(HC) Mairena v. Jones

• Court: District Court, E.D. California
• Decided: March 13, 2025
• Docket: 2:23-cv-00554
• Status: Unknown

Opinion

1 2 3

4 5

6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAIRO VELASQUEZ MAIRENA, No. 2:23-cv-00554-DAD-CSK 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 GENA JONES, 15 Respondent. 16

17 Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2020 conviction for sexual 19 intercourse with a child 10 years or younger (Cal. Penal Code § 288.7(a)) and two counts of 20 committing lewd acts upon a child under the age of 14 (Cal. Penal Code § 288(a)). Petitioner is 21 serving a sentence of 31 years to life. Petitioner raises the following claims in his petition: 22 (1) improper admission of expert opinion of pediatrician; (2) improper admission of Child Sexual 23 Abuse Accommodation Syndrome (CSAAS) testimony; (3) prosecutorial misconduct in closing 24 argument; (4) ineffective assistance of counsel for failing to object to prosecutor’s argument; and 25 (5) erroneous jury instruction. After careful review of the record, this Court recommends that the 26 petition be denied. 27 / / / 28 1 I. PROCEDURAL BACKGROUND 2 A. State Court History 3 On October 13, 2020, after a trial in the San Joaquin County Superior Court, petitioner 4 was convicted of one count of sexual intercourse with a child 10 years or younger and two counts 5 of committing lewd acts upon a child under the age of 14. People v. Mairena, Super. Ct. No. 6 LOD-CR-FE-2018-14043. (ECF No. 9-1 at 485-488.) Petitioner was sentenced on February 1, 7 2021, to a state prison term of 31 years to life. (Id.) 8 Petitioner appealed his conviction to the California Court of Appeal. (ECF No. 9-3.) 9 Petitioner raised the following issues in his opening brief on appeal: 1) improper admission of 10 CSAAS testimony; 2) erroneous jury instruction; 3) improper admission of expert opinion of 11 pediatrician; 4) prosecutorial misconduct in closing argument; and 5) ineffective assistance of 12 counsel for failing to object to prosecutor’s argument. (Id.) On September 22, 2022, the 13 California Court of Appeal affirmed the judgment in a reasoned opinion. (ECF No. 9-6.) 14 Petitioner filed a petition for review in the California Supreme Court, raising the same 15 claims as in his opening brief. (ECF No. 9-7.) On November 30, 2022, the California Supreme 16 Court denied the petition for review without comment or citation. (Id.) 17 B. The Federal Petition 18 The federal petition was filed on March 23, 2023. (ECF No. 1.) On May 30, 2023, 19 respondent filed an answer. (ECF No. 10.) Petitioner did not file a reply. 20 II. FACTS 21 In its unpublished memorandum and opinion affirming petitioner’s judgment of 22 conviction on appeal, the California Court of Appeal provided the following factual summary1: 23 Defendant was in a relationship with the victim’s (D.) aunt Candy. Defendant and Candy had several children together and lived in the 24 same house. D., who referred to defendant as her uncle, often spent time at defendant’s house while her mother worked. When D. was 25 three or four years old, defendant began to sexually abuse her. D. testified that she was 12 years old at the time of trial. 26

27 1 The facts recited by the state appellate court are presumed to be correct where, as here, the petitioner has not rebutted the facts with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); 28 Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009). 1 FN 2. As defendant notes, D. also testified as to her birthday, which, if correct, would have made her 13 years old at the 2 time of trial. This discrepancy is irrelevant for the issues on appeal. 3 The first incident, which was charged in count 1, occurred when D. 4 was three or four years old. 5 FN 3. Count 4 was charged as a different offense based on the same conduct as that charged in count 1. 6 Defendant laid D. down on an air mattress and got on top of her. He 7 kissed her and rubbed her chest and vagina. He also licked her vagina. Defendant then inserted his penis inside D.’s vagina while 8 continuing to kiss her. He told D. that he wanted to put his penis all the way inside her vagina, but she cried because of the pain. 9 Defendant’s penis became wet, and he told D. that if she told her dad what happened, her parents and she could go to jail, or her parents 10 would hit her. D. tried to resist or push him away. D’s cousin J. knocked on the door, but she could not get in because it was locked. 11 Eventually D. was able to leave with J. 12 In another incident, charged in count 3, D. was playing a game called “zombies”—similar to hide and seek—with her cousins. While D. 13 hid during the game, defendant touched her vagina over her clothes and her chest under her clothes. D. testified that J. came in the room 14 and saw defendant touching her; J. asked D. why defendant was touching her, and they went outside. 15 D. revealed the abuse to a teacher in fifth grade, and child protective 16 services (CPS) and the police were both notified. D. was interviewed by a CPS social worker and underwent a recorded forensic interview 17 at the Children’s Advocacy Center. A video of that interview was played for the jury, and a transcript of the interview distributed to the 18 jury appears in the record on appeal. Dr. Mamta Jain, a pediatrician at the San Joaquin General Hospital and the Children’s Advocacy 19 Center, performed a nonacute physical examination on D. and made no physical findings. 20 In her forensic interview and at trial, D. testified to multiple other 21 instances of abuse. She also asserted that she saw defendant molest J. on multiple occasions. 22 J. testified that D. told her she had gone into a room with defendant 23 and came out crying, but D. asked J. not to tell anyone because she did not want to get into trouble. D. did not tell J. what had happened, 24 but she mentioned that defendant had touched her. D. was scared to tell J. 25 At a different time, during a game of “zombies,” J. saw both of 26 defendant’s hands “slide down” to D.’s chest, but she clarified that his hands did not go down below her stomach. She recalled that D.’s 27 facial expression indicated that she was “shocked about it.” J. testified as to another instance in which defendant, defendant’s 28 daughter, and D. went in a room and defendant closed the door. After 1 about 30 minutes, D. came out crying. D. approached J. and asked her if she wanted to leave and they went to a nearby family member’s 2 house. On the way, J. asked D. what happened, but D. did not want to say. 3 J. underwent an interview regarding D.’s allegations. J. testified that 4 she remembered the interview, and related some of the details of the interview on direct and cross-examination, but the interview was not 5 played for the jury. 6 On cross-examination, J. agreed with defense counsel that defendant had never touched her inappropriately. 7 A jury found defendant guilty of sexual intercourse with a child 10 8 years of age or younger (§ 288.7, subd. (a); count 1) and two counts of committing lewd or lascivious acts upon a child under the age of 9 14 (§ 288, subd. (a); counts 3 & 4). The jury could not reach a verdict as to count 2, a second count charging a violation of section 288.7, 10 subdivision (a), and that count was dismissed. The trial court sentenced defendant to an aggregate term of 31 years to life in prison. 11 People v. Mairena, Super. Ct. No. LOD-CR-FE-2018-14043 (Sept. 22, 2022) (ECF No. 9-6). 12 III. STANDARDS FOR A WRIT OF HABEAS CORPUS UNDER ANTITERRORISM 13 AND EFFECTIVE DEATH PENALTH ACT (AEDPA) 14 An application for a writ of habeas corpus by a person in custody under a judgment of a 15 state court can be granted only for violations of the Constitution or laws or treaties of the United 16 States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation 17 or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 18 U.S. 62, 67-68 (1991). 19 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus 20 relief: 21 An application for a writ of habeas corpus on behalf of a person in 22 custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State 23 court proceedings unless the adjudication of the claim - 24 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal 25 law, as determined by the Supreme Court of the United States; or 26 (2) resulted in a decision that was based on an unreasonable 27 determination of the facts in light of the evidence presented in the State court proceeding. 28 1 28 U.S.C. § 2254(d). 2 For purposes of applying § 2254(d)(1), “clearly established Federal law” consists of 3 holdings of the Supreme Court at the time of the last reasoned state court decision. Thompson v. 4 Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 565 U.S. 34, 39-40 5 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 6 362, 412 (2000)). Circuit court precedent “may be persuasive in determining what law is clearly 7 established and whether a state court applied that law unreasonably.” Stanley, 633 F.3d at 859 8 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not 9 be “used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific 10 legal rule that th[e] [Supreme] Court has not announced.” Marshall v. Rodgers, 569 U.S. 58, 64 11 (2013) (citing Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (per curiam)). Nor may it be used to 12 “determine whether a particular rule of law is so widely accepted among the Federal Circuits that 13 it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id. Further, where courts 14 of appeals have diverged in their treatment of an issue, there is no “clearly established federal 15 law” governing that issue. See Carey v. Musladin, 549 U.S. 70, 77 (2006). 16 A state court decision is “contrary to” clearly established federal law if it applies a rule 17 contradicting a holding of the Supreme Court or reaches a result different from Supreme Court 18 precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003). 19 Under the “unreasonable application” clause of § 2254(d)(1), “a federal habeas court may grant 20 the writ if the state court identifies the correct governing legal principle from [the Supreme 21 Court’s] decisions, but unreasonably applies that principle to the facts of the prisoner’s case.”2 22 Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (quoting Williams, 529 U.S. at 413); see also Chia v. 23 Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, “a federal habeas court may not issue 24 the writ simply because that court concludes in its independent judgment that the relevant state- 25 court decision applied clearly established federal law erroneously or incorrectly. Rather, that 26 2 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 application must also be unreasonable.” Williams, 529 U.S. at 411; see also Schriro v. Landrigan, 2 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (“It is not enough that a federal habeas court, 3 in its independent review of the legal question, is left with a firm conviction that the state court 4 was erroneous”) (internal quotations and citation omitted). “A state court’s determination that a 5 claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on 6 the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) 7 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for 8 obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s 9 ruling on the claim being presented in federal court was so lacking in justification that there was 10 an error well understood and comprehended in existing law beyond any possibility for fair- 11 minded disagreement.” Id. at 103. 12 If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing 13 court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford, 527 14 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en 15 banc) (“[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) 16 error and that, if there is such error, we must decide the habeas petition by considering de novo 17 the constitutional issues raised.”). 18 The court looks to the last reasoned state court decision as the basis for the state court 19 judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If 20 the last reasoned state court decision adopts or substantially incorporates the reasoning from a 21 previous state court decision, this court may consider both decisions to ascertain the reasoning of 22 the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a 23 federal claim has been presented to a state court and the state court has denied relief, it may be 24 presumed that the state court adjudicated the claim on the merits in the absence of any indication 25 or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption may 26 be overcome by a showing “there is reason to think some other explanation for the state court’s 27 decision is more likely.” Id. at 99-100. Similarly, when a state court decision on petitioner’s 28 claims rejects some claims but does not expressly address a federal claim, a federal habeas court 1 must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. 2 Williams, 568 U.S. 289, 298-301 (2013) (citing Richter, 562 U.S. at 98). If a state court fails to 3 adjudicate a component of the petitioner’s federal claim, the component is reviewed de novo in 4 federal court. See, e.g., Wiggins v. Smith, 539 U.S. 510, 534 (2003). 5 Where the state court reaches a decision on the merits but provides no reasoning to 6 support its conclusion, a federal habeas court independently reviews the record to determine 7 whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. 8 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo 9 review of the constitutional issue, but rather, the only method by which we can determine whether 10 a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no 11 reasoned decision is available, the habeas petitioner has the burden of “showing there was no 12 reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. 13 A summary denial is presumed to be a denial on the merits of the petitioner’s claims. 14 Stancle v. Clay, 692 F.3d 948, 957 & n.3 (9th Cir. 2012). While the federal court cannot analyze 15 just what the state court did when it issued a summary denial, the federal court reviews the state 16 court record to “determine what arguments or theories . . . could have supported the state court’s 17 decision; and then it must ask whether it is possible fairminded jurists could disagree that those 18 arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] 19 Court.” Richter, 562 U.S. at 101. It remains the petitioner’s burden to demonstrate that ‘there was 20 no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709 F.3d 925, 939 (9th 21 Cir. 2013) (quoting Richter, 562 U.S. at 98). 22 When it is clear, however, that a state court has not reached the merits of a petitioner’s 23 claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal 24 habeas court must review the claim de novo. Stanley, 633 F.3d at 860 (citing Reynoso v. 25 Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006)). 26 IV. DISCUSSION 27 A. Claim One: Expert Testimony on Delayed Disclosure 28 Petitioner claims that the trial court erroneously admitted the expert opinion of a 1 pediatrician, Dr. Mamta Jain, as to why many sexually abused children delay disclosing the 2 abuse. 3 At trial, the prosecutor asked Dr. Jain: “Based on your training and experience working as 4 a pediatrician, and specifically for the treatment of abused children, . . . what’s your 5 understanding of the reasons for delayed disclosures?” (ECF No. 9-2 at 221.) 6 After petitioner’s attorney objected and was overruled, Dr. Jain answered: “Lots of 7 times[,] it’s they’re groomed.” (Id.) 8 Petitioner’s attorney objected again, arguing: “She’s not a psychologist.” (Id.) 9 The court responded that Dr. Jain was “the chair of pediatrics and the head of the Child 10 Advocacy Center.” (Id.) 11 On habeas review, petitioner argues that the admission of Dr. Jain’s statement about 12 “grooming” violates his rights to a fair trial and due process “because the prosecution failed to 13 present any foundation that Dr. Jain, an expert pediatrician, was qualified to render such an 14 opinion” in violation of state evidentiary rules. (ECF No. 1 at 21.) 15 In the last reasoned state court decision addressing this claim, the California Court of 16 Appeal denied this claim for the following reasons: 17 Defendant contends the trial court erred by admitting a pediatrician’s expert opinion on the reasons for an abuse victim’s delayed 18 disclosure. He contends the expert’s opinion violated his right to a fair trial and to due process because the prosecution failed to present 19 sufficient foundation that the expert was qualified to render such an opinion. We disagree. 20 A. Background 21 The People called Dr. Mamta Jain, a pediatrician with 20 years of 22 experience, chair of the department of pediatrics at San Joaquin General Hospital, and a medical doctor for child advocacy at the 23 Mary Graham Children’s Shelter in French Camp. Dr. Jain provided medical care to children at the Children’s Shelter, and performed 24 physical examinations of children suspected of having been physically or sexually abused. She typically performed “nonacute” 25 medical exams of abuse victims who reported the sexual abuse at least 72 hours after it occurred; the exams were intended to check for 26 trauma or scarring associated with chronic abuse, sexually transmitted infections, and pregnancy. The exams also included a 27 behavioral assessment intended to connect the child to appropriate resources related to mental health. 28 1 In response to the prosecutor’s question as to the purpose of the nonacute physical exam, Dr. Jain volunteered that most of the 2 victims she treated disclose more than 72 hours after the abuse because they are pregnant or scared. Defendant objected to that 3 testimony as outside the scope of the witness’s expertise. The prosecutor offered to establish additional foundation, and asked: 4 “Based on your training and expertise working as a pediatrician, and specifically for the treatment of abused children, what are your 5 what’s your understanding of the reasons for delayed disclosures?” After the court overruled defendant’s objection on the basis of a lack 6 of foundation, Dr. Jain responded: “Lot of times it’s they’re groomed.” Defendant objected on the basis that Dr. Jain is not a 7 psychologist, but the court stated, “she’s the chair of pediatrics and the head of the Child Advocacy Center.” Without ruling on the 8 objection, the court invited the prosecutor to “lay a little more foundation.” Instead, the prosecutor shifted the focus of her 9 questioning back to Dr. Jain’s physical examinations. Before she did so, the prosecutor asked for clarification as to what part of the 10 testimony was subject to a request to strike; the court replied that it was not striking the testimony. 11 Dr. Jain later testified that her behavioral health assessment includes 12 asking the child age-appropriate questions about his or her medical history, hobbies, and school, but that, by the time she interviews the 13 child, the child has already undergone a forensic interview and she is aware of the content of that interview. If the child was “opening up,” 14 she would confirm some of the disclosures made during the forensic interview, and ask clarifying questions if necessary. 15 B. Legal Background 16 California law permits a person with special knowledge, skill, 17 experience, training, or education in a particular field to qualify as an expert witness and to give testimony in the form of an opinion. (Evid. 18 Code, §§ 720, 801; People v. Gardeley (1996) 14 Cal.4th 605, 617, disapproved of on other grounds in People v. Sanchez (2016) 63 19 Cal.4th 665, 686, fn. 13.) An expert’s opinion must be “[r]elated to a subject that is sufficiently beyond common experience that the 20 opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) “Against the objection of a party, such special 21 knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.” (Id., § 720, subd. (a).) 22 “In considering whether a person qualifies as an expert, the field of expertise must be carefully distinguished and limited.” (People v. 23 King (1968) 266 Cal.App.2d 437, 445.) 24 “The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether 25 expert testimony meets the standard for admissibility is subject to review for abuse of discretion.” (People v. McDowell (2012) 54 26 Cal.4th 395, 426.) 27 C. Analysis 28 We find no abuse of discretion in the trial court’s decision to not 1 strike Dr. Jain’s testimony that child sexual abuse victims often delay disclosure because they are groomed. Dr. Jain was the chair of a 2 pediatrics department and specialized in examining children who had suffered sexual abuse but delayed reporting it. She testified that part 3 of her exam includes an assessment of the child’s mental health in order to connect the child to appropriate mental health treatment 4 resources. Dr. Jain’s testimony was specifically based on and limited to her observations, training, and experience in examining sexual 5 abuse victims. Further, as we discussed ante, the reasons for a child sexual abuse victim’s delayed reporting is sufficiently beyond the 6 common experience of the jury to require explanation by an expert witness. 7 Additionally, any error in admitting Dr. Jain’s testimony was clearly 8 harmless. Erroneous admission of expert testimony warrants reversal of a judgment only if it is reasonably probable that a result more 9 favorable to defendant would have been reached absent the error. (Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b); People v. 10 Pearson (2013) 56 Cal.4th 393, 446; People v. Watson (1956) 46 Cal.2d 818, 836.) Dr. Jain offered a very brief comment that many 11 child sexual abuse victims delay reporting because they are groomed, but she did not testify that D. had been groomed or offer any other 12 reason why D. delayed disclosure. Instead, Dr. Jain’s testimony primarily concerned the physical examination she conducted on D. 13 Moreover, after Dr. Jain’s testimony, Dr. Urquiza testified extensively about the reasons why sexual abuse victims delay 14 disclosing their abuse; therefore, it is extremely unlikely that Dr. Jain’s testimony had any effect on the outcome of the trial. 15 16 (ECF No. 9-6 at 8-10.) 17 The admission of evidence does not provide a basis for habeas relief unless it rendered the 18 trial fundamentally unfair in violation of due process. Estelle, 502 U.S. at 72. “Under AEDPA, 19 even clearly erroneous admissions of evidence that render a trial fundamentally unfair may not 20 permit the grant of federal habeas relief if not forbidden by ‘clearly established Federal law,’ as 21 laid out by the Supreme Court.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) 22 (quoting 28 U.S.C. § 2254(d)). 23 The Supreme Court “has not yet made a clear ruling that admission of irrelevant or overtly 24 prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ.” 25 Holley, 568 F3d. at 1101; see also Greel v. Martel, 472 F. App’x 503, 504 (9th Cir. 2012) (“There 26 is ... no clearly established federal law that admitting prejudicial evidence violates due process.”). 27 Moreover, the Supreme Court “has never held that the admission of expert testimony on an 28 ultimate issue to be resolved by the trier of fact violates the Due Process Clause.” Duvardo v. 1 Giurbino, 410 Fed. Appx. 69, *1 (9th Cir. 2011) (citing Moses v. Payne, 555 F.3d 742, 761-62 2 (9th Cir. 2009) (trial court’s decision to admit expert testimony “was not contrary to or an 3 unreasonable application of Supreme Court precedent”)). 4 Here, petitioner argues that the trial court admitted Dr. Jain’s statement about “grooming” 5 without sufficient foundation, in violation of the California Evidence Code. However, the last 6 reasoned state court opinion found that no state law violation occurred, and “a state court’s 7 interpretation of state law . . . binds a federal court sitting in habeas.” Bradshaw v. Richey, 546 8 U.S. 74, 76 (2005). Moreover, any error of state law would be “largely beside the point,” as that 9 is not the standard for federal habeas relief. Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th 10 Cir. 1991). 11 Nor was the state court’s decision contrary to, or an unreasonable application of, clearly 12 established Supreme Court authority. Under the cases set forth above, there is no colorable 13 argument that the admission of Dr. Jain’s statement violated “clearly established federal law” by 14 the Supreme Court. Accordingly, petitioner’s claim challenging admission of Dr. Jain’s statement 15 as unconstitutional should be denied. 16 B. Claim Two: CSAAS Testimony 17 Petitioner argues that the trial court erred in allowing a pediatric psychologist, Dr. 18 Anthony Urquiza, to testify about Child Sexual Abuse Accommodation Syndrome (CSAAS) as 19 part of the prosecutor’s case. (See ECF No. 9-2 at 326-346.) Petitioner asserts that the CSAAS 20 evidence was so “irrelevant and prejudicial” that it rendered his trial fundamentally unfair. (ECF 21 No. 1 at 22.) 22 After describing his qualifications, Dr. Urquiza testified about the five elements of 23 CSAAS: secrecy, helplessness, “entrapment and accommodation,” “delayed and unconvincing 24 disclosure,” and recantation of the allegation. (Id. at 327.) He testified that he had no factual 25 knowledge of the instant case and had not reviewed any materials from it, but was testifying 26 about child abuse victims in general. (Id. at 325-26.) The trial judge advised the jury that Dr. 27 Urquiza’s testimony was “offered and may be considered by you only for the purpose of 28 understanding and explaining the behavior of the alleged victim in this case. And not as proof that 1 sexual abuse occurred as to the alleged victim [D.].” (Id. at 317.) The jury was also given a 2 written jury instruction, CALCRIM No. 1193, stating as follows: 3 You have heard testimony from Dr. Urquiza regarding [CSAAS]. 4 Dr. Urquiza’s testimony about [CSAAS] is not evidence that the defendant committed any of the crimes charged against him. 5 You may consider this evidence only in deciding whether [D.’s] 6 conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony. 7 8 (ECF No. 9-1 at 318.) 9 In the last reasoned state court decision addressing this claim, the California Court of 10 Appeal denied this claim for the following reasons: 11 Defendant contends the trial court prejudicially erred by admitting expert testimony on CSAAS, which explains “common stress 12 reactions of children who have been sexually molested ..., which also may include the child’s failure to report, or delay in reporting, the 13 abuse.” (People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin).) We disagree. 14 A. Procedural Background 15 Before trial, the People moved to allow psychologist Anthony 16 Urquiza, Ph.D., to testify regarding CSAAS. The defense objected on due process grounds, and later on foundation grounds. The 17 defense also requested a limiting instruction. The trial court admitted the evidence for limited purposes and agreed to provide a pinpoint 18 instruction. 19 Dr. Urquiza was a psychologist, a professor in the department of pediatrics at University of California Davis Medical Center, and the 20 director of a child abuse treatment center. He had been a therapist for child sexual abuse victims for nearly 30 years, trained medical 21 students and psychiatry fellows on how to conduct therapy with child sexual abuse victims, stayed current on literature on child sexual 22 abuse, and published his own clinical writing and research on the subject. He had testified an estimated “easily, 600, 750 times” as an 23 expert on child sexual abuse. Dr. Urquiza did not review any of the materials from this case or interview D. 24 Dr. Urquiza testified that CSAAS is not a diagnosis, but rather is used 25 to educate people about the experience of being sexually abused in order to explain the potentially counterintuitive behaviors of a child 26 who has been sexually abused and to dispel misperceptions, misunderstandings, or myths that therapists may have about child 27 victims of sexual abuse. The syndrome involves five concepts: secrecy, helplessness, entrapment and accommodation, delayed and 28 1 unconvincing disclosure, and recantation or retraction of the allegation. 2 Dr. Urquiza testified that a very small percentage of child sexual 3 abuse victims disclose the abuse soon after the abuse occurs. Rather, most victims do not disclose the abuse until months or years after the 4 abuse. Dr. Urquiza referenced a study that found approximately three-quarters of child sexual abuse victims do not disclose the abuse 5 less than a year after the first instance. Most child victims do not disclose the abuse right away because they are afraid of 6 consequences or of not being believed, or because they are ashamed. 7 B. Expert Testimony Regarding CSAAS 8 FN 4. The Attorney General contends defendant failed to object to the evidence on several of the bases he raises on 9 appeal. We do not address forfeiture because we reach the merits of defendant’s claims. 10 Numerous courts have found expert testimony concerning CSAAS 11 properly admitted in sexual abuse cases. (See, e.g., In re S.C. (2006) 138 Cal.App.4th 396, 418 [collecting cases]; see also McAlpin, 12 supra, 53 Cal.3d at pp. 1300-1301.) Our Supreme Court has explained that “expert testimony on the common reactions of child 13 molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to 14 rehabilitate such witness’s credibility when the defendant suggests that the child’s conduct after the incident — e.g., a delay in reporting 15 — is inconsistent with his or her testimony claiming molestation. [Citations.] ‘Such expert testimony is needed to disabuse jurors of 16 commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children’s seemingly 17 self-impeaching behavior.’ ” (McAlpin, at pp. 1300-1301, fn. omitted; see People v. Patino (1994) 26 Cal.App.4th 1737, 1744- 18 1745 [where the victim’s credibility is placed at issue due to seemingly counterintuitive behavior, including a delay in reporting 19 molestation, CSAAS evidence is pertinent and admissible to rehabilitate the victim’s credibility by showing that his or her 20 reactions are not inconsistent with abuse].) 21 Here, D.’s credibility was the central issue at trial. Defense counsel stated his position succinctly in closing: “[A]ll the charges boil down 22 to the exact same issue. Can [D.] provide proof beyond any reasonable doubt in this case?” D. testified there was a two-year gap 23 between the last time defendant abused her and when she reported it, and she testified that she was afraid to tell anyone about what 24 happened to her and that defendant told her that her dad would go to jail if she said anything. The defense repeatedly argued that D. had 25 fabricated all of the accusations in this case and was not credible. On this record, the prosecution was entitled to present CSAAS evidence, 26 which was relevant and admissible as to D.’s credibility. We reject defendant’s claim that jurors no longer harbor confusion or 27 misconceptions about how children react to sexual abuse. We also decline to overturn California’s long-standing rule allowing CSAAS 28 evidence where, as here, the victim’s credibility is placed at issue due 1 to counterintuitive behavior. We are bound to follow our Supreme Court’s decision permitting the admission of CSAAS evidence for 2 the limited purpose it was admitted here. (McAlpin, supra, 53 Cal.3d at pp. 1300-1301; Auto Equity Sales, Inc. v. Superior Court (1962) 3 57 Cal.2d 450, 455.) For that reason, defendant’s reliance on out-of- state cases that find CSAAS evidence inadmissible is misplaced. 4 We also reject defendant’s claim that CSAAS evidence is 5 inadmissible because it fails to satisfy the legal requirements for the admissibility of new scientific methodologies under People v. Kelly 6 (1976) 17 Cal.3d 24 and Frye v. United States (D.C. Cir. 1923) 293 F. 1013 (Kelly/Frye rule). The Kelly/Frye rule does not apply where, 7 as here, the CSAAS testimony is admitted “ ‘for the limited purpose of disabusing [the] jury of misconceptions it might hold about how a 8 child reacts to a molestation.’ ” (People v. Wells (2004) 118 Cal.App.4th 179, 188.) When introduced for that purpose, and when, 9 as here, the evidence is limited to the expert’s own clinical experience and familiarity with relevant professional literature, the 10 CSAAS evidence does not implicate Kelly/Frye principles. (People v. Harlan (1990) 222 Cal.App.3d 439, 448-449.) 11 Finally, defendant claims Dr. Urquiza’s testimony that 12 approximately 75 percent of the victims in a study by his colleague failed to tell anyone about the abuse within the 12 months following 13 the first instance of abuse was “highly improper.” He contends this statistic invaded the jury’s role as the arbiter of credibility, relying 14 on People v. Julian (2019) 34 Cal.App.5th 878, at pages 886 to 887, People v. Wilson (2019) 33 Cal.App.5th 559, at pages 570 to 571, 15 and multiple out-of-state cases. But these cases are inapposite. 16 In Julian, Dr. Urquiza testified at length about the low percentage of false sexual abuse allegations made by children. (People v. Julian, 17 supra, 34 Cal.App.5th at pp. 883, 884, 885.) The court concluded such statistical testimony improperly suggested that the victim was 18 telling the truth, and, consequently, that the defendant was guilty. (Id. at pp. 886-887.) In Wilson, Dr. Urquiza again discussed multiple 19 studies concluding that false sexual abuse allegations occurred very rarely. (People v. Wilson, supra, 33 Cal.App.5th at p. 568.) Here, 20 unlike these cases, Dr. Urquiza did not testify that false sexual abuse allegations rarely occur, but rather that most sexual abuse victims 21 failed to tell someone about the abuse within 12 months of its initiation. That testimony is well within the purpose of CSAAS 22 evidence, which is to explain typical behaviors of sexually abused children, including delayed reporting. 23 24 (ECF No. 9-6 at 4-6.) 25 As noted above, in the habeas context, there is no clearly established federal law that 26 admitting irrelevant or prejudicial evidence violates due process. Specifically, “[t]here is no 27 ‘clearly established federal law’ that the admission of CSAAS evidence in a child molestation 28 case violates the due process clause.” Otero v. Diaz, 2020 WL 7406517, *10 (E.D. Cal. Dec. 17, 1 2020). Thus, the trial court’s admission of Dr. Urquiza’s testimony was not contrary to, or an 2 unreasonable application of, clearly established Supreme Court authority. 3 Even putting aside the issue of clearly established federal law, petitioner has not shown 4 that the admission of the CSAAS testimony rendered his trial fundamentally unfair. The Ninth 5 Circuit has upheld the use of CSAAS evidence in child abuse cases against due process 6 challenges “when the testimony concerns general characteristics of victims and is not used to 7 opine that a specific child is telling the truth.” Harlow v. People of State of California, 2021 WL 8 1388266, *17 (E.D. Cal. April 13, 2021) (quoting Brodit v. Cambra, 350 F.3d 985, 991 (9th Cir. 9 2003)). In Harlow, which also concerned CSAAS testimony by Dr. Urquiza,

10 the trial court instructed the jury Dr. Urquiza’s testimony about 11 CSAAS was not evidence that petitioner committed any of the charged crimes, and to consider Dr. Urquiza’s testimony only for the 12 purpose of evaluating the minor’s credibility and in deciding whether the minor's conduct was not inconsistent with the conduct of 13 someone who had been molested. 14 Id. “Thus,” the court in Harlow found, “Dr. Urquiza’s testimony complied with the limits set forth 15 by the Ninth Circuit in Brodit[.]” Id. (citing 350 F.3d at 991). Similarly, here, Dr. Urquiza’s 16 testimony was admitted for the limited purpose of evaluating D.’s credibility and complied with 17 the due process protections set forth in Brodit. Petitioner’s claim challenging admission of Dr. 18 Urquiza’s testimony as unconstitutional should be denied. 19 C. Claim 3: Prosecutorial Misconduct 20 Petitioner argues that the prosecutor committed misconduct in her closing argument, 21 violating his rights to due process and a fair trial under the Sixth and Fourteenth Amendments. 22 (ECF No. 1 at 27.) He asserts that the prosecutor “used her personal knowledge to assure the jury 23 that her case was stronger than the evidence suggested” by implying that petitioner tried to get J. 24 to change her story.3 (ECF No. 1 at 27-28.) 25 In her closing argument, the prosecutor referred to a letter petitioner wrote to a family 26 3 Petitioner also argues that the prosecutor committed misconduct by misstating the law during 27 closing argument, but the state court of appeals found that, due to defense counsel’s failure to object or request a curative instruction, that claim of error was forfeited on appeal. (ECF No. 9-6 28 at 14.) The undersigned considers petitioner’s related ineffective assistance claim, below. 1 member in which he “said he wanted me to talk to J. and quote, ‘tell her to tell the truth.’” (ECF 2 No. 9-2 at 415.) The prosecutor continued: “Now, you could infer by that that he didn’t like what 3 she had said the first time to the authorities.” (Id.) Defense counsel objected that this misstated 4 the evidence. (Id.) The trial judge then told the jury that “what the attorneys say is not evidence.” 5 (Id.) After a bench conference, the prosecutor continued her closing argument as follows: 6 So just as an important side note, when you’re reviewing the evidence, the reason we have jurors come in is because we need 7 people with common sense and life experience. We need people who can look at the evidence and use reasonable inferences that they draw 8 from the evidence, right? You can infer that when [petitioner] made this communication . . . , that he was trying – he did not like whatever 9 statement he understood [J.] to make first, and he wanted her to change her story. . . . I would argue that a reasonable inference could 10 be found that he was trying to tamper with J. as a witness. 11 (ECF No. 9-2 at 416-417.) The trial judge overruled a second objection to this argument. (Id.) 12 In his closing argument, defense counsel argued that petitioner 13 told [J.] to tell the truth. The People want you to speculate as to what this means. Maybe he has a guilty intent. But what’s another 14 reasonable conclusion? That she just tell the truth. And after all, remember who the burden of proof is on. It’s on the Government. . . 15 . The People did not play any other statement by J. . . . They didn’t play any other statement by J. like they clearly could have. 16 17 (ECF No. 9-2 at 432) (emphasis added).) 18 On rebuttal, the prosecutor responded: 19 So, another statement that Mr. Weiss made that he said, ‘Well, Ms. Stroud could have played [J.’s] first interview for you.’ And that’s 20 not really very fair to me. . . . I would have loved to play the video of [J.]. Because I wanted you to see. Unfortunately, under the rules 21 of evidence, we can’t play things called hearsay. And that falls into the category of hearsay. So nothing was being hidden from you. It’s 22 just, we have to follow the law. So that wasn’t really a fair attack on the People’s case. 23 24 (ECF No. 9-2 at 450; see also id. at 459-461 (bench conference).) On habeas review, petitioner 25 argues that the prosecutor relied on facts not in evidence to suggest that petitioner “tried to 26 influence J. to change her story, which evidenced his guilty intent,” violating his right to a fair 27 trial. (ECF No. 1 at 30.) 28 1 In the last reasoned decision on this claim, the California Court of Appeal denied this 2 claim for the following reasons: 3 Defendant contends the prosecutor committed prejudicial misconduct on two occasions during closing argument by referring 4 to facts not in evidence and by misstating the law, violating his rights to due process and a fair trial. We disagree. 5 A. Alleged Suggestion Regarding the Content of J.’s Statement 6 1. Background 7 During the prosecutor’s closing argument, she told the jury that J.’s 8 mother, Guadalupe, testified that not long after she learned of D.’s allegations against defendant, she received a letter from defendant 9 asking her to tell J. “to tell the truth.” The prosecutor argued: “Now, you could infer by that that [defendant] didn’t like what [J.] had said 10 the first time to the authorities.” Defense counsel objected, and the trial court admonished the jury that “what the attorneys say is not 11 evidence. You have listened to all the evidence. You alone are the deciders of fact and will determine what the evidence is.” The 12 prosecutor continued: “[W]hen you’re reviewing the evidence, the reason we have jurors come in is because we need people with 13 common sense and life experience. We need people who can look at the evidence and use reasonable inferences that they draw from the 14 evidence, right? You could infer that when [defendant] made this communication to Guadalupe, that he was trying — he did not like 15 whatever statement he understood [J.] to make first, and he wanted her to change her story.” Defense counsel objected again, and the 16 court overruled the objection. 17 Defense counsel argued during closing that, contrary to D.’s testimony that J. had been molested, J. testified that she did not see 18 anything and had not been molested. He further argued that defendant’s letter to Guadalupe could have been intended simply to 19 encourage J. to tell the truth. He continued: “[R]emember, [D.] took the stand and said something that the Government didn’t like. They 20 played [D.’s] old statement. The People did not play any other statement by [J.]” The trial court overruled the prosecutor’s 21 objection. Defense counsel continued: “They didn’t play any other statement by [J.] like they clearly could have.” The trial court 22 sustained the prosecutor’s objection. 23 In rebuttal, the prosecutor noted the defense’s argument that she could have played “ ‘[J.’s] first interview for you,’ ” but she argued, 24 “that’s really not very fair to me. Because when we conduct trials here in the courthouse, attorneys have to operate by the rules of 25 evidence.” Defense counsel objected on the basis that the argument was disparaging, but the trial court overruled the objection. The 26 prosecutor continued: “I would have loved to play the video of [J.]. Because I wanted you to see. Unfortunately, under the rules of 27 evidence, we can’t play things called hearsay. And that falls into the category of hearsay. So nothing was being hidden from you. It’s just, 28 we have to follow the law. So that really wasn’t a fair attack on the 1 People’s case.” Defense counsel objected, but he agreed to wait to argue the objection until after the prosecutor’s argument concluded. 2 Following argument, defense counsel argued that he should have 3 objected to the prosecutor’s statement that she was unable to play J.’s prior statement as a misstatement of the law because J. was subject 4 to recall and had made a prior inconsistent statement; therefore, the prosecutor could have played the video. Defense counsel further 5 argued that the prosecutor’s statement suggested there was evidence that did not exist. The prosecutor responded that the defense’s 6 argument that she was hiding evidence by choosing not to play J.’s statement was inappropriate because she had wanted to play J.’s prior 7 statement, but defense counsel had previously opposed on hearsay grounds, and she did not believe any hearsay exception applied. 8 The trial court concluded that defense counsel’s argument entitled 9 the prosecutor to respond, and it overruled defense counsel’s objection and denied his request for a mistrial. 10 2. Analysis 11 Prosecutorial misconduct occurs when a prosecutor uses “ ‘deceptive 12 or reprehensible methods to persuade the jury,’ ” and such misconduct requires reversal under the federal Constitution “ ‘when 13 they infect the trial with such “ ‘unfairness as to make the resulting conviction a denial of due process.’ ” (People v. Parson (2008) 44 14 Cal.4th 332, 359.) Prosecutorial misconduct does not require a showing of bad faith on the part of the prosecutor. (People v. Hill 15 (1998) 17 Cal.4th 800, 823.) Referring to facts not in evidence during argument is a form of misconduct. (People v. Ledesma (1987) 43 16 Cal.3d 171, 238.) 17 Defendant contends the prosecutor used her personal knowledge outside the record to assure the jury that her case was stronger than 18 the evidence suggested because J. had previously made an incriminating statement concerning defendant, and defendant tried to 19 influence J. to change her story. 20 We disagree. First, the jury was aware that J. had been interviewed by authorities; J. testified about the interview, and defendant 21 questioned her about it on cross-examination. Second, the prosecutor was well within her discretion to argue to the jury that it should infer 22 defendant wrote the letter to Guadalupe because he did not like what J. had said in her interview. (See People v. Hill, supra, 17 Cal.4th at 23 p. 823 [prosecutors have wide latitude to draw inferences from the evidence presented at trial]). Defense counsel was entitled to—and 24 did—argue that the jury should instead infer that defendant was simply asking J. to tell the truth. Third, we recognize that the 25 prosecutor stated that she “would have loved to play the video of [J.]” because she “wanted [the jury] to see,” but she could not play the 26 video under the rules of evidence. This type of extra-record assurance to the jury is generally impermissible, particularly when coupled 27 with a reference to the rules of evidence, which are not before the jury. However, this comment was in direct response to defense 28 counsel’s argument that the prosecutor failed to play J.’s prior 1 statement—“like they clearly could have”—when J. “said something the Government didn’t like.” Thus, rather than attempting to 2 strengthen her case by suggesting the existence of evidence outside of the record, the prosecutor was responding to the defense’s 3 assertion that the prosecution did not play J.’s prior statement despite having the ability to do so. 4 Although certainly not an ideal exchange to have in front of the jury, 5 we disagree that the prosecutor committed misconduct because, as defendant argues, she suggested her case was stronger than the 6 evidence showed. 7 (ECF No. 9-6 at 11-13.) 8 The controlling Supreme Court precedent governing prosecutorial misconduct claims is 9 Darden v. Wainwright, 477 U.S. 168 (1986). Under Darden, it can be misconduct for prosecutors 10 to manipulate or misstate the evidence or law during closing arguments. See id. at 180-82. Even 11 so, such misconduct cannot violate the Constitution unless the errant statements “so infected the 12 trial with unfairness as to make the resulting conviction a denial of due process.” Id. at 181. That 13 is because the “touchstone of due process analysis in cases of alleged prosecutorial misconduct is 14 the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 15 (1982). Even if a prosecutor’s remarks were improper, the dispositive question under Darden is 16 whether those remarks were prejudicial. See Ford v. Perry, 999 F.3d 1214, 1225-26 (9th Cir. 17 2021). If there was no “reasonable probability” of a different result without the prosecutorial 18 misstatements, Darden provides no basis for relief. Deck v. Jenkins, 814 F.3d 954, 979 (9th Cir. 19 2016). 20 Here, the last reasoned state court decision was not an unreasonable application of 21 Darden. Under Darden, “the arguments of counsel . . . must be judged in the context in which 22 they are made.” Boyde v. California, 494 U.S. 370, 385 (1990) (citing Darden, 477 U.S. 168) 23 (other citations omitted). The state appeals court considered the context of the prosecutor’s 24 challenged statements, including her rebuttal statements made in response to arguments by 25 defense counsel. The court found that, under state law, the prosecutor was “well within her 26 discretion to argue to the jury that it should infer defendant wrote the letter . . . because he did not 27 like what J. said in her interview.” ECF No. 9-6 at 12. The court further found that, on rebuttal, 28 the prosecutor made the challenged statements “in direct response to defense counsel’s argument . 1 . . that the prosecution did not play J.’s prior statement despite having the ability to do so.” Id. at 2 13 (emphasis in original). 3 Finally, even assuming arguendo that the prosecutor committed misconduct, petitioner 4 has not shown that the prosecutor’s statements “so infected the trial with unfairness as to make 5 the resulting conviction a denial of due process.” Darden, 477 U.S. at 481. Ample evidence 6 supported petitioner’s conviction, including testimony by the victim, D., that petitioner “touched” 7 her in her “private parts . . . more than one time.” (ECF No. 9-2 at 99.) Her testimony described 8 specific incidents involving petitioner, including a date she testified that she remembered in detail 9 because it was her cousin’s birthday. (ECF No. 9-2 at 102-113.) As petitioner has not shown he is 10 entitled to federal habeas relief due to the prosecutor’s closing statements, this claim should be 11 denied. 12 D. Claim 4: Ineffective Assistance of Counsel 13 In a related claim, petitioner asserts that his counsel rendered ineffective assistance by 14 failing to object to prosecutor’s closing argument that J. was a victim of sexual abuse. 15 In the last reasoned decision on this claim, the California Court of Appeal denied this 16 claim for the following reasons: 17 1. Background 18 During closing, the defense argued in part that D.’s testimony was not credible because she testified that J. had witnessed defendant 19 molesting D. and also that defendant had molested J., but J. had testified that she did not witness defendant molesting D. and that she 20 herself was not molested. 21 In rebuttal, the prosecutor argued: “[J.], this case is not about [J.]. [J.] is not the alleged victim in this case. [D.] is the alleged victim in this 22 case. You heard from [J.] because she was a witness to some of the events with [D.]. But to suggest that just because [J.] has not made 23 her own disclosure of any abuse, to suggest that means [D.] is lying about what she saw, well, that’s not really fair, right? Because Dr. 24 Urquiza said all kids have their own factors that come into play about when, or if they’re going to disclose. 25 “It’s a lot of people, kids don’t want to deal with the shame, the 26 embarrassment of it. So they just want to keep quiet about it. And for every kid that’s going to be a different journey. For [D.], she just 27 happened to have the circumstances align [when she disclosed the abuse]. Every child who is a victim of sexual abuse is going to have 28 their own moment like that. 1 “But to say just because [J.] has not made that type of disclosure about [defendant] does not necessarily mean that [D.] is lying. And I 2 would ask you to be understanding of that. And nobody is going to force [J.] to have that experience before she’s ready. And so I ask 3 you to consider [J.’s] testimony for what it’s being offered for. What she saw, what she heard, her descriptions of [D.]’s reactions to 4 [defendant]. 5 “Because her testimony does corroborate [D.]’s version of events. And it would be a shame to just throw out either girls’ testimony 6 because you think one has to cancel out the other.” 7 Defendant did not object to this argument or request a curative instruction. 8 2. Analysis 9 Defendant’s failure to object to this argument or request a curative 10 instruction has forfeited the claim of error on appeal. (People v. Valdez (2004) 32 Cal.4th 73, 132.) Anticipating that conclusion, 11 defendant contends trial counsel was constitutionally ineffective for failing to object. To prevail on his claim of ineffective assistance of 12 counsel, defendant must show (1) that his counsel’s representation was deficient, i.e., that it “fell below an objective standard of 13 reasonableness,” and (2) that prejudice resulted, i.e., that “there is a reasonable probability that, but for counsel’s unprofessional errors, 14 the result of the proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) “ ‘If the 15 defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.’ ” (People v. Holt 16 (1997) 15 Cal.4th 619, 703.) 17 “When examining an ineffective assistance claim, a reviewing court defers to counsel’s reasonable tactical decisions, and there is a 18 presumption counsel acted within the wide range of reasonable professional assistance.” (People v. Mai (2013) 57 Cal.4th 986, 19 1009.) The record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. (People v. 20 Williams (1997) 16 Cal.4th 153, 215.) “ ‘[T]he decision facing counsel in the midst of trial over whether to object to comments made 21 by the prosecutor in closing argument is a highly tactical one’ [citation], and ‘a mere failure to object to evidence or argument 22 seldom establishes counsel’s incompetence.’ ” (People v. Centeno (2014) 60 Cal.4th 659, 675.) If the record on appeal sheds no light 23 on why trial counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be 24 rejected unless counsel was asked for an explanation and failed to provide one or there could be no satisfactory explanation. (People v. 25 Mendoza Tello (1997) 15 Cal.4th 264, 266.) 26 Defendant contends trial counsel was constitutionally ineffective for failing to object to the prosecutor’s argument that J. was a victim of 27 sexual abuse but was delaying disclosure, and therefore her statements, which contradicted D.’s as to whether J. was abused, 28 should not be believed. 1 At the outset, we disagree with defendant’s claim that there was ‘no factual basis’ for the prosecutor’s argument that J. was the victim of 2 sexual abuse. D. testified that she had personally witnessed J. being sexually abused by defendant, and she told a social worker that she 3 saw defendant touching J. at a family member’s house. While we recognize J. did not corroborate D.’s testimony on that point, and 4 there was no physical evidence corroborating D.’s testimony, D.’s testimony certainly provided a factual basis to support the 5 prosecutor’s argument. 6 We also disagree with defendant’s characterization that the prosecutor improperly used CSAAS to bolster her argument that J. 7 had been abused, and J.’s statements to the contrary should not be believed. CSAAS evidence was admitted to assist the jury in 8 assessing whether or not D.’s testimony was believable. The defense argued that D. was not a credible witness because she had testified 9 that J. had observed D. being abused and that J. had herself been abused, yet J. testified that she did not see D. being abused and she 10 had not been abused. The nature of the prosecutor’s response was to argue that J.’s testimony did not render D. an unbelievable witness; 11 in other words, the prosecutor invoked the CSAAS evidence to argue for the believability of D.’s testimony. Indeed, the prosecutor stated, 12 “just because [J.] has not made that type of disclosure about [defendant] does not necessarily mean that [D.] is lying.” (Italics 13 added.) The jury was entitled to consider CSAAS evidence to assess the believability of D.’s testimony. 14 Because defense counsel did not fall below a reasonable attorney 15 standard in failing to object to the prosecutor’s argument, defendant’s claim of ineffective assistance of counsel fails. 16 17 (ECF No. 9-6 at 13-15.) 18 To state an ineffective assistance of counsel claim, a defendant must show that (1) his 19 counsel’s performance was deficient, falling below an objective standard of reasonableness, and 20 (2) his counsel’s deficient performance prejudiced the defense. Strickland v. Washington, 466 21 U.S. 668, 687-88 (1984). For the deficiency prong, “a court must indulge a strong presumption 22 that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, 23 the defendant must overcome the presumption that, under the circumstances, the challenged 24 action ‘might be considered sound trial strategy.’” Id. at 689 (citation omitted). For the prejudice 25 prong, the defendant “must show that there is a reasonable probability that, but for counsel’s 26 unprofessional errors, the result of the proceeding would have been different. A reasonable 27 probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. 28 “The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the 1 two apply in tandem, review is ‘doubly’ so.” Harrington v. Richter, 562 U.S. 86, 105 (2011) 2 (internal citations omitted). “When § 2254(d) applies, . . . the question is whether there is any 3 reasonable argument that counsel satisfied Strickland’s deferential standard.” Id. 4 Federal habeas courts reviewing a claim that counsel was ineffective for failing to object 5 to improper closing argument must be deferential to both counsel’s decision not to object and the 6 state court’s conclusion that that decision was reasonable. See Harrington, 562 U.S. at 103, 105; 7 Zapata v. Vasquez, 788 F.3d 1106, 1115 (9th Cir. 2015) (“We consider whether it would have 8 been reasonable to reject [petitioner’s] allegation of deficient performance for any of the reasons 9 expressed by the court of appeal.” (citations and alterations omitted)); Dubria v. Smith, 224 F.3d 10 995, 1003-04 (9th Cir. 2000) (en banc) (finding that trial counsel was not ineffective for failing to 11 object to prosecutor’s closing argument when argument was not improper). Moreover, 12 failure to object during a closing summation generally does not constitute deficient performance. Absent egregious misstatements, 13 the failure to object during closing argument and opening statement is within the wide range of permissible professional legal conduct. 14 Zapata, 788 F.3d at 1115 (citation and alteration omitted). 15 Here, petitioner has not demonstrated that defense counsel’s failure to object to the 16 prosecutor’s closing statements about J. constituted deficient performance. Both sides were 17 arguing about the credibility of minors who may or may not have been sexually abused, and to 18 whom the CSAAS factors, including delayed disclosure, could conceivably apply. In this context 19 of factual uncertainty, the prosecutor’s statements about J. did not constitute “egregious 20 misstatements” that clearly warranted an objection. Nor has petitioner shown that a defense 21 objection to these statements could have reasonably resulted in a different outcome. Therefore, it 22 was reasonable for the state court to reject petitioner’s claim for ineffective assistance of counsel 23 on this basis. 24 E. Claim Five: Erroneous Jury Instruction 25 Petitioner claims that the jury instruction on CSAAS evidence (CALCRIM No. 1193, set 26 forth above) was a misstatement of the law that denied him due process and a fair trial. Petitioner 27 contends that the instruction “erroneously told the jury it could use the evidence to evaluate the 28 1 ‘believability’ of the victim’s testimony,” lowering the burden of proof. (ECF No. 1 at 32.) 2 In the last reasoned decision on this claim, the California Court of Appeal denied this 3 claim for the following reasons: 4 Defendant contends that reversal is required because CALCRIM No. 1193 is invalid as it erroneously instructs the jury that it may use 5 CSAAS evidence to determine the credibility of the victim and to corroborate the victim’s claims of abuse, thereby lowering the 6 prosecution’s burden of proof in violation of his constitutional rights to due process and a fair trial. 7 FN 5. Defense counsel did not object to the instruction at trial, 8 but we review the merits of the claim to determine whether defendant’s substantial rights were affected. (§ 1259; People 9 v. Felix (2008) 160 Cal.App.4th 849, 857.) 10 We disagree. 11 We independently determine whether a jury instruction correctly states the law. (People v. Riley (2010) 185 Cal.App.4th 754, 767.) 12 Review of the adequacy of an instruction is based on whether the trial court fully and fairly instructed on the applicable law. (Ibid.) When 13 reviewing a purportedly erroneous instruction, we inquire whether there is a reasonable likelihood that the jury has applied the 14 challenged instruction in a way that violates the constitution. (People v. Richardson (2008) 43 Cal.4th 959, 1028.) We consider the 15 instructions as a whole and assume that the jurors are intelligent persons and capable of understanding and correlating all the 16 instructions that are given. (Riley, at p. 767.) A jury instruction should be interpreted, if possible, to support the judgment rather than 17 defeat it, if it is reasonably susceptible to such interpretation. (Ibid.) 18 Here, the jury was instructed with CALCRIM No. 1193 as follows: “You have heard testimony from Dr. Urquiza, regarding [CSAAS]. 19 Dr. Urquiza’s testimony about [CSAAS] is not evidence that the Defendant committed any of the crimes charged against him. You 20 may consider this evidence only in deciding whether [D.’s] conduct was not inconsistent with the conduct of someone who has been 21 molested, and in evaluating the believability of her testimony.” 22 CALCRIM No. 1193 is a correct statement of the law. CSAAS evidence is properly considered to evaluate whether the victim’s 23 conduct as demonstrated by the evidence was inconsistent with having been molested, and to help the jury evaluate credibility, i.e., 24 the believability of the victim’s testimony. (McAlpin, supra, 53 Cal.3d at pp. 1300-1301; see also People v. Housley (1992) 6 25 Cal.App.4th 947, 958-959.) 26 Contrary to defendant’s contention, the instruction does not lower the prosecution’s burden of proof; it specifically states that CSAAS 27 testimony “is not evidence that the defendant committed any of the crimes charged against him,” and that the jury “may” consider the 28 evidence “only in deciding whether or not [D.’s] conduct was not 1 inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony.” The instruction 2 does not state or imply that jurors could consider the CSAAS evidence to corroborate D.’s claims of molestation. Further, the 3 challenged instruction cannot be read in isolation; it must be considered in the context of the instructions as a whole. As relevant 4 here, the jury was instructed on the presumption of innocence and the prosecution’s burden of proof (CALCRIM No. 220), and how to 5 evaluate witness credibility (CALCRIM No. 226) and conflicting evidence (CALCRIM No. 302). It was instructed to “[p]ay careful 6 attention to all of the[ ] instructions and consider them together” (CALCRIM No. 200), that “certain evidence was admitted for a 7 limited purpose,” and to “consider that evidence only for that purpose and for no other” (CALCRIM No. 303). The jury was further 8 instructed that it was not required to accept as true or correct expert testimony and it “may disregard any opinion [it found] unbelievable, 9 unreasonable or unsupported by the evidence.” (CALCRIM No. 332, Expert Witness Testimony.) We presume the jury understood and 10 followed the court’s instructions, including the prosecution’s burden of proof. (People v. Edwards (2013) 57 Cal.4th 658, 746.) We 11 conclude that it is not reasonably likely that the jury understood CALCRIM No. 1193 in the manner suggested by defendant. 12

13 (ECF No. 9-6 at 7-8.) 14 To obtain federal habeas relief for a jury instructional error, petitioner must show that the 15 error “so infected the entire trial that the resulting conviction violates due process.” Estelle, 502 16 U.S. at 72. Where an ambiguous or potentially defective instruction is at issue, the court must ask 17 whether there is a “reasonable likelihood” that the jury applied the challenged instruction in a way 18 that violated the constitution. See id. Moreover, the instruction must be evaluated in the light of 19 the instructions as a whole and the entire trial record. See id. A “slight possibility” that the jury 20 misapplied the instruction is not sufficient. Weeks v. Angelone, 528 U.S. 225, 236 (2000). 21 Here, as in Griffin v. Martinez, No. 1:17-cv-01137-DAD-HBK, 2021 WL 4100000, at *14 22 (E.D. Cal. Sept. 9, 2021) (emphasis in original), 23 [t]he record reflects the jury was not instructed to use CSAAS evidence as proof that a crime had occurred or that the witnesses were 24 telling the truth. To the contrary, the jury was instructed that [t]he testimony about [CSAAS] is not evidence that the defendant 25 committed any of the charges against him. Indeed, the jury was instructed to use the CSAAS evidence ‘only in deciding whether or 26 not [D.’s] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of [her] 27 testimony. . . . The instruction did not require the jury to find the child witnesses were telling the truth or that the alleged crime 28 occurred. 1 | (ECF No. 9-1 at 318.) Also as in Griffin, the state appellate court considered the instructional 2 || error claim in the context of the other instructions given, fulfilling the requirements of due 3 || process. The Court finds that the state court’s rejection of this claim was not an unreasonable 4 || application of federal law or based on an unreasonable determination of the facts. Petitioner’s jury 5 || instruction claim should be denied. 6 | V. CONCLUSION 7 Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of 8 | habeas corpus be denied. 9 These findings and recommendations are submitted to the United States District Judge 10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 11 | after being served with these findings and recommendations, any party may file written 12 || objections with the court and serve a copy on all parties. Such a document should be captioned 13 || “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, 14 | he shall also address whether a certificate of appealability should issue and, if so, why, and as to 15 || which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the 16 || applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 17 || § 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after 18 || service of the objections. The parties are advised that failure to file objections within the specified 19 || time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 20 | (9th Cir. 1991). 21 22 || Dated: March 12, 2025 A aA Aan Spe | CHI SOO KIM 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 || mari0554.157.csk/6 28 26