a hearing under Evidence Code section 402. The trial 23 court held a pretrial hearing on the matter at which Officer Perez testified. Officer Perez testified that he did not offer Cortez any deal with the district attorney or 24 offer to talk to the judge on Cortez's behalf. Officer Perez admitted to using 25 multiple “ruses” in which he told Cortez there was or would be evidence implicating him when in fact there was no such evidence. For example, Officer 26 Perez admitted that his use of the purported DNA testing was a “ruse” and that in 27 fact there was no DNA evidence implicating Cortez. He also admitted his assertion 1 of fingerprint evidence was false. 2 The court found no constitutional violations from the interrogation and denied the 3 motion to suppress. 4 Cortez, 2016 WL 6962539, at *5–7. 5 2. The admission of Petitioner’s confession does not warrant federal habeas relief. 6 Petitioner contends that the trial court erred in failing to suppress Petitioner’s confession to 7 San Jose Police Officer Emilio Perez because Petitioner’s confession was involuntary. Pet’n at m- 8 1 to m-5. The Court rejects Petitioner’s claim for two independent reasons. First, the Court 9 concludes that Petitioner’s confession was voluntary. Second, Petitioner has not demonstrated that 10 he was prejudiced by the admission of his confession. The Court addresses each of these issues in 11 turn. 12 a. Petitioner’s confession was voluntary. 13 The Fourteenth Amendment prohibits the admission of involuntary confessions in state 14 criminal cases. Blackburn v. Alabama, 361 U.S. 199, 207 (1960). To be voluntary, a confession 15 must be “the product of a rational intellect and a free will.” Id. 16 The voluntariness of a confession is evaluated by reviewing the police conduct in 17 extracting the statements and the effect of that conduct on the suspect. Miller v. Fenton, 474 U.S. 18 at 116. Without police misconduct casually related to the confession, there is no basis for 19 concluding that a confession was involuntary in violation of the Fourteenth Amendment. See 20 Colorado v. Connelly, 479 U.S. 157, 167 (1986) (stating that “coercive police activity is a 21 necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the 22 Due Process Clause”). 23 To determine the voluntariness of a confession, the Court must consider the effect that “the 24 totality of the circumstances” had upon the will of the defendant. Schneckloth v. Bustamonte, 412 25 U.S. 218, 226–27 (1973). On federal habeas review, courts “consider the totality of the 26 circumstances under a highly deferential standard to determine the reasonableness of the state 27 court’s conclusion that [the petitioner’s] statements were voluntary.” Balbuena v. Sullivan, 980 1 F.3d 619, 633 (9th Cir. 2020). “The ‘totality of the circumstances’ test is a general standard 2 requiring ‘even greater deference under [the Antiterrorism and Effective Death Penalty Act of 3 1996].’” Id. (quoting Cook v. Kernan, 948 F.3d 952, 968 (9th Cir. 2020)). 4 To determine the voluntariness of a confession, the Court asks whether the government 5 “obtained the statement by physical or psychological coercion or by improper inducement so that 6 the suspect’s will was overborne.” United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 7 1988). In determining whether the defendant’s will was overborne, the Court “takes into 8 consideration the totality of all the surrounding circumstances—both the characteristics of the 9 accused and the details of the interrogation.” Dickerson v. United States, 530 U.S. 428, 434 10 (2000). The factors to be considered include the degree of police coercion; the length, location and 11 continuity of the interrogation; and the defendant’s maturity, education, physical condition, and 12 mental health. Withrow v. Williams, 507 U.S. 680, 693–94 (1993). 13 In cases involving psychological coercion, “the pivotal question . . . is whether[, in light of 14 the totality of the circumstances,] the defendant's will was overborne when the defendant 15 confessed.” Ortiz v. Uribe, 671 F. 3d 863, 869 (9th Cir. 2011) (alteration in original) (quoting 16 United States v. Miller, 984 F.2d 1028, 1031 (9th Cir. 1993)). The officer’s interrogation 17 techniques must be “the kind of misbehavior that so shocks the sensibilities of civilized society as 18 to warrant a federal intrusion into the criminal processes of the States.” Moran v. Burbine, 475 19 U.S. 412, 433–34 (1986). A statement is involuntary if it is “extracted by any sort of threats or 20 violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of 21 any improper influence.” Hutto v. Ross, 429 U.S. 28, 30 (1976) (quotation omitted). Without more, 22 lying about or exaggerating the amount of evidence against a criminal defendant does not create 23 deception that rises to the level of a constitutional violation. See Frazier v. Cupp, 394 U.S. 731, 24 739 (1969) (concluding that the fact that the police misrepresented the statements that a witness 25 had made was “insufficient . . . to make this otherwise voluntary confession admissible”); see also 26 United States v. Miller, 984 F.3d at 1031 (concluding that the FBI’s statements to defendant that 27 defendant was involved in an espionage investigation did not make defendant’s confession 1 involuntary because “deception does not render [a] confession involuntary”). 2 Considering the totality of the circumstances, the Court concludes that Petitioner’s 3 confession was voluntary. The Court addresses in turn: (1) the circumstances of the interrogation, 4 (2) Officer Perez’s conduct, and (3) Petitioner’s characteristics. 5 First, the circumstances of the interrogation suggest that the interrogation was voluntary. In 6 the instant case, Petitioner was in a police station when he was interrogated, which weighs slightly 7 against a finding of voluntariness. See Dickerson, 530 U.S. at 435 (“Custodial police interrogation, 8 by its very nature, isolates and pressures the individual.”). However, the other facts surrounding 9 Petitioner’s interrogation suggest that the interrogation was voluntary. Indeed, Petitioner went to 10 the police station of his own volition. Cortez, 2016 WL 6962539, at *9. Furthermore, Petitioner 11 was not told that he was under arrest, told he could not leave, or handcuffed during the interview. 12 Id. Petitioner was advised of his Miranda rights and acknowledged that he understood them. Id. 13 Petitioner then was interviewed by Officer Perez alone for a little over an hour. Id. at *6, *9. The 14 interview was conducted almost entirely in Spanish and was recorded on video with audio. Id. 15 These circumstances weigh in favor of a finding of voluntariness. See Amaya-Ruiz v. Stewart, 121 16 F.3d 486, 494 (9th Cir. 1997), overruled on other grounds by United States v. Preston, 751 F.3d 17 1008, 1019–20 (9th Cir. 2008) (rejecting claim that confession was involuntary where “[t]he 18 atmosphere surrounding the questioning of [the suspect] was not coercive” and “[t]he questioning 19 lasted only forty minutes”); see also United States v. Haswood, 350 F.3d 1024, 1028 (9th Cir. 20 2003) (observing that “coercion typically involves far more outrageous conduct” than an all-day 21 interrogation). 22 Second, Officer Perez’s conduct does not weigh in favor of a finding of involuntariness. A 23 statement is involuntary if extracted by threats or obtained by promises. Hutto, 429 U.S. at 30. 24 However, in the instant case, Officer Perez did not threaten Petitioner or make him any promises 25 of leniency. Officer Perez simply told Petitioner to tell the truth because the District Attorney 26 would review Petitioner’s statements and would decide if Petitioner was going to jail or not. 27 Cortez, 2016 WL 6962539, at *6. Thus, Officer Perez did not make Petitioner promises of 1 leniency. See Balbuena, 980 F.3d at 629 (“Generally telling a suspect to speak truthfully does not 2 amount to police coercion.”); Amaya-Ruiz, 121 F.3d at 494 (rejecting claim that confession was 3 involuntary where officers encouraged the suspect to tell the truth and said “[w]e can forgive your 4 lies, but the United States Court system will not forgive your lies” because “[e]ncouraging [the 5 suspect] to tell the truth . . . did not amount to coercion”). 6 Officer Perez also told Petitioner that “there’s a lot of evidence in this case.” Cortez, 2016 7 WL 6962539, at *6. Specifically, after Petitioner denied N.’s and J.’s allegations, Officer Perez 8 told Petitioner that “it did happen, we have evidence, your fingerprints. We already have it for a 9 long time.” Id. However, the United States Supreme Court has held that exaggerating about the 10 amount of evidence against a suspect, without more, does not make a suspect’s statement 11 involuntary. See Frazier, 394 U.S. at 739 (concluding that the fact that the police misrepresented 12 the statements that a witness had made was “insufficient . . . to make this otherwise voluntary 13 confession admissible”); see also United States v. Miller, 984 F.2d at 1031 (stating that “deception 14 does not render [a] confession involuntary”). 15 Moreover, even if these deceptive tactics weigh in favor of involuntariness, Officer Perez’s 16 other behavior weighs in favor of a finding of voluntariness. During the interview, which was 17 recorded on video with audio, Officer Perez maintained a normal tone of voice and was not 18 physically or verbally aggressive. Cortez, 2016 WL 6962539, at *5, *8. In addition, nothing in 19 Petitioner’s appearance on the video suggested that he experienced discomfort or undue pressure 20 at any point in the interview. Id. Rather, Officer Perez and Petitioner appeared relaxed during the 21 interview. Id. These circumstances also suggest that Petitioner’s confession was voluntary. See 22 Pollard v. Garza, 290 F.3d 1030, 1035–36 (9th Cir. 2002) (concluding that a suspect’s confession 23 was voluntary where the suspect showed no signs of physical discomfort). 24 Finally, Petitioner’s characteristics do not weigh in favor of a finding of involuntariness. 25 Petitioner was 43 years old at the time, and Petitioner does not assert that he was especially 26 vulnerable to coercion as a result of his mental abilities, his intelligence, or his level of education. 27 Id. at *9. Indeed, Petitioner had multiple previous misdemeanor convictions, which suggests that 1 Petitioner may have had experience with law enforcement. Id. These circumstances also suggest 2 that Petitioner’s confession was voluntary. See Balbuena, 980 F.3d at 634 (holding that confession 3 was voluntary where “there [was] no evidence that [the suspect] had a limited IQ or that he was 4 ‘easily confused’ and ‘highly suggestible and easy to manipulate’”) (quotation omitted). 5 Considering the totality of the circumstances, the Court concludes that Petitioner’s 6 confession was voluntary. Although Officer Perez exaggerated the evidence against Petitioner, 7 exaggeration of the evidence against a suspect, without more, does not make a confession 8 involuntary. Moreover, even if Officer Perez’s deceptive tactics weigh against a finding of 9 voluntariness, the totality of the circumstances support a finding that Petitioner’s confession was 10 voluntary. See Frazier, 394 U.S. at 739 (concluding that the fact that the police misrepresented the 11 statements that a witness had made did not make confession involuntary when petitioner got 12 partial warnings of his constitutional rights and was questioned for a short duration of time). 13 Accordingly, the Court concludes that Petitioner’s confession was voluntary. 14 b. Petitioner was not prejudiced. 15 In any event, the Court concludes that Petitioner was not prejudiced by the admission of 16 his confession. If the erroneous admission of a petitioner’s statements was harmless, the petitioner 17 is not entitled to relief. Arizona v. Fulminante, 499 U.S. 279, 310 (1991) (holding that the 18 erroneous admission of a confession is subject to the harmless error standard). 19 To determine whether a trial court error is harmless, federal courts apply Brecht v. 20 Abrahamson, 507 U.S. 619 (1993). Davis v. Ayala, 135 S. Ct. 2187, 2196 (2018) (stating that the 21 Brecht v. Abrahamson test is used to determine whether an error was harmless). To be entitled to 22 relief, the petitioner must show that there is “more than a ‘reasonable possibility’ that the error was 23 harmful.” Id. at 2198 (quoting Brecht, 507 U.S. at 637). Under Brecht, “relief is proper only if the 24 federal court has ‘grave doubt about whether a trial error of federal law had substantial and 25 injurious effect or influence in determining the jury’s verdict.’” Id. at 2197–98 (quoting O’Neal v. 26 McAninch, 513 U.S. 432, 436 (1995)). 27 In the instant case, the Court does not have “grave doubt” that any erroneous admission of 1 Petitioner’s confession had “substantial and injurious effect or influence in determining the jury’s 2 verdict.” Id. Petitioner’s confession was critical evidence against him. See Fulminante, 499 U.S. at 3 296 (“[A] defendant’s own confession is probably the most probative and damaging evidence that 4 can be admitted against him.”). However, Petitioner’s confession was accompanied by other 5 critical evidence, including the testimony of J. and N., the victims of Petitioner’s offenses; out-of- 6 court statements by J. and N.; and corroborating testimony by Officer Perez, N.’s mother and 7 father, and several other law enforcement witnesses. See, e.g., Ans. Exh. B. at 118–54 (testimony 8 of J. regarding Petitioner’s sexual abuse of her); 326–31 (testimony of N.’s dad regarding when N. 9 told her parents that Petitioner touched her); id. at 387–90 (testimony of N.’s mom regarding when 10 N. told her parents that Petitioner touched her); id. at 357–59 (testimony of N. about Petitioner 11 touching her); id. at 541 (testimony of Officer Perez about J.’s allegations). 12 Moreover, the jury was given California Criminal Jury Instruction 1190, which instructs 13 that a determination of guilt regarding sexual assault crimes does not require the victim's 14 testimony to be corroborated by other evidence. See Ans. Exh. A at 487 (jury instruction stating 15 that “[c]onviction of a sexual assault crime may be based on the testimony of a complaining 16 witness alone”). Regardless, as discussed above, there was extensive corroborating testimony from 17 other witnesses in addition to the two victims’ trial testimony and out-of-court statements. 18 In contending that J.’s testimony against Petitioner was not critical evidence, Petitioner 19 asserts that J.’s testimony was inconsistent. Pet’n at m-4 to m-5. On one occasion, J. stated that she 20 had lied. See Ans. Exh. B at 245–46. However, multiple witnesses testified that J., who was 21 sexually abused when she was between 8 and 11 years old and who was 12 years old at the time of 22 the trial, was pressured to recant her testimony by J.’s own mother, Irma, who was Petitioner’s 23 girlfriend, as well as Petitioner, both of whom lived with J. Specifically, Janet Caudillo, who 24 interviewed J., testified that J. told Caudillo that J. recanted because J.’s mother did not believe J. 25 Ans. Exh. B at 222. Additionally, Mary Robinson, a Deputy District Attorney, testified that J.’s 26 mother told Robinson that J. and N. had been pressured to make their statements. Id. at 255–56. 27 Officer Perez also testified that J.’s mother had told J. that J.’s mother did not believe J. Id. at 540 1 In addition, Petitioner himself pressured J. to recant her testimony. Specifically, in jail calls 2 that were recorded and were played for the jury during trial, Petitioner called his girlfriend, J.’s 3 mother, from jail, and told her that J. and N. needed to recant their allegations. Id. at 473. 4 Following Petitioner’s conduct in pressuring J. to recant her testimony, the jury found Petitioner 5 guilty of attempting to dissuade a witness. Cortez, 2016 WL 6962539, at *5. Despite the efforts of 6 J.’s mom and Petitioner to pressure J. to recant her testimony, J. later confirmed that she was 7 initially telling the truth. See Ans. Exh. B at 118–54 (testimony of J. regarding Petitioner’s sexual 8 abuse of her). 9 Petitioner further asserts that the testimony and out-of-court statements of N., who was five 10 years old at the time of trial, were inconsistent. Pet’n at m-5. However, N.’s testimony and out-of- 11 court statements were consistent with each other as well as the testimony of several other 12 witnesses. See Ans. Exh. B. at 357–59 (N.’s testimony at trial that Petitioner touched her); id. at 13 326–31(testimony of N.’s dad regarding when N. told her parents that Petitioner touched her); id. 14 at 387–90 (testimony of N.’s mom regarding when N. told her parents that Petitioner touched her); 15 id. at 568 (testimony of Officer Perez regarding touching of N.). Thus, the testimony of N., J., and 16 several other witnesses constituted critical evidence against Petitioner even without Petitioner’s 17 confession. 18 In contending that the involuntariness of Petitioner’s confession is grounds for this Court 19 to grant habeas relief to Petitioner, Petitioner relies on Campos v. Stone, a decision from another 20 court in this district that granted habeas relief based on the erroneous admission of petitioner’s 21 involuntary confession. 201 F. Supp. 3d 1083 (N.D. Cal. 2016). The Court concludes that Campos 22 is distinguishable. In Campos, there was only one victim. Id. at 1087. Moreover, without 23 petitioner’s confession, “the evidence against [petitioner] was otherwise weak.” Id. at 1099. 24 “[W]ithout [petitioner’s] statement, the only evidence against [petitioner] consisted of [the 25 victim’s] uncorroborated statements, which were inconsistent and contradicted by other evidence.” 26 Id. Moreover, the jury “clearly discredited some of [the victim’s] statements, as demonstrated by” 27 petitioner’s acquittal on six of the seven offenses with which he was charged. Id. 1 By contrast, in the instant case, the evidence against Petitioner included not only his 2 confession but also the testimony and statements of the two victims, N. and J., the latter of whom 3 testified regarding multiple sexual offenses that Petitioner committed against her, and the 4 corroborating testimony of several other witnesses. See, e.g., Ans. Exh. B. at 118–54 (testimony of 5 J. regarding Petitioner’s sexual abuse of her); 326–31 (testimony of N.’s dad regarding when N. 6 told her parents that Petitioner touched her); id. at 387–90 (testimony of N.’s mom regarding when 7 N. told her parents that Petitioner touched her); id. at 357–59 (testimony of N. about Petitioner 8 touching her); id. at 541 (testimony of Officer Perez about J.’s allegations). Based on this 9 evidence, Petitioner was convicted of all eight counts with which he was charged. Cortez, 2016 10 WL 6962539, at *5. In light of the extensive evidence of Petitioner’s guilt, the Court does not have 11 “grave doubt” that any erroneous admission of Petitioner’s confession had “substantial and 12 injurious effect or influence in determining the jury’s verdict.” Davis, 135 S. Ct. at 2197–98 13 (quotation omitted). Thus, Petitioner is not entitled to habeas relief on this claim. 14 B. Instructing the Jury that Consent is Not a Defense to Forcible Lewd Act 15 Petitioner next asserts that the trial court erred in instructing the jury that consent is not a 16 defense to the force element of forcible lewd or lascivious acts in violation of California Penal 17 Code § 288(b)(1). Pet’n at m-5 to m-6. Petitioner contends that the trial court’s instruction 18 prevented the jury from deciding a fact necessary to prove the force element of the offense and 19 thus violated Petitioner’s Sixth Amendment right to jury trial. Id. 20 On this issue, the state appellate court concluded that the trial court did not err in 21 instructing the jury that “[i]t is not a defense that the child may have consented to the act.” Cortez, 22 2016 WL 6962539, at *17. In coming to this conclusion, the state appellate court relied on the 23 California Supreme Court’s decision in People v. Soto, which held that “the victim’s consent is not 24 a defense to the crime of lewd acts on a child under age 14 under any circumstances.” 51 Cal. 4th 25 229, 233 (2011). In the instant case, both N. and J. were under fourteen years old at the time of the 26 crimes. Cortez, 2016 WL 6962539, at *1. Specifically, N. was 4 years old when Petitioner 27 allegedly molested her, and J. was between 8 and 11 years old when Petitioner allegedly molested 1 her. Id. 2 Respondent contends that Petitioner is not entitled to habeas relief on this claim because 3 this issue presents a state law question which cannot be challenged on federal habeas review. Ans. 4 at 14–15. For the reasons explained below, the Court agrees. 5 “[I]t is not the province of a federal habeas court to reexamine state-court determinations 6 on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). The United States 7 Supreme Court has “repeatedly held that a state court’s interpretation of state law, including one 8 announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas 9 corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005). Accordingly, a federal court cannot depart 10 from a state court’s determination of the elements of a state offense. See Hicks v. Feiock, 485 U.S. 11 624, 629 (1988) (rejecting argument that the state supreme court erred in determining the elements 12 of the offense because a federal court is “not at liberty to depart from the state appellate court’s 13 resolution of . . . issues of state law”); Stanton v. Benzler, 146 F.3d 726, 728 (9th Cir. 1988) 14 (concluding that a state court’s determination on the elements of an offense “is not open to 15 challenge on habeas review”); see also Jackson v. Virginia, 443 U.S. 307, 324 n.16 (1979) (stating 16 that federal courts should avoid “intrusions upon the power of the States to define criminal 17 offenses”). 18 In this claim, Petitioner contends that the trial court erred in instructing the jury that 19 consent is not a defense to the force element of forcible lewd or lascivious acts. Pet’n at m-5 to m- 20 6. Because Petitioner asserts that consent is not a defense to the force element of forcible lewd or 21 lascivious acts, Petitioner’s claim raises the issue of what a state offense’s elements are. A state 22 court’s determination of the elements of a state offense is a state law issue that cannot be 23 challenged on federal habeas review. See Stanton, 146 F.3d at 728 (concluding that a state court’s 24 determination on the elements of an offense “is not open to challenge on habeas review”). Thus, 25 this Court cannot consider Petitioner’s claim on federal habeas review. 26 Even if this Court could consider Petitioner’s claim on federal habeas review, the state 27 appellate court correctly concluded that Petitioner’s claim was foreclosed by state law. The 1 California Supreme Court has explicitly held that “the victim’s consent is not a defense to the 2 crime of lewd acts on a child under age 14 under any circumstances.” Soto, 51 Cal. 4th at 233. 3 Accordingly, even Petitioner conceded that his claim was foreclosed by state law. In his appeal at 4 the state appellate court, Petitioner “acknowledge[d] that the California Supreme Court upheld this 5 rule in People v. Soto,” but Petitioner “argue[d] that case was wrongly decided.” Cortez, 2016 WL 6 6962539, at *17. Therefore, Petitioner is not entitled to habeas relief on this claim. 7 C. Instructing the Jury that Whether Petitioner Intended to Cause a Witness to Tell the Truth Was Immaterial to His Guilt 8 Petitioner next asserts that the trial court erred in instructing the jury that whether 9 Petitioner intended to cause a witness to tell the truth was immaterial to his guilt for attempting to 10 dissuade a witness or victim in violation of California Penal Code § 136.1(a)(2). Pet’n at m-6. 11 Petitioner contends that the trial court’s jury instruction, which the trial court gave in response to a 12 jury question, violated Petitioner’s Sixth Amendment right to a jury trial. Id. 13 On this issue, the state appellate court concluded that Petitioner “forfeited this claim by 14 stipulating to the trial court’s response” to the jury’s question. Cortez, 2016 WL 6962539, at *20. 15 The state appellate court then concluded that “nothing in the trial court’s response misstated the 16 law.” Id. The state appellate court thus concluded that Petitioner’s claim was without merit. Id. at 17 *21. 18 Respondent contends that the state appellate court’s decision rested on Petitioner’s 19 forfeiture of this claim, which is an adequate and independent state ground. Ans. at 15–17. For the 20 reasons explained below, the Court agrees. 21 A federal court will not review substantive questions of federal law decided by a state court 22 if the decision also rests on a state law ground that is independent of the federal question and 23 adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729–30 (1991). In federal 24 habeas cases, the “adequate and independent state ground” doctrine is a matter of comity and 25 federalism. Id. A petitioner can avoid a procedural bar only if he “can demonstrate cause for the 26 default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that 27 1 failure to consider the claims will result in a fundamental miscarriage of justice.” Id. at 750. 2 In the instant case, the state appellate court concluded that Petitioner had forfeited this 3 claim because Petitioner stipulated to the jury instruction: 4 As an initial matter, we note that Cortez forfeited this claim by stipulating to the trial court's response. (People v. Harris (2008) 43 Cal.4th 1269, 1317 [defendant 5 waived claim by specifically agreeing to trial court's handling of jury question]; 6 People v. Rogers, supra, 39 Cal.4th at p. 877 [counsel's acquiescence to court's response to jury question forfeited claim on appeal].) 7 Cortez, 2016 WL 6962539, at *20. Because the state appellate court relied on Petitioner’s 8 forfeiture to reject this claim, this Court must not review this claim if Petitioner’s forfeiture 9 constitutes an adequate and independent state ground. 10 For a state court rule to be adequate, the rule must be firmly established and regularly 11 followed. Walker v. Martin, 562 U.S. 307, 316 (2011). A state court may be found inadequate 12 when “discretion has been exercised to impose novel and unforeseeable requirements without fair 13 or substantial support in prior state law.” Id. at 320 (quotation omitted). 14 The United States Supreme Court and the Ninth Circuit have recognized that California’s 15 contemporaneous objection rule is an adequate and independent state ground sufficient to bar the 16 review of claims by a federal court. See, e.g., Ylst v. Nunnemaker, 501 U.S. 797, 799, 805–06 17 (1991) (concluding that claim was procedurally barred where petitioner failed to object below); 18 Davis v. Woodford, 384 F.3d 628, 653–54 (9th Cir. 2004) (same). Specifically, the Ninth Circuit 19 has held that failure to contemporaneously object to a jury instruction can constitute an 20 independent and adequate state ground. See Paulino v. Castro, 371 F.3d 1083, 1092–93 (9th Cir. 21 2004) (concluding that defense counsel’s failure to contemporaneously object to the challenged 22 jury instruction, as required by “California’s contemporary-objection rule,” was an adequate and 23 independent ground that barred consideration of petitioner’s objection to the jury instruction). 24 Petitioner contends that there are not adequate state grounds here because California law 25 holds that a reviewing court may exercise discretionary authority to review non-evidentiary claims 26 on the merits, even without an objection having been made. Tr. at 9. However, the United States 27 1 Supreme Court has held that a state court rule can be adequate even if it is discretionary. Walker, 2 562 U.S. at 316 (holding that a “discretionary state procedural rule” can “serve as an adequate 3 ground to bar federal habeas review”) (quotation omitted). Because even a discretionary rule may 4 be an adequate ground, and both the United States Supreme Court and the Ninth Circuit have held 5 that California’s contemporaneous objection rule is an adequate ground, the Court concludes that 6 Petitioner’s failure to object to the jury instruction is an adequate and independent state ground for 7 the state appellate court’s decision. 8 To overcome procedural default, a petitioner must establish either: (1) cause for the 9 default, and prejudice as a result of the alleged violation of federal law, or (2) that failure to 10 consider the defaulted claims will result in a “fundamental miscarriage of justice.” Coleman, 501 11 U.S. at 750. In the instant case, Petitioner has done neither. Indeed, neither the Petition nor the 12 Traverse address whether Petitioner could overcome procedural default. Because Petitioner’s 13 claim is procedurally barred, the Court must disregard it. 14 Even if this claim were not procedurally barred, this claim presents a state law question 15 which cannot be challenged on federal habeas review. As explained above, supra Section III(B), a 16 federal court cannot depart from a state court’s determination of the elements of a state offense. 17 See Hicks, 485 U.S. at 629 (concluding that a federal court is “not at liberty to depart from the 18 state appellate court’s resolution of . . . issues of state law”); Stanton, 146 F.3d at 728 (concluding 19 that a state court’s determination on the elements of an offense “is not open to challenge on habeas 20 review”). In this claim, Petitioner challenges the state appellate court’s conclusion as to the 21 elements of the state offense of attempting to dissuade a witness or victim. Pet’n at m-6. This 22 Court cannot depart from the state appellate court’s determination of that state law issue. Thus, 23 Petitioner is not entitled to habeas relief on this claim. 24 D. Misjoinder of the Offenses Involving J. and the Offense Involving N. 25 Petitioner contends that the trial court erred in joining the six offenses involving J. with the 26 one offense involving N. because the case concerning J. was far more inflammatory than the case 27 involving N. Pet’n at m-6 to m-7. Petitioner asserts that the misjoinder of the offenses involving J. 1 and the offense involving N. violated his Fourteenth Amendment right to a fair trial. Id. 2 On this claim, the state appellate court concluded that “joinder of the charges did not 3 violate [Petitioner’s] right to a fair trial.” Cortez, 2016 WL 6962539, at *13. Petitioner contends 4 that the state appellate court’s ruling that joinder of the charges did not violate Petitioner’s right to 5 a fair trial was an unreasonable application of clearly established Supreme Court law as set forth in 6 United States v. Lane, 474 U.S. 438 (1986). Pet’n at m-7. 7 However, there is no clearly established United States Supreme Court law on this issue. 8 Petitioner relies upon Lane, where the United States Supreme Court stated in a footnote that 9 misjoinder may rise to the level of a constitutional violation “if it results in prejudice so great as to 10 deny a defendant his Fifth Amendment right to a fair trial.” Lane, 474 U.S. at 446 n.8. However, 11 the Ninth Circuit has repeatedly held that the Lane footnote “is dicta” because “Lane dealt with the 12 joinder of standards under Federal Rules of Criminal Procedure 8 and 52” and thus “no 13 constitutional issue was before the Court.” Collins v. Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010) 14 (affirming denial of habeas relief where the petitioner relied on the Lane footnote); accord 15 Martinez v. Yates, 585 F. App’x 460, 461 (9th Cir. 2014) (same). Because the Lane footnote is 16 dicta, the Lane footnote does not constitute clearly established United States Supreme Court law. 17 See Collins, 603 F.3d at 1132 (affirming denial of habeas relief because the Lane footnote was not 18 clearly established United States Supreme Court law); Martinez, 585 F. App’x at 461 (“[W]e have 19 held that this footnote in Lane does not qualify as clearly established federal law under federal 20 habeas law”); see generally Cullen, 563 U.S. at 412 (stating that the only definitive source of 21 clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings, not the dicta, of the 22 United States Supreme Court). 23 Because there is no clearly established United States Supreme Court law on this issue, the 24 state court’s denial of relief was not contrary to or an unreasonable application of clearly 25 established United States Supreme Court law. See 28 U.S.C. § 2254(d)(1) (stating that a habeas 26 petition may not be granted with respect to any claim that was adjudicated on the merits in state 27 court unless the state court’s adjudication of the claim “resulted in a decision that was contrary to, 1 or involved an unreasonable application of, clearly established Federal law, as determined by the 2 Supreme Court of the United States”); see also Wright v. Van Patten, 552 U.S. 120, 126 (2008) 3 (“[I]t cannot be said that a state court unreasonably applied clearly established Federal law” when 4 United States Supreme Court precedent “give[s] no clear answer to the question presented.”) 5 (internal quotation marks and alterations omitted). 6 Accordingly, the Ninth Circuit has repeatedly held that there is no clearly established 7 United States Supreme Court law on this issue and has thus denied federal habeas relief. See 8 Collins, 603 F.3d at 1132 (affirming denial of claim for habeas relief based on misjoinder); see 9 also Collins v. Uribe, 564 F. App’x 343 (9th Cir. 2014) (affirming denial of habeas relief where 10 petitioner argued that trial court erred in failing to sever counts because “[t]he Supreme Court has 11 never held that a trial court’s failure to provide separate trials on different charges implicates a 12 defendant’s right to due process”); Martinez, 585 F. App’x at 461 (9th Cir. 2014) (affirming denial 13 of habeas relief because “there is no clearly established Supreme Court precedent dictating when a 14 trial in state court must be severed”); Hollie v. Hedgpeth, 456 F. App’x 685, 685 (9th Cir. 2011) 15 (affirming denial of habeas relief where petitioner argued that trial court erred in failing to sever 16 counts because “[t]he Supreme Court has never held that a trial court’s failure to provide separate 17 trials on different charges implicates a defendant’s right to due process”). Thus, Petitioner is not 18 entitled to habeas relief on this claim.1 19 E. Admission of N.’s Out-of-Court Statements 20 Petitioner contends that the trial court erred in admitting N.’s out-of-court responses to 21 22 1In the Petition, Petitioner also relies on Bean v. Calderon, 163 F.3d 1073, 1077 (9th Cir. 1998). In 23 that case, the Ninth Circuit held that the joinder of two indictments deprived the petitioner of a fair trial. Id. at 1083. However, that case was distinct from the instant case because the habeas petition 24 in Bean was filed before the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was enacted. See Bean, 163 F.3d at 1077 (“Because Bean filed his habeas petition before the 25 enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA’), the provisions of the AEDPA do not apply to this case.”). Thus, unlike Petitioner in the instant case, 26 the petitioner in Bean was not required to show that the state court’s adjudication of the claim was contrary to or involved an unreasonable application of clearly established United States Supreme 27 Court law. See 28 U.S.C. § 2254(d)(1). As stated above, Petitioner in the instant case cannot satisfy the AEDPA standard. 1 police questions because N lacked competence to testify at the time she made those statements due 2 to N.’s age. Pet’n at m-7 to m-19. N. was four years old at the time N. made her out-of-court 3 statements and five years old at the time of trial. Cortez, 2016 WL 6962539, at *1. Petitioner 4 asserts that the admission of N.’s out-of-court statements violated Petitioner’s Fourteenth 5 Amendment right to due process and Sixth Amendment right to confrontation of the witnesses 6 against him. Id. at m-7. 7 On this claim, the state appellate concluded that admission of N.’s out-of-court statements 8 did not violate Petitioner’s constitutional rights. Cortez, 2016 WL 6962539, at *9. Below, the 9 Court considers in turn: (1) the Sixth Amendment’s Confrontation Clause; and (2) the Fourteenth 10 Amendment’s Due Process Clause. 11 1. The Sixth Amendment’s Confrontation Clause 12 The Confrontation Clause of the Sixth Amendment provides that in criminal cases the 13 accused has the right to “be confronted with witnesses against him.” U.S. Const. amend. VI. The 14 federal confrontation right applies to the states through the Fourteenth Amendment. Pointer v. 15 Texas, 380 U.S. 400, 403 (1965). A primary interest secured by the Confrontation Clause is the 16 right of cross-examination. See Davis v. Alaska, 415 U.S. 308, 315–16 (1974). 17 The Confrontation Clause applies to all “testimonial” statements. See Crawford v. 18 Washington, 541 U.S. 36, 50–51 (2004). “Testimony. . . is typically a solemn declaration or 19 affirmation made for the purpose of establishing or proving some fact.” Id. at 51 (citations and 20 quotation marks omitted). The Confrontation Clause applies to testimonial hearsay, which are out- 21 of-court statements introduced at trial, regardless of the admissibility of the statements under state 22 laws of evidence. Id. at 50–51. Out-of-court statements by witnesses that are testimonial hearsay 23 are barred under the Confrontation Clause unless: (1) the witnesses are unavailable, and (2) the 24 defendants had a prior opportunity to cross-examine the witnesses. Id. at 59. 25 However, the United States Supreme Court has explicitly stated that “when the declarant 26 appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the 27 use of his prior testimonial statements.” Id. at 59 n.9; see also California v. Green, 399 U.S. 149, 1 158 (1970) (“[T]he Confrontation Clause is not violated by admitting a declarant’s out-of-court 2 statements, as long as the declarant is testifying as a witness and subject to full and effective cross- 3 examination.”). The Confrontation Clause “does not bar admission of a statement so long as the 4 declarant is present at trial to defend or explain it.” Crawford, 541 U.S. at 59 n.9; Green, 399 U.S. 5 at 158 (“[I]f the declarant is present and testifying at trial, the out-of-court statement for all 6 practical purposes regains most of the lost protections” provided by confrontation). 7 In the instant case, N. testified at trial and was subject to cross-examination by Petitioner. 8 See Ans. Exh. B at 11–22 (cross-examination of N. at trial by Petitioner’s counsel). Accordingly, 9 admission of N.’s hearsay statements did not violate the Confrontation Clause. See Crawford, 541 10 U.S. at 59 n.9 (holding that the Confrontation Clause does not bar the admission of testimonial 11 hearsay when the declarant appears at trial and is subject to cross-examination); Green, 399 U.S. 12 at 158 (same); see also Cunningham v. Grounds, 2013 WL 215283, at *3 (N.D. Cal. May 16, 13 2013) (denying habeas relief to petitioner who claimed that improper admission of child victim’s 14 prior statements violated the Confrontation Clause where child victim testified in court). Because 15 N. testified in person at trial and was subject to cross-examination by Petitioner, the Confrontation 16 Clause does not bar the admission of N.’s out-of-court statements. 17 2. The Fourteenth Amendment’s Due Process Clause 18 The admission of evidence is not subject to federal habeas review unless a specific 19 constitutional guarantee is violated or the error is of such magnitude that the result is a denial of 20 the fundamentally fair trial guaranteed by due process. See Colley v. Sumner, 784 F.2d 984, 990 21 (9th Cir. 1986) (stating that habeas relief could not be granted based on the erroneous admission of 22 evidence “unless admission of the testimony was arbitrary or fundamentally unfair”). Petitioner's 23 entitlement to habeas relief on this ground does not turn on whether a state evidentiary law has 24 been violated, but whether the admission of the evidence “so infected the entire trial that the 25 resulting conviction violates due process.” McGuire, 502 U.S. at 72. A failure to comply with state 26 rules of evidence is neither a necessary nor a sufficient basis for granting federal habeas relief on 27 due process grounds. See Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999) (“Even where it 1 appears that evidence was erroneously admitted, a federal court will interfere only if it appears that 2 its admission violated fundamental due process and the right to a fair trial.”). 3 In the instant case, Petitioner has not demonstrated that admission of N.’s out-of-court 4 statements was fundamentally unfair. N.’s out-of-court statements were consistent with N.’s 5 testimony at trial. See Ans. Exh. B. at 357–59 (N.’s testimony at trial that Petitioner touched her). 6 In addition, Officer Perez, who interviewed N.; Maria, who is N.’s mom; and David, who is N.’s 7 dad, corroborated N.’s out-of-court statements in their testimony at trial. See Ans. Exh. B at 326– 8 31 (testimony of N.’s dad regarding when N. told her parents that Petitioner touched her); id. at 9 387–90 (testimony of N.’s mom regarding when N. told her parents that Petitioner touched her); 10 id. at 568 (testimony of Officer Perez regarding touching of N.). 11 Finally, the jury was given California Criminal Jury Instruction 1190, which instructs that a 12 determination of guilt regarding sexual assault crimes does not require the victim's testimony to be 13 corroborated by other evidence, including the victim’s out of court statements. See Ans. Exh. A at 14 487 (jury instruction stating that “[c]onviction of a sexual assault crime may be based on the 15 testimony of a complaining witness alone”). Thus, Petitioner has failed to show that admission of 16 N.’s out-of-court statements so infected the entire trial that the resulting conviction violates the 17 Due Process Clause. Accordingly, Petitioner is not entitled to habeas relief on this claim. 18 F. Failure to Instruct the Jury on Lesser Included Offenses 19 Petitioner contends that the trial court erred in failing to instruct the jury that: (1) unlawful 20 sexual intercourse with a minor who is more than three years younger than the defendant is a 21 lesser included offense of aggravated sexual assault through rape, and (2) unlawful sexual 22 penetration with a minor who is more than three years younger than the defendant is a lesser 23 included offense of aggravated sexual assault. Pet’n at m-19 to m-20. Petitioner contends that the 24 trial court’s failure to instruct the jury on these lesser included offenses violated Petitioner’s 25 Fourteenth Amendment right to due process and Sixth Amendment right to a jury trial. Id. 26 On this issue, the state appellate court concluded that, “even assuming the court should 27 have instructed the jury on the lesser included offenses, the failure to do so was harmless because 1 it is not reasonably probable the jury would have found favorably for [Petitioner] on the charged 2 counts.” Cortez, 2016 WL 6962539, at *17–*19. Petitioner contends that the state appellate court’s 3 determination that the error was harmless was an unreasonable application of clearly established 4 United States Supreme Court law as set forth in Keeble v. United States, 412 U.S. 205 (1973); 5 Beck v. Alabama, 447 U.S. 625 (1980); and In re Winship, 397 U.S. 358 (1970). Pet’n at m-19 to 6 m-20. 7 However, Beck, Keeble, and Winship do not apply to the instant circumstances. In Beck, the 8 United States Supreme Court held that a defendant may be entitled to lesser included offense 9 instructions in a capital case. 447 U.S. at 638. However, the United States Supreme Court 10 explicitly declined to extend its holding to non-capital cases. Id. at 638 n.14. Specifically, the 11 United States Supreme Court stated: “[W]e need not and do decide whether the Due Process 12 Clause would require the giving of [lesser included offense] instructions in a noncapital case.” Id. 13 at 638 n.14. Similarly, in Keeble, the United States Supreme Court declined to recognize a right to 14 lesser included offense instructions in non-capital cases. Specifically, the United States Supreme 15 Court stated: “[W]e have never explicitly held that the Due Process Clause of the Fifth 16 Amendment guarantees the right of a defendant to have the jury instructed on a lesser included 17 offense.” 412 U.S. at 213. Additionally, Winship held that “the Due Process Clause protects the 18 accused against conviction except upon proof beyond a reasonable doubt of every fact necessary 19 to constitute the crime with which he is charged.” 397 U.S. at 363–64. However, Winship never 20 mentioned lesser included offense instructions at all. Accordingly, the Court concludes that Beck, 21 Keeble, and Winship did not clearly establish the right of a defendant in a non-capital case to lesser 22 included offense instructions. 23 Because there is no clearly established United States Supreme Court authority that requires 24 lesser included offense instructions, the state appellate court’s decision was not contrary to or an 25 unreasonable application of clearly established United States Supreme Court law. See 28 U.S.C. § 26 2254(d)(1) (stating that a habeas petition may not be granted with respect to any claim that was 27 adjudicated on the merits in state court unless the state court’s adjudication of the claim “resulted 1 in a decision that was contrary to, or involved an unreasonable application of, clearly established 2 Federal law, as determined by the Supreme Court of the United States”); see also Wright, 552 U.S. 3 at 126 (“[I]t cannot be said that a state court unreasonably applied clearly established Federal law” 4 when United States Supreme Court precedent “give[s] no clear answer to the question presented.”) 5 (internal quotation marks and alterations omitted). Accordingly, Petitioner is not entitled to habeas 6 relief on this claim. 7 G. Cumulative Error 8 Finally, Petitioner contends that the cumulative effect of the prejudice from all the errors 9 violated Petitioner’s Fourteenth Amendment right to due process and a fair trial. Pet’n at m-21. 10 Respondent contends that the state appellate court reasonably concluded that there were no errors, 11 so there was no prejudice to cumulate. Ans. at 23. 12 In some cases, although no single existing constitutional error is sufficiently prejudicial to 13 warrant reversal, the cumulative effect of several constitutional errors may still prejudice a 14 defendant so much that his conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862, 15 893–95 (9th Cir. 2003) (considering whether the cumulative effect of multiple constitutional errors 16 in the defendant’s case had a “substantial and injurious effect” on the jury’s verdict) (quoting 17 Coleman, 525 U.S. at 145). Where there is no single existing constitutional error, however, there is 18 nothing to accumulate to the level of a constitutional violation. See Mancuso v. Olivarez, 292 F.3d 19 939, 957 (9th Cir. 2002), overruled on other grounds as recognized by United States v. Chandler, 20 658 F. App’x 841 (9th Cir. 2016) (“Because there is no single constitutional error in this case, 21 there is nothing to accumulate to a level of a constitutional violation.”). Here, Petitioner has failed 22 to establish any constitutional error. See Sections III(A)–(F), supra. Accordingly, there are no 23 errors to aggregate. Thus, Petitioner is not entitled to habeas relief on his cumulative error claim. 24 IV. CONCLUSION 25 The petition for a writ of habeas corpus is DENIED. 26 Petitioner has not shown “that jurists of reason would find it debatable whether the petition 27 states a valid claim of the denial of a constitutional right [or] that jurists of reason would find it 1 debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 2 U.S. 473, 484 (2000). Accordingly, a certificate of appealability is DENIED. 3 IT IS SO ORDERED. 4 5 Dated: August 25, 2021 6 ______________________________________ LUCY H. KOH 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27