1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JCONCEPICON HERNANDEZ LOERA, No. 2:18-cv-0853 KJM KJN 12 Petitioner, 13 v. FINDINGS & RECOMMENDATIONS 14 PEOPLE OF THE STATE OF CALIFORNIA, 15 Respondent. 16
17 18 I. Introduction 19 Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of 20 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2015 conviction for oral 21 copulation of a person under fourteen years of age, continuous sexual abuse, and lewd act upon a 22 child. Petitioner was sentenced to sixteen years in state prison. Petitioner claims that there was 23 insufficient evidence to support his conviction for committing a lewd and lascivious act upon a 24 child, and also claims trial counsel was ineffective for failing to object to the trial court’s 25 imposition of a mid-term sentence for the crime of continuous sexual abuse when it relied upon 26 two particular aggravating factors. After careful review of the record, this court concludes that 27 the petition should be denied. 28 //// 1 II. Procedural History 2 On November 3, 2015, a jury found petitioner guilty of oral copulation of a person under 3 the age of fourteen (Cal. Pen. Code, § 288a(c)(1)1), continuous sexual abuse (Cal. Pen. Code, 4 § 288.5(a)), and lewd act upon a child (Cal. Pen. Code, § 288(a)). (LD 9 at 100-02.)2 On January 5 11, 2016, petitioner was sentenced to a total sixteen years in state prison. (LD 9 at 151-52.) 6 Petitioner appealed the conviction to the California Court of Appeal, Third Appellate 7 District. (LD 2-4.) The Court of Appeal affirmed the conviction on July 5, 2017. (LD 1.) 8 Petitioner filed a petition for review in the California Supreme Court (LD 5), which was 9 denied on September 13, 2017 (LD 6). 10 Petitioner filed the instant petition on April 9, 2018. (ECF No. 1.) Respondent filed an 11 answer on July 3, 2018. (ECF No. 13.) Petitioner filed a traverse on August 2, 2018. (ECF No. 12 15.) 13 III. Facts3 14 In its unpublished memorandum and opinion affirming petitioner’s judgment of 15 conviction on appeal, the California Court of Appeal for the Third Appellate District provided the 16 following factual summary: 17 Prosecution Evidence 18 Defendant married Y.L. in December 2006. They lived together with Y.L.’s five year-old son A.L. and her daughter CW01, who was born 19 in August 2000. The couple separated in October 2010. Y.L. had two children with defendant before they separated. While they were 20 separated, defendant would occasionally stay at her home or have the children stay overnight with him. He moved back in with Y.L. in 21 2012. 22
23 1 Renumbered to section 287 effective January 1, 2019.
24 2 “LD” refers to Lodged Document and “ECF” refers to the documents filed electronically on the court’s docket – page numbers references are to those automatically assigned in the CM/ECF 25 system; “RT” refers to the Reporter’s Transcript on Appeal; “CT” refers to the Clerk’s Transcript on Appeal. 26
27 3 The facts are taken from the opinion of the California Court of Appeal for the Third Appellate District in People v. Loera, No. C081300 (July 5, 2017), a copy of which was lodged by 28 respondent as Lodged Document 1. 1 In July 2014, defendant came home late after spending the night drinking with his friends. Y.L. heard him come home, but he did not 2 come to their bedroom. After determining defendant was not in the bathroom, Y.L. peeked into CW01’s room. She turned on the light 3 and saw defendant lying in bed with CW01, who was on her side facing defendant. When the lights went on, CW01 covered her face 4 with her hands, while defendant jumped back from her and onto his back. Y.L. pulled off the blankets. Defendant’s pants were 5 unbuttoned and unzipped, and CW01’s tank-top and bra were pulled up. 6 Defendant sat up. Y.L. asked defendant what was going on and then 7 punched him in the face. She eventually asked CW01 if anything inappropriate happened. When CW01 said no, Y.L. became 8 convinced she misconstrued what she had seen. She and defendant never talked about the matter again. 9 CW01 testified that defendant started sexually abusing her when she 10 was in the fifth grade. The first time he molested her, CW01 went into the bedroom to get a diaper for her youngest sibling. Defendant 11 followed her in, locked the door, pulled down his pants, grabbed her head, and made her perform oral sex on him. It stopped when two of 12 her siblings knocked on the door, causing defendant to stop holding her head. She did not tell anyone because she was afraid defendant 13 would do something to her. She was 11 at the time. 14 Between the first incident of abuse and August 2013, defendant molested her about 50 times. In addition to having her perform oral 15 sex on him, defendant also would touch her breasts underneath her clothing, force her to put her hand on his penis, and kiss her on the 16 lips or neck. He told CW01 that bad things would happen to her mother if she told her. 17 Regarding the July 2014 incident Y.L. saw, CW01 recalled being on 18 top of defendant with his pants unzipped and her shirt pulled up to her chest. Defendant pushed her to the side when Y.L. walked in. 19 Y.L. “flipped out” while CW01 pretended to be sleeping. 20 The last time defendant abused her was in the summer of 2014, between the end of seventh grade and the beginning of eighth grade 21 at her uncle’s trailer in Pollock Pines. CW01 did not know the exact date it happened. She, her siblings, and mother were going to the 22 lake; they stopped by her uncle’s trailer to see if defendant wanted to go with them. Defendant, who had been drinking, was alone when 23 CW01 entered the trailer. CW01 tried to leave the trailer, but defendant pushed her onto the bed and began kissing her. When she 24 got up and started to leave, defendant offered her $20 to stay and help him with the house. CW01 left without responding. 25 Defendant became upset in September 2014 when he discovered 26 about $3,000 of his money was missing. He told Y.L. about it and that he thought one of the children might be involved. CW01 27 admitted taking the money from defendant, in roughly $200 increments each week. She used the money to buy things after school 28 or gave the money to a friend. 1 In October 2014, CW01 wrote a letter describing defendant sexually abusing her and gave it to an adult she trusted at school. Y.L. then 2 agreed to cooperate with the authorities. Defendant was arrested shortly thereafter. 3 The Defense 4 Defendant testified and denied sexually abusing CW01. The July 5 2014 incident happened when he came home after a night of drinking and CW01 asked him for a hug. He decided to sleep with the kids for 6 awhile, so he pulled a blanket over CW01 and him. CW01 stole $3,000 from him starting in June 2014. He confronted his children 7 about the thefts two to three days before his arrest. 8 (People v. Loera, LD 1 at 2-4.) 9 IV. Standards for a Writ of Habeas Corpus 10 An application for a writ of habeas corpus by a person in custody under a judgment of a 11 state court can be granted only for violations of the Constitution or laws of the United States. 28 12 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or 13 application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 14 U.S. 62, 67-68 (1991). 15 Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas 16 corpus relief: 17 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 18 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - 19 (1) resulted in a decision that was contrary to, or involved an 20 unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 21 (2) resulted in a decision that was based on an unreasonable 22 determination of the facts in light of the evidence presented in the State court proceeding. 23 24 28 U.S.C. § 2254(d). 25 For purposes of applying § 2254(d)(1), “clearly established federal law” consists of 26 holdings of the United States Supreme Court at the time of the last reasoned state court decision. 27 Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 132 S. Ct. 28 38, 44-45 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. 1 Taylor, 529 U.S. 362, 412 (2000)). Circuit court precedent “may be persuasive in determining 2 what law is clearly established and whether a state court applied that law unreasonably.” Stanley, 3 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit 4 precedent may not be “used to refine or sharpen a general principle of Supreme Court 5 jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall 6 v. Rodgers, 569 U.S. 58, 64 (2013) (citing Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (per 7 curiam)). Nor may it be used to “determine whether a particular rule of law is so widely accepted 8 among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as 9 correct. Id. Further, where courts of appeals have diverged in their treatment of an issue, it 10 cannot be said that there is “clearly established Federal law” governing that issue. Carey v. 11 Musladin, 549 U.S. 70, 77 (2006). 12 A state court decision is “contrary to” clearly established federal law if it applies a rule 13 contradicting a holding of the Supreme Court or reaches a result different from Supreme Court 14 precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003). 15 Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the 16 writ if the state court identifies the correct governing legal principle from the Supreme Court’s 17 decisions, but unreasonably applies that principle to the facts of the prisoner’s case.4 Lockyer v. 18 Andrade, 538 U.S. 63, 75 (2003); Williams v. Taylor, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 19 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ simply 20 because that court concludes in its independent judgment that the relevant state-court decision 21 applied clearly established federal law erroneously or incorrectly. Rather, that application must 22 also be unreasonable.” Williams v. Taylor, 529 U.S. at 411. See also Schriro v. Landrigan, 550 23 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its 24 ‘independent review of the legal question,’ is left with a ‘“firm conviction”’ that the state court 25 was ‘“erroneous”’”). “A state court’s determination that a claim lacks merit precludes federal 26 4 Under § 2254(d)(2), a state court decision based on a factual determination is not to be 27 overturned on factual grounds unless it is “objectively unreasonable in light of the evidence presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford, 28 384 F.3d 628, 638 (9th Cir. 2004)). 1 habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s 2 decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 3 U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal 4 court, a state prisoner must show that the state court’s ruling on the claim being presented in 5 federal court was so lacking in justification that there was an error well understood and 6 comprehended in existing law beyond any possibility for fair-minded disagreement.” Richter, 7 562 U.S. at 103. 8 If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing 9 court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford, 10 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) 11 (en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of 12 § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by 13 considering de novo the constitutional issues raised.”). 14 The court looks to the last reasoned state court decision as the basis for the state court 15 judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). 16 If the last reasoned state court decision adopts or substantially incorporates the reasoning from a 17 previous state court decision, this court may consider both decisions to ascertain the reasoning of 18 the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a 19 federal claim has been presented to a state court and the state court has denied relief, it may be 20 presumed that the state court adjudicated the claim on the merits in the absence of any indication 21 or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption 22 may be overcome by a showing “there is reason to think some other explanation for the state 23 court’s decision is more likely.” Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 24 (1991)). Similarly, when a state court decision on petitioner’s claims rejects some claims but 25 does not expressly address a federal claim, a federal habeas court must presume, subject to 26 rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289, 27 298 (2013) (citing Richter, 562 U.S. at 98). If a state court fails to adjudicate a component of the 28 petitioner’s federal claim, the component is reviewed de novo in federal court. Wiggins v. Smith, 1 539 U.S. 510, 534 (2003). 2 Where the state court reaches a decision on the merits but provides no reasoning to 3 support its conclusion, a federal habeas court independently reviews the record to determine 4 whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. 5 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo 6 review of the constitutional issue, but rather, the only method by which we can determine whether 7 a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no 8 reasoned decision is available, the habeas petitioner still has the burden of “showing there was no 9 reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. 10 A summary denial is presumed to be a denial on the merits of the petitioner’s claims. 11 Stancle v. Clay, 692 F.3d 948, 957 & n.3 (9th Cir. 2012). While the federal court cannot analyze 12 just what the state court did when it issued a summary denial, the federal court must review the 13 state court record to determine whether there was any “reasonable basis for the state court to deny 14 relief.” Richter, 562 U.S. at 98. This court “must determine what arguments or theories . . . could 15 have supported the state court’s decision; and then it must ask whether it is possible fairminded 16 jurists could disagree that those arguments or theories are inconsistent with the holding in a prior 17 decision of [the Supreme] Court.” Id. at 101. The petitioner bears “the burden to demonstrate 18 that ‘there was no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709 F.3d 19 925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98). 20 When it is clear, however, that a state court has not reached the merits of a petitioner’s 21 claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal 22 habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 23 F.3d 1099, 1109 (9th Cir. 2006). 24 V. Petitioner’s Claims5 25 A. Insufficiency of the Evidence 26 Petitioner claims that there is insufficient evidence to support his conviction for a lewd 27 5 The undersigned elects to follow respondent’s order addressing petitioner’s claims. As pointed 28 out by respondent, that is the order in which the state courts addressed the claims. 1 and lascivious act. (ECF No. 1 at 7-8, 24-27.) Respondent maintains the state court’s 2 determination was reasonable, thus precluding relief in this court. (ECF No. 13 at 16-19.) 3 The last reasoned rejection of petitioner’s first claim is the decision of the California 4 Court of Appeal for the Third Appellate District on petitioner’s direct appeal. The state court 5 addressed this claim as follows: 6 Sufficiency of the Evidence Relating to Lewd and Lascivious Acts 7 Defendant contends there is insufficient evidence that the victim was 8 under the age of 14 to support the lewd and lascivious acts conviction. 9 In determining the sufficiency of the evidence, we ask whether 10 “‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential 11 elements of the crime beyond a reasonable doubt.’” (People v. Hatch (2000) 22 Cal.4th 260, 272; italics omitted.) We resolve neither 12 credibility issues nor evidentiary conflicts; we look for substantial 13 evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “Moreover, unless the testimony is physically impossible or 14 inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 15 1149, 1181.) “‘“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the 16 circumstances might also be reasonably reconciled with a contrary 17 finding does not warrant a reversal of the judgment.’”’ [Citations.]” (People v. Casares (2016) 62 Cal.4th 808, 823-824.) Thus, reversal 18 is not warranted unless there is no hypothesis on which there exists substantial evidence to support the conviction. (People v. Bolin 19 (1998) 18 Cal.4th 297, 331.) 20 The lewd and lascivious count was based on the last time defendant 21 molested CW01. 22 We note that, while the information alleged that this offense took place between May 1, 2014 and June 2014, the prosecutor’s closing 23 argument made clear that the People relied on the last incident of molestation, in CW01’s uncle’s trailer, as the act constituting the 24 offense. Defendant does not claim any error from this variance 25 between the information and the People’s theory at trial. 26 One element of the offense of the lewd and lascivious acts count is that the victim is at the time of the act under the age of 14. (§ 288, 27 subd. (a).) Since CW01 testified that this occurred in the summer of 2014 between seventh and eighth grade, and her 14th birthday was 28 1 in August 2014, defendant contends the evidence was insufficiently specific of the date of the crime to support a finding that it took place 2 before CW01’s 14th birthday. 3 Defendant relies primarily on two cases involving continuous sexual 4 abuse of a child under section 288.5, People v. Valenti (2016) 243 Cal.App.4th 1140 (Valenti), and People v. Mejia (2007) 155 5 Cal.App.4th 86 (Mejia). Under section 288.5, subdivision (a), the prosecution must prove that there were three or more incidents of 6 abuse, that at least three months elapsed between the first and third incidents, and that the victim was under 14. (§ 288.5, subd. (a); 7 Mejia, at p. 94.) 8 In Mejia, the defendant was charged with committing continuous 9 sexual abuse “‘on or between June 1, 2004 and September 17, 2004.’” (Mejia, supra, 155 Cal.App.4th at p. 93.) The evidence 10 showed the victim was first abused some unspecified time in June 2004 and continued every month through September, and that she 11 turned 14 on September 18, 2004. (Id. at pp. 94, 95.) Since “the only 12 reasonable inference permitted by the evidence was that defendant’s abuse began sometime in June and continued to some date in 13 September—but the jury could only speculate that the first incident occurred early enough in June to satisfy the 90-day requirement 14 expiring on September 17, 2004,” there was insufficient evidence to support the conviction. (Id. at p. 95.) 15 Valenti followed a similar pattern. The defendant’s crime was 16 alleged to have taken place “‘[o]n or between January 1, 2012 and 17 July 11, 2012.’” (Valenti, supra, 243 Cal.App.4th at p. 1159.) The victim first visited the defendant at some point in January 2012. 18 (Ibid.) He then had a second visit at the defendant’s home, and a long time after that, a third visit, and a fourth visit a couple of weeks after 19 the third. (Ibid.) “However, it was not until sometime that summer, 20 ‘a couple months’ after his fourth visit,” that the defendant started to molest the victim. (Ibid.) As in Mejia, the court of appeal reversed 21 the section 288.5 conviction because the evidence of when the abuse started was not specific enough to support an inference that it started 22 no later than 90 days before the last day of the last incident, July 11, 2012, the day before the defendant was reported to the police. (Id. at 23 pp. 1159-1160.) 24 During her direct examination, when asked about the incident in her 25 uncle’s trailer, CW01 first testified that she did not know when it happened. Further questioning established that she was in seventh 26 grade at Sierra Ridge School before the summer of 2014, was on vacation from school in summer 2014, started eighth grade in August 27 2014, and defendant was arrested in October of that year. 28 1 The prosecutor then asked CW01: “Okay. So we have like four windows of time, your 7th grade school year at Sierra Ridge when 2 you’re 13, the summer when school ends between the time school ends and when school starts for 8th grade year, and then your 14th 3 birthday, and the time the Defendant is arrested. As you think about 4 those windows of time, does this last event fit into any of those windows in your memory?” CW01 replied, “In my 7th grade summer 5 vacation year.” The prosecutor asked, “Between 7th and 8th grade?” CW01 answered, “Yes.” 6 The prosecutor’s question established a time line starting with 7 CW01’s seventh grade school year, then her summer vacation, 8 followed by her starting the eighth grade, which was followed by her 14th birthday. The jury could reasonably infer that CW01’s answer, 9 that the incident happened during her summer vacation between seventh and eighth grades, establishes that it happened before she 10 started eighth grade and therefore also before her 14th birthday. The time line presented by the prosecutor and CW01’s answer in 11 response to it thus distinguishes Valenti and Mejia, cases in which 12 there was no possible inference the jury could draw that would support the convictions in those cases. Accordingly, we conclude the 13 section 288 conviction is supported by substantial evidence.
14 (LD 1 at 5-8.) 15 1. Applicable Legal Standards 16 The Due Process Clause of the Fourteenth Amendment protects a criminal defendant from 17 conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the 18 crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). Thus, one who 19 alleges that the evidence introduced at trial was insufficient to support the jury’s findings states a 20 cognizable federal habeas claim. Herrera v. Collins, 506 U.S. 390, 401-02 (1993). Nevertheless, 21 the petitioner “faces a heavy burden when challenging the sufficiency of the evidence used to 22 obtain a state conviction on federal due process grounds.” Juan H. v. Allen, 408 F.3d 1262, 1274 23 (9th Cir. 2005). On direct review, a state court must determine whether “any rational trier of fact 24 could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. 25 Virginia, 443 U.S. 307, 319 (1979). The California standard for determining the sufficiency of 26 the evidence to support a conviction has been held by the California Supreme Court to be 27 identical to the federal standard enunciated by the United States Supreme Court in Jackson. See 28 1 People v. Johnson, 26 Cal.3d 557, 576 (1980). Federal habeas relief is available only if the state 2 court determination that the evidence was sufficient to support a conviction was an “objectively 3 unreasonable” application of Jackson. Juan H., 408 F.3d at 1275 n.13. 4 Habeas claims based upon alleged insufficient evidence therefore “face a high bar in 5 federal habeas proceedings because they are subject to two layers of judicial deference.” 6 Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam). As noted by the Supreme Court: 7 First, on direct appeal, “it is the responsibility of the jury−not the court−to decide what conclusions should be drawn from evidence 8 admitted at trial. A reviewing court may set aside the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact 9 could have agreed with the jury.” And second, on habeas review, “a federal court may not overturn a state court decision rejecting a 10 sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do 11 so only if the state court decision was ‘objectively unreasonable.’” 12 13 Id. (citations omitted). 14 The Jackson standard “must be applied with explicit reference to the substantive elements 15 of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16. In performing a 16 Jackson analysis, a jury’s credibility determinations are “entitled to near-total deference.” Bruce 17 v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004). When the factual record supports conflicting 18 inferences, the federal court must presume that the trier of fact resolved the conflicts in favor of 19 the prosecution, and must defer to that resolution. Jackson, 443 U.S. at 326. 20 2. Analysis 21 California Penal Code section 288(a) provides as follows: 22 Except as provided in subdivision (i), a person who willfully and lewdly commits any lewd or lascivious act, including any of the acts 23 constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age 24 of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is 25 guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. 26 27 The sole issue here surrounds the evidence pertaining to the element requiring proof 28 beyond a reasonable doubt that the victim was “under the age of 14 years” at the time of the last 1 incident. The victim was born on August 27, 2000. (1 RT 115.) Hence, she would turn fourteen 2 years old on August 27, 2014. 3 Relevant to this claim, the victim testified that the last time petitioner “did anything like 4 this” to her was at her uncle’s “new place” in Pollock Pines. (1 RT 142.) The victim 5 remembered the events of the day, but not the specific date. (1 RT 142.) To clarify the time 6 period within which the date of the last act occurred, the prosecutor asked the victim a series of 7 questions: 8 [PROSECUTOR]: Do your best to estimate for us using and you've got hallmarks, right? We know that he was [ar]rested last October, a 9 couple months after you turned 14. You turned 14 in August of 2014, the same year that you started 8th grade? 10 A. Yes. 11 Q. So then you have the summer of 2014. And that previous school 12 year you were at Sierra Ridge as a 7th grader, right? 13 A. Can you repeat that? 14 Q. Yeah. I'm just kind of building that framework we built this morning so you can start thinking about when this last event took 15 place. We'll use a couple frames of reference, a couple of things to look at times. 16 You started 8th grade August of 2014, a year ago, at Sierra Ridge - - 17 A. Yes. 18 Q. -- right? Right after you turned 14. And just a couple months after 19 that, the Defendant was arrested? 20 A. Yes. 21 Q. Okay. So kind of have that window of time between the time you started 8th grade in August and the time he was arrested. That's a 22 little window of time. Now, did you have a summer vacation where you were out of school the summer between 7th grade and 8th grade? 23 A. Yes. 24 Q. Okay. And do you remember kind of that window of time? 25 A. Some of it. 26 Q. Okay. So we'll use that as another window. And then we have 27 your 7th grade school year, which would have started when you turned make sure I don't confuse myself. 28 1 Would you have turned 13 as you started 7th grade at Sierra Ridge? 2 A. Yes. 3 Q. Okay. So we have like four windows of time, your 7th grade school year at Sierra Ridge when you're 13, the summer when school 4 ends between the time school ends and when school starts for 8th grade year, and then your 14th birthday, and the time the Defendant 5 is arrested. As you think about those windows of time, does this last event fit into any of those windows in your memory? 6 A. In my 7th grade summer vacation year. 7 Q. Between 7th grade and 8th grade? 8 A. Yes. 9 Q. I'm sorry? 10 A. Yes. 11 Q. Yes. Okay. Remember, speak right into that microphone. Okay? 12 A. Okay. 13 Q. Okay. So it was that summer, and it was at a place that your uncle 14 was going to move into? 15 A. Yes. 16 (1 RT 142-44.) 17 The following passage reveals the victim testified the last incident occurred before she 18 turned fourteen years old because it happened during her “7th grade summer vacation,” when she 19 was thirteen years of age, and before “8th grade” began, both of which occurred before her 20 birthday. In light of this testimony, a rational juror could have concluded beyond a reasonable 21 doubt that the final incident occurred before the victim turned fourteen years old. Jackson, 443 22 U.S. at 319; see also Coleman v. Johnson, 566 U.S. at 651 (court may set aside verdict only if no 23 rational trier of fact would have agreed with jury). 24 There was no other testimony offered on the issue of the victim’s age at the time of the 25 last incident. Here, the jury plainly accepted the victim’s testimony concerning the date range 26 within which the last incident fell to be credible, meaning it believed the incident occurred while 27 the victim was thirteen years of age. And, credibility determinations are to be accorded “near 28 total deference.” Bruce v. Terhune, 376 F.3d at 957; see also People of Territory of Guam v. 1 McGravey, 14 F.3d 1344, 1346-47 (9th Cir. 1994) (upholding conviction for sexual molestation 2 based entirely on uncorroborated testimony of victim). 3 Whether the school year began later than the victim’s birthday would amount to some 4 evidence from which the jury could have inferred the victim was fourteen at the time of the last 5 occurrence, but even conflicting reasonable inferences do not entitle petitioner to relief in this 6 court. Jackson, 443 U.S. at 326 (the federal court must presume that the trier of fact resolved the 7 conflicts in favor of the prosecution, and must defer to that resolution); see also Cavazos v. Smith, 8 565 U.S. 1, 7 (2011) (per curiam) (Jackson “instructs that a reviewing court ‘faced with a record 9 of historical facts that support conflicting inferences must presume—even if it does not 10 affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the 11 prosecution, and must defer to that resolution’”) (quoting Jackson, 443 U.S. at 326). 12 The state court's determination that sufficient evidence existed to support petitioner’s 13 conviction for a violation of California Penal Code section 288(a) was not contrary to, or an 14 unreasonable application of, clearly established Supreme Court authority. 28 U.S.C. § 2254(d). 15 As a result, the undersigned recommends the claim be denied. 16 B. Ineffective Assistance of Counsel/Jury Instruction 17 Petitioner claims that trial counsel was ineffective for failing to object to the trial court’s 18 imposition of a mid-term sentence regarding count two (Cal. Pen. Code, § 288.5 [continuous 19 sexual abuse]) where it relied on two factors that were not supported by substantial evidence. 20 (ECF No. 1 at 5-6, 27-30.) Respondent contends the state court’s rejection of the claim was 21 reasonable, and that petitioner is not entitled to relief. (ECF No. 13 at 19-23.) 22 The last reasoned rejection of petitioner’s claim is the decision of the California Court of 23 Appeal for the Third Appellate District on petitioner’s direct appeal. The state court addressed 24 this claim as follows: 25 Sentencing 26 Defendant contends that the trial court relied on two improper aggravating factors, the victim’s particular vulnerability and 27 defendant’s planning, in imposing the middle term for continuous sexual abuse, and that trial counsel was ineffective for failing to 28 object. His failure to object to the allegedly improper factors at 1 sentencing forfeits the contention on appeal. (People v. Scott (1994) 9 Cal.4th 331, 351; People v. Partida (2005) 37 Cal.4th 428, 434; 2 People v. Brach (2002) 95 Cal.App.4th 571, 577 [“Claims of error relating to sentences ‘which, though otherwise permitted by law, 3 were imposed in a procedurally or factually flawed manner’ are waived on appeal if not first raised in the trial court”; italics 4 omitted].) We will nevertheless address defendant’s challenge because he contends trial counsel’s failure to object amounts to 5 ineffective assistance of counsel. 6 To establish ineffective assistance of counsel, a defendant must show “counsel’s action was, objectively considered, both deficient under 7 prevailing professional norms and prejudicial. [Citation.]” (People v. Seaton (2001) 26 Cal.4th 598, 666.) “[T]he burden is on the 8 defendant to show (1) [defense] counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent 9 advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel’s 10 failings.” (People v. Lewis (1990) 50 Cal.3d 262, 288.) 11 “[T]here is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ [Citation.]” 12 (People v. Lucas (1995) 12 Cal.4th 415, 437.) The defendant bears the burden of establishing an ineffective assistance claim. (Id. at p. 13 436.) Overcoming this “high bar is never an easy task. [Citation.]” (Padilla v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d 284, 14 297].) 15 Defendant claims the trial court improperly relied on CW01’s age in finding she was particularly vulnerable because all of defendant’s 16 crimes, which require the victim be under 14, already take her age into account. (See People v. Dancer (1996) 45 Cal.App.4th 1677, 17 1693-1694 (Dancer), disapproved on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123 [“‘Particular vulnerability,’” 18 may not be used as an aggravating offense where the vulnerability is based solely on age and age is an element of the offense].) He also 19 argues there is insufficient evidence of planning to support the trial court’s finding as to that aggravating factor. In support of this 20 argument, defendant claims there is less evidence of planning here than in other cases upholding the use of the planning aggravating 21 factor. (See People v. Lai (2006) 138 Cal.App.4th 1227, 1259 [defendant convicted of welfare fraud persistently lied on numerous 22 forms in order to receive welfare benefits not entitled to]; People v. Forster (1994) 29 Cal.App.4th 1746, 1758-1759 [defendant 23 convicted of driving while intoxicated went to Mexico for the specific purpose of partying].) We find that both factors were proper. 24 The sentencing court must state the reasons for imposing the term 25 selected. (§ 1170, subd. (b).) In exercising its discretion to select one of the three authorized prison terms, a trial court may consider many 26 enumerated circumstances in aggravation or mitigation. (Rules 4.420(a) & (b), 4.421, & 4.423.) 27 As an aggravating factor, victim vulnerability means “defenseless, 28 unguarded, unprotected, accessible, assailable, one who is 1 susceptible to the defendant’s criminal act.” (People v. Smith (1979) 94 Cal.App.3d 433, 436.) “The obvious purpose of increasing 2 punishment based on victim vulnerability is to deter criminal conduct that seeks to exploit the particularly vulnerable victim.” (People v. 3 Spencer (1996) 51 Cal.App.4th 1208, 1223.) Age alone cannot support a finding of victim vulnerability when the victim’s age is an 4 element of the offense, “[h]owever, ‘particular vulnerability’ is determined in light of the ‘total milieu in which the commission of 5 the crime occurred . . . .’ [Citation.]” (Dancer, supra, 45 Cal.App.4th at p. 1694.) 6 The trial court did not invoke CW01’s age in isolation, as it also cited 7 defendant’s role as her stepfather in finding CW01 particularly vulnerable. This role gave defendant access to and authority over 8 CW01 that rendered her more susceptible to defendant’s molestation. Where, as here, CW01 was almost three years younger than the 9 minimum age for a victim when the molestation started and the trial court relied on other evidence establishing her vulnerability, the trial 10 court’s invocation of her age did not invalidate the vulnerability aggravating factor. 11 It is an aggravating factor when “[t]he manner in which the crime 12 was carried out indicates planning, sophistication, or professionalism.” (Rule 4.421(a)(8).) The trial court has considerable 13 latitude regarding this factor. (People v. Mathews (1980) 102 Cal.App.3d 704, 710.) Defendant carried out the crime repeatedly, 14 around 50 times. He took steps to avoid detection, waiting until CW01’s mother was gone, and to prevent CW01 from reporting him, 15 by threatening harm (“bad things”) to her mother if she said anything. Together, these constitute sufficient evidence of planning and 16 sophistication to support the trial court’s finding. The fact that this evidence differs from that in the cases cited by defendant is of no 17 consequence, as those cases involved different crimes and did not find the evidence of planning insufficient. 18 Since the trial court did not rely on improper aggravating factors, 19 defense counsel did not provide substandard representation in failing to object to them. Defendant’s claim is without merit. 20 (LD 1 at 8-10.) 21 1. Applicable Legal Standards 22 To prevail on a claim of ineffective assistance of counsel, a petitioner must show that his 23 trial counsel’s performance “fell below an objective standard of reasonableness” and that “there is 24 a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding 25 would have been different.” Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). 26 Under the first prong of the Strickland test, a petitioner must show that counsel’s conduct 27 failed to meet an objective standard of reasonableness. Strickland, 466 U.S. at 687. There is “a 28 ‘strong presumption’ that counsel’s representation was within the ‘wide range’ of reasonable 1 professional assistance.” Harrington v. Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 2 689). Petitioner must rebut this presumption by demonstrating that his counsel’s performance 3 was unreasonable under prevailing professional norms and was not the product of “sound trial 4 strategy.” Strickland, 466 U.S. at 688-89. Judicial scrutiny of defense counsel’s performance is 5 “highly deferential,” and thus the court must evaluate counsel’s conduct from her perspective at 6 the time it occurred, without the benefit of hindsight. Id. at 689. “[S]trategic choices made after 7 thorough investigation of law and facts relevant to plausible options are virtually 8 unchallengeable.” Strickland, 466 U.S. at 690. 9 The second prong of the Strickland test requires a petitioner to show that counsel’s 10 conduct prejudiced him. Strickland, 466 U.S. at 691-92. Prejudice is found where “there is a 11 reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding 12 would have been different.” Id. at 694. A reasonable probability is one “sufficient to undermine 13 confidence in the outcome.” Id. at 693. “This does not require a showing that counsel’s actions 14 ‘more likely than not altered the outcome,’ but the difference between Strickland’s prejudice 15 standard and a more-probable-than-not standard is slight and matters ‘only in the rarest case.’” 16 Richter, 562 U.S. at 112 (quoting Strickland, 466 U.S. at 693). “The likelihood of a different 17 result must be substantial, not just conceivable.” Id. 18 2. Analysis 19 At sentencing, defense counsel argued the trial court should sentence petitioner to the low 20 term on count two because such a sentence would result in a period of incarceration of ten years, 21 “which is pretty much hard time anywhere when you're convicted of a crime like this.” (2 RT 22 349.) Ultimately, the trial court sentenced petitioner, in relevant part, as follows: 23 THE COURT: . . . Well, the Court has considered the following sentencing considerations: 24 The defendant does not appear to be an appropriate candidate for 25 probation based upon Rule 4.413(a); statutory provisions prohibit a grant of probation under 1203.668(a)(8) of the Penal Code. 26 Even absent that statutory prohibition, this does not appear to this 27 Court to be a probation case because of the circumstances. 28 As to the circumstances in aggravation under Rule of Court 1 4.421(a)(3), the Court finds the victim was particularly vulnerable. She was a child between the ages of 11 and 14 when the offenses 2 occurred, and was in the care of her stepfather when these offenses occurred. 3 And under Rule 4.421(a) (8), the manner in which the crime was 4 carried out indicated planning. The testimony was that these events occurred when the mother was out of the house, the majority of them, 5 and that also the defendant threatened the victim that bad things would happen if she told her mother about these activities. 6 Under Rule 4.421(a)(11), the defendant took advantage of a position 7 of trust or confidence to commit the crimes. 8 The defendant committed these assaults when he was in his parental capacity. Even in her statement the victim says she looked at him as 9 a father figure. 10 And so the circumstances in mitigation are that under Rule 4.423(b) (1), the defendant has no prior record, or has -- that we have been 11 made aware of, we have no known criminal history. 12 As to the concurrent or consecutive sentences, Rule 4.425(a)(1) the crimes and objective were predominantly independent of each other. 13 While I'll say the circumstances in aggravation and mitigation weigh 14 more toward the aggravated side of this matter, I will select the midterm as to Count 2 of 12 years to be the principal term in this 15 matter. 16 As to Count 1, the Court will impose the midterm on that count as well, run that consecutive, by operation of law that is reduced to two 17 years, and the same for Count 3. 18 And so the total sentence is 16 years at the California Department of Corrections and Rehabilitation. 19 20 (2 RT 350-51.)6 21 To the degree petitioner’s complaint concerns the state court’s interpretation of its 22 sentencing laws, petitioner should not be heard. A federal court is bound by a state court’s 23 finding in that regard. See Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009) (“we have 24 6 California Rules of Court, Rule 4.421(a) provides, in pertinent part: 25 Factors relating to the crime, whether or not charged or chargeable 26 as enhancements include that: … (3) The victim was particularly vulnerable; … (8) The manner in which the crime was carried out 27 indicates planning, sophistication, or professionalism; … (11) The defendant took advantage of a position of trust or confidence to 28 commit the offense. 1 repeatedly held that it is not the province of a federal habeas court to reexamine state-court 2 determinations on state law questions”); Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (same). 3 Notably too, the record supports the trial court’s factual references as applied to the aggravating 4 factors it selected. (See, e.g., 1 RT 45-46, 54-57, 67, 69-70, 83, 98, 113-14, 119, 123-27, 130, 5 132-33, 137-39, 142-44, 146.) 6 In any event, even assuming defense counsel performed deficiently for failing to object to 7 the trial court’s use of the victim’s vulnerability and petitioner’s planning as factors in 8 aggravation, petitioner cannot show prejudice.7 The trial court also relied upon the fact that, as 9 the victim’s stepfather, petitioner took advantage of a position of trust or confidence, noting the 10 victim was in his care when the crimes occurred. The victim called petitioner “Dad.” And, there 11 was simply nothing inappropriate about the trial court’s findings as they relate to the other two 12 aggravating factors; counsel’s objection would not have required the trial court to ignore the 13 victim’s age and vulnerability nor the evidence of planning involved. Hence, the likelihood of the 14 trial court electing to impose a low term on this count, while arguably conceivable, is not 15 substantial. Richter, 562 U.S. at 112. 16 In sum, the state court’s determination of petitioner’s claim was not unreasonable, nor was 17 it contrary to Supreme Court precedent. 28 U.S.C. § 2254(d). As a result, petitioner is not 18 entitled to habeas relief and the claim should be denied. 19 VI. Conclusion 20 Accordingly, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of 21 habeas corpus be denied. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 24 after being served with these findings and recommendations, any party may file written 25 objections with the court and serve a copy on all parties. Such a document should be captioned 26
27 7 Strickland, 466 U.S. at 697 (“a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the [petitioner] as a result of the alleged 28 deficiencies”). 1 | “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, 2 | he shall also address whether a certificate of appealability should issue and, if so, why and as to 3 | which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the 4 | applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 5 | § 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after 6 | service of the objections. The parties are advised that failure to file objections within the 7 | specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 8 | F.2d 1153, 1156 (9th Cir. 1991). 9 | Dated: February 19, 2020 0 Fesll Arn 11 KENDALL J. NE Loer0853.157 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20