Silva v. Koenig

• Court: District Court, N.D. California
• Decided: September 25, 2019
• Docket: 4:18-cv-05660
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 JOSE A. SILVA, Case No. 18-cv-05660-YGR (PR)

5 Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND 6 v. DENYING CERTIFICATE OF APPEALABILITY 7 TIM JOHNSON, Warden,1

Respondent. 8

9 Petitioner Jose A. Silva, a state prisoner currently incarcerated at Central Valley Modified 10 Community Correctional Facility, brings the instant pro se habeas action under 28 U.S.C. § 2254 11 to challenge his 2014 conviction and sentence rendered in the Santa Clara County Superior Court 12 involving sexual offenses against his former girlfriend’s daughter, Victoria Doe.2 Having read and 13 considered the papers filed in connection with this matter and being fully informed, the Court 14 hereby DENIES the petition for the reasons set forth below. 15 I. FACTUAL BACKGROUND 16 The California Court of Appeal summarized the facts of Petitioner’s offense as follows. 17 This summary is presumed correct. See Hernandez v. Small, 282 F.3d 1132, 1135 n.1 (9th Cir. 18 2002); 28 U.S.C. § 2254(e)(1). 19 The Prosecution’s Evidence 20 In the fall of 2011, 13-year-old Victoria Doe lived in an apartment with her mother and defendant. Defendant and Victoria’s mother 21 were dating.

22 On October 31, 2011, Victoria fell asleep in her Halloween costume. Victoria woke up and “somebody” was “touching” her. She testified 23 that she had no clothes on, and the person had their fingers in her vagina. Victoria moved, and the person walked out of her bedroom. 24 Victoria went to the bathroom and cried. When she left the bathroom, she saw defendant sleeping on the couch with the television on. 25

26 1 Tim Johnson, the current warden of the prison where Petitioner is incarcerated, has been substituted as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. 27 Victoria thought this was unusual because defendant did not sleep 1 with the television on.

2 Victoria testified that defendant subsequently touched her “multiple times.” She explained that the incidents of touching “all blurred 3 together because they are mostly the same.” During the incidents, Victoria would wake up, and defendant would be there putting his 4 fingers inside her vagina. On some occasions, defendant would also rub and grab Victoria’s breasts. During one incident, defendant 5 grabbed Victoria’s hand and placed it on his penis. During another incident, defendant tried to put his penis inside Victoria’s vagina. 6 Victoria testified that she was “scared” and “just froze” on the occasions when defendant touched her. The last time defendant 7 touched Victoria’s vagina was on January 8, 2012.

8 Victoria testified that defendant put his fingers inside her vagina “at least 15 to 20” times. On cross-examination, when asked if there 9 could have been less than 15 or 20 incidents of touching, Victoria testified: “It may have been less; it may have been more.” On redirect 10 examination, Victoria testified that the “absolute minimum” number of times defendant put his fingers in her vagina was “ten times.” 11 Victoria told three friends that defendant was touching her. One of 12 those friends encouraged Victoria to report the touching. On January 10, 2012, Victoria reported the touching to an official at her school. 13 Police came to Victoria’s school to interview her.

14 Victoria made two pretext phone calls to defendant on January 10, 2012. During the first call, Victoria said to defendant, “[Y]ou’ve been 15 coming into my room and stuff, you know, and I think I might be pregnant.” Defendant responded, “I’ve never done anything further 16 than what I’ve done.” Defendant also said, “I’ve never, you now, put anything inside of you.” Victoria said that she was “not completely 17 sure how you get pregnant,” and defendant responded, “I’ve never, ever done anything other than touch you.” Victoria asked defendant 18 what he had touched, and defendant replied, “Like your breasts. Well I’ve never done anything else.” When Victoria asked defendant why 19 he was touching her breasts, defendant stated: “Because I get fuckin’ drunk, I’m sorry. I’ll, I promise I’ll never fuckin’ do it again. I 20 fuckin’ get so stupid. And you’re actin’ like you fuckin’ never fuckin’, you know, messed around with me, when I didn’t fuckin’ 21 wanna fuck around.” Victoria asked, “Does my mom know?” Defendant responded, “No.” 22 Victoria’s behavior changed after she reported the touching. She 23 stopped going to school, and she started drinking alcohol and taking pills. Between June 2012 and February 2014, Victoria committed 24 several felonies, including an auto theft, a residential burglary, and two second degree burglaries. 25 The Defense Evidence 26 Defendant testified on his own behalf. He denied molesting Victoria. He testified that he never touched Victoria’s vagina, never touched 27 her breasts inappropriately, and never forced her to touch his penis. Victoria hit him, he would hit her back. He testified that he hit various 1 parts of Victoria’s body, including “her boob.” When defendant used the word “touch” in the pretext call, he was referring to hitting 2 Victoria. He explained that he believed Victoria’s aunt was listening in on the call, he did not want to make the aunt angry, and he thought 3 the word “touch” was a “less aggressive word” than the word “hit.”

4 Defendant denied touching Victoria on Halloween night. He explained that on Halloween night he was preparing for his young 5 daughter’s birthday party while Victoria was in her room. Defendant denied touching Victoria on January 8. He explained that on that date 6 he was visiting his sister and did not return home until 10:30 or 11:00 p.m. Defendant’s sister testified that defendant visited her on January 7 8, 2012. 8 People v. Silva, No. H041474, 2017 WL 1229745, *1-2 (Cal. Ct. App. Mar. 30, 2017). 9 II. PROCEDURAL BACKGROUND 10 On October 4, 2012, the Santa Clara County District Attorney filed an information initially 11 charging Petitioner with five counts of lewd or lascivious conduct on a child under the age of 12 fourteen by force, violence, duress, menace, and fear, pursuant to California Penal Code 13 § 288(b)(1). 1CT 155-159. An amended information filed on August 12, 2014 revised the 14 charges against Petitioner to five counts of lewd or lascivious conduct on a child under the age of 15 fourteen, pursuant to California Penal Code § 288(a). 1CT 252-256. 16 Following a jury trial, a Santa Clara County jury convicted Petitioner of all five counts on 17 August 20, 2014. 2CT 403-407, 409-410. On September 19, 2014, the trial court sentenced 18 Petitioner to sixteen years in prison. 2CT 474-479. 19 Petitioner filed a timely appeal and argued that the unanimity instruction, along with the 20 trial court’s failure to specifically instruct on “the principle of generic-testimony unanimity,” 21 violated his right to due process by reducing the prosecution’s burden of proof. Silva, 2017 WL 22 1229745, at *2. On March 30, 2017, the California Court of Appeal rejected Petitioner’s claims 23 and affirmed the judgment of conviction. Id. at *2-4. 24 On June 14, 2017, the California Supreme Court denied review. Resp’t Ex. 5. Petitioner 25 did not seek collateral review in the state courts. 26 On September 17, 2018, Petitioner filed the instant habeas action in this Court. Dkt. 1. 27 1 Petitioner raises the same claims he raised on direct appeal. Id. at 5.3 2 On October 4, 2018, this Court issued an Order to Show Cause. Dkt. 6. On December 3, 3 2018, Respondent filed an Answer. Dkt. 11. On January 7, 2019, Petitioner filed a one-page 4 document entitled, “Traverse In Support of Answer,” in which he states that he “has no Traverse 5 to contend with the Respondent’s Answer, but truly wishes th[at] the Court does not dismiss the 6 case and [he] is given a fair hearing.” Dkt. 13. The matter is fully briefed and ripe for 7 adjudication. 8 III. LEGAL STANDARD 9 A federal court may entertain a habeas petition from a state prisoner “only on the ground 10 that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 11 U.S.C. § 2254(a). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, 12 a district court may not grant a petition challenging a state conviction or sentence on the basis of a 13 claim that was reviewed on the merits in state court unless the state court’s adjudication of the 14 claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, 15 clearly established Federal law, as determined by the Supreme Court of the United States; or 16 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of 17 the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The first prong 18 applies both to questions of law and to mixed questions of law and fact, see Williams (Terry) v. 19 Taylor, 529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based on factual 20 determinations, see Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 21 A state court decision is “contrary to” Supreme Court authority, that is, falls under the first 22 clause of section 2254(d)(1), only if “the state court arrives at a conclusion opposite to that 23 reached by [the Supreme] Court on a question of law or if the state court decides a case differently 24 than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams (Terry), 529 25 U.S. at 412-13. A state court decision is an “unreasonable application of” Supreme Court 26 authority, falling under the second clause of section 2254(d)(1), if it correctly identifies the 27 1 governing legal principle from the Supreme Court’s decisions but “unreasonably applies that 2 principle to the facts of the prisoner’s case.” Id. at 413. The federal court on habeas review may 3 not issue the writ “simply because that court concludes in its independent judgment that the 4 relevant state-court decision applied clearly established federal law erroneously or incorrectly.” 5 Id. at 411. Rather, the application must be “objectively unreasonable” to support granting the writ. 6 Id. at 409. 7 Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual determination will 8 not be overturned on factual grounds unless objectively unreasonable in light of the evidence 9 presented in the state-court proceeding.” See Miller-El, 537 U.S. at 340; see also Torres v. 10 Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). Moreover, “a determination of a factual issue made 11 by a State court shall be presumed to be correct,” and the petitioner “shall have the burden of 12 rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. 13 § 2254(e)(1). 14 In determining whether a state court’s decision is contrary to, or involves an unreasonable 15 application of, clearly established federal law, courts in this Circuit look to the decision of the 16 highest state court to address the merits of the petitioner’s claim in a reasoned decision. See 17 Wilson v. Sellers, __ U.S. __, 138 S. Ct. 1188, 1192 (2018); LaJoie v. Thompson, 217 F.3d 663, 18 669 n.7 (9th Cir. 2000). Moreover, “a determination of a factual issue made by a State court shall 19 be presumed to be correct,” and the petitioner “shall have the burden of rebutting the presumption 20 of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). 21 Even if constitutional error is established, habeas relief is warranted only if the error had a 22 “substantial and injurious effect or influence in determining the jury’s verdict.” Penry v. Johnson, 23 532 U.S. 782, 795-96 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). 24 On federal habeas review, AEDPA “imposes a highly deferential standard for evaluating 25 state-court rulings” and “demands that state-court decisions be given the benefit of the doubt.” 26 Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks omitted). In applying the 27 above standards on habeas review, the Court reviews the “last reasoned decision” by the state 1 When there is no reasoned opinion from the highest state court to consider the petitioner’s 2 claims, the court looks to the last reasoned opinion. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 3 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). Thus, a federal court 4 will “look through” the unexplained orders of the state courts rejecting a petitioner’s claims and 5 analyze whether the last reasoned opinion of the state court unreasonably applied Supreme Court 6 precedent. See Ylst, 501 U.S. at 804-06; LaJoie, 217 F.3d at 669 n.7. The last reasoned decision 7 in this case is the state appellate court’s unpublished disposition issued on March 30, 2017, which 8 relates to Petitioner’s claims in the petition. Silva, 2017 WL 1229745, at *2-4. 9 IV. LEGAL CLAIMS 10 As mentioned, Petitioner claims that the trial court’s improper unanimity instruction, along 11 with its failure to specifically instruct on “the principle of generic-testimony unanimity,” violated 12 his right to due process by reducing the prosecution’s burden of proof. Dkt. 1 at 5. The Court 13 notes that Petitioner presented these issues as two separate claims in state court and in his current 14 federal petition. As explained below, the state appellate court addressed them together because the 15 two claims are closely intertwined. 16 A. Background 17 The state appellate court gave the following background relating to Petitioner’s claims, 18 stating as follows:

19 Pursuant to CALJIC No. 17.02, the trial court provided the following instruction to the jury: 20 “17.02 SEVERAL COUNTS—JURY MUST FIND 21 ON EACH

22 Each Count charges a distinct crime. You must decide each Count separately. The defendant may be 23 found guilty or not guilty of any or all of the crimes charged. Your finding as to each Count must be 24 stated in a separate verdict.”

25 Pursuant to CALJIC No. 4.71.5, the trial court provided the following instruction to the jury: 26 “4.71.5 WHEN PROOF MUST SHOW SPECIFIC 27 ACTS OR ACTS WITHIN TIME ALLEGED having committed the crime of Lewd or Lascivious 1 Acts with a child under 14, a violation of section 288(a) of the Penal Code, on or about and between 2 October 31, 2011 and January 10, 2012.

3 “In order to find the defendant guilty, it is necessary for the prosecution to prove beyond a reasonable 4 doubt the commission of a specific act or acts constituting that crime are within the period alleged. 5 “And, in order to find the defendant guilty, you must 6 unanimously agree upon the commission of the same specific act or acts constituting that crime are within 7 the period alleged.

8 “It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.” 9 Silva, 2017 WL 1229745, at *2. 10 B. State Court Opinion 11 On the unanimity issue, the state appellate court stated that when faced with “reviewing a 12 purportedly erroneous instruction,” the question was “whether there was a reasonable likelihood 13 the jury had applied the challenged instruction in a way that violated the Constitution,” and the 14 instruction “must be viewed in the context of the overall charge.” Silva, 2017 WL 1229745, at *3. 15 On the generic-testimony issue, the state appellate court was guided by People v. Jones, 51 16 Cal. 3d 294, 321-22 (1990), where the California Supreme Court held: 17 In a case in which the evidence indicates the jurors might disagree as 18 to the particular act defendant committed, the standard unanimity instruction should be given. [Citation.] But when there is no 19 reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed 20 all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously 21 agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by 22 the victim. 23 Silva, 2017 WL 1229745, at *3-4. The state appellate court then found that the trial court erred by 24 failing to give the jury a generic-testimony unanimity instruction, but concluded that such an error 25 did not necessitate reversal. Id. at *4. The following is taken from the state appellate court’s 26 decision rejecting Petitioner’s claims:

27 Defendant Has Not Shown Reversible Error guilty of all five charges if they reached unanimous agreement that he 1 had committed only a single act constituting a violation of [Penal Code] section 288, subdivision (a).” This argument is not convincing. 2 There is not a reasonable likelihood that the jury applied CALJIC No. 3 4.71.5 in the manner espoused by defendant. Defendant’s argument focuses on a single phrase in CALJIC No. 4.71.5—“act or acts.” 4 Defendant contends that the phrase “places ‘act,’ singular, and ‘acts,’ plural, on an equal footing” and thus “conveys the erroneous 5 impression that it is sufficient for the jury to agree unanimously on only a single act in order to find the defendant guilty on all charges.” 6 Defendant improperly asks this court to view the phrase “act or acts” in isolation. We refuse to do so. (See [People v.] Richardson, 7 [(2008)] 43 Cal. 4th [959,] 1028 [we will not view an instruction in artificial isolation].) CALJIC No. 17.02 specifically advised the jury: 8 “Each Count charges a distinct crime. You must decide each Count separately.” CALJIC No. 17.02 informed the jury that it needed to 9 find a distinct, separate crime for each of the five counts. The combination of CALJIC No. 4.71.5 and CALJIC No. 17.02 10 adequately informed the jury that it needed to reach unanimous agreement on five separate crimes. When CALJIC No. 17.02 is read 11 in conjunction with CALJIC No. 4.71.5, it is not reasonably likely that the jury interpreted CALJIC No. 4.71.5 in the manner 12 propounded by defendant. (See [People v.] Milosavljevic, [(2010)] 183 Cal. App. 4th [640,] 649 [a reviewing court assumes that jurors 13 “are intelligent persons capable of understanding and correlating all jury instructions given them”].) 14 Defendant correctly asserts that the trial court failed to instruct on 15 generic-testimony unanimity, as required by Jones, supra, 51 Cal. 3d 294. Jones held: “[W]hen there is no reasonable likelihood of juror 16 disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be 17 given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also 18 allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim.” (Id. at p. 322.) The 19 instructions here failed to advise the jury that it could convict defendant on all charges if it unanimously agreed that defendant 20 committed all of the acts described by Victoria. The issue is whether the error necessitates reversal. 21 The erroneous failure to give a unanimity instruction is governed by 22 the prejudice standard articulated in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). (People v. Thompson (1995) 36 Cal. 23 App. 4th 843, 853 (Thompson).) Under the Chapman standard, reversal is required unless the reviewing court is satisfied “beyond a 24 reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Chapman, supra, 386 U.S. at p. 24.) 25 “Where the record provides no rational basis, by way of argument or 26 evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that defendant 27 committed all acts if he committed any, the failure to give a unanimity therefore would have convicted him of any of the various offenses 1 shown by the evidence, the failure to give the unanimity instruction is harmless.” (Thompson, supra, 36 Cal. App. 4th at p. 853.) 2 Here, the failure to give a generic-testimony unanimity instruction 3 does not necessitate reversal. This case required the jury to resolve a credibility dispute. Victoria and defendant provided completely 4 different testimony. Victoria described a series of molestations that “blurred together” because they were “mostly the same.” Although 5 she did not provide many details of the molestations, Victoria testified that defendant put his fingers inside her vagina on a “minimum” of 6 ten occasions. Defendant categorically denied molesting Victoria. During closing argument, defense counsel advised the jury that “this 7 case is one of credibility” and “really does boil down to whether you can believe the accusations made by Victoria.” The jury here resolved 8 the credibility dispute in favor of Victoria and against defendant. On this record, we are convinced that the jury believed beyond a 9 reasonable doubt that defendant committed all five charged acts of molestation. We must conclude that the failure to give a generic- 10 testimony unanimity instruction was harmless error. (See Thompson, supra, 36 Cal. App. 4th at p. 853.) 11 Id. at *3-4 (brackets added). 12 C. Applicable Law 13 To obtain federal collateral relief for errors in the jury charge, a petitioner must show that 14 the ailing instruction by itself so infected the entire trial that the resulting conviction violates due 15 process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991); Cupp v. Naughten, 414 U.S. 141, 147 16 (1973); see also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (“‘[I]t must be established 17 not merely that the instruction is undesirable, erroneous or even “universally condemned,” but that 18 it violated some [constitutional right].’”). The instruction may not be judged in artificial isolation, 19 but must be considered in the context of the instructions as a whole and the trial record. See 20 Estelle, 502 U.S. at 72. In other words, the court must evaluate jury instructions in the context of 21 the overall charge to the jury as a component of the entire trial process. United States v. Frady, 22 456 U.S. 152, 169 (1982) (citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)). The defined 23 category of infractions that violate fundamental fairness is very narrow: “Beyond the specific 24 guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation.” 25 Estelle, 502 U.S. at 73. 26 The Due Process Clause of the Fourteenth Amendment protects the accused against 27 conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the 1 crime with which he or she is charged. In re Winship, 397 U.S. 358, 364 (1970); see, e.g., Solis v. 2 Garcia, 219 F.3d 922, 926-27 (9th Cir. 2000) (Winship rule not violated where jury was given 3 instructions on liability under the natural and probable consequences doctrine that included all 4 elements of second degree murder, even though jury was not given instructions on the target crime 5 of second degree murder, which defendant allegedly committed as an aider and abettor). But 6 instructions that lessen the prosecution’s burden will be subject to harmless error review, rather 7 than structural error review, “unless all the jury’s findings are vitiated.” Byrd v. Lewis, 566 F.3d 8 855, 866 (9th Cir. 2009) (emphasis in original) (citing Hedgpeth v. Pulido, 555 U.S. 57, 61 (2008) 9 (finding application of harmless error analysis of a defective jury instruction was proper because 10 the instructional error was only with respect to one element and did not vitiate the jury’s finding of 11 guilt on the charged offense)). 12 In reviewing an ambiguous instruction, the inquiry is not how reasonable jurors could or 13 would have understood the instruction as a whole; rather, the court must inquire whether there is a 14 “reasonable likelihood” that the jury has applied the challenged instruction in a way that violates 15 the Constitution. See Estelle, 502 U.S. at 72 & n.4; Boyde v. California, 494 U.S. 370, 380 16 (1990). In order to show a due process violation, the petitioner must show both ambiguity and a 17 “reasonable likelihood” that the jury applied the instruction in a way that violates the Constitution, 18 such as relieving the state of its burden of proving every element beyond a reasonable doubt. 19 Waddington v. Sarausad, 555 U.S. 179, 190-91 (2009) (internal quotations and citations omitted). 20 A determination that there is a reasonable likelihood that the jury has applied the 21 challenged instruction in a way that violates the Constitution establishes only that an error has 22 occurred. See Calderon v. Coleman, 525 U.S. 141, 146 (1998). If an error is found, the court also 23 must determine that the error had a substantial and injurious effect or influence in determining the 24 jury’s verdict, see Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), before granting relief in 25 habeas proceedings, see Calderon, 525 U.S. at 146-47. 26 D. Analysis 27 1. Unanimity Instruction (CALJIC No. 4.71.5) 1 “permits the jury to convict on all charges based on [a] unanimous agreement as to only one act.” 2 Dkt. 1 at 5. However, as explained above, the state appellate court reasonably rejected this claim 3 when it determined that “[t]here was not a reasonable likelihood that the jury applied CALJIC No. 4 4.7.151 in the manner espoused by [Petitioner].” Silva, 2017 WL 1229745, at *3. The state 5 appellate court noted that it could not judge CALJIC No. 4.71.5 in “artificial isolation” and must 6 instead view the challenged instruction “in the context of the overall charge.” Id. The state 7 appellate court pointed out that Petitioner focused on a single phrase—“act or acts”—in CALJIC 8 No. 4.71.5 to suggest that the phrase “places ‘act,’ singular, and ‘acts,’ plural, on an equal 9 footing,” and thus he argued that it “conveys the erroneous impression that it is sufficient for the 10 jury to agree unanimously on only a single act in order to find [him] guilty on all charges the 11 jury.” Id. However, the state appellate court found that the combination of CALJIC No. 4.71.5 12 and CALJIC No. 17.02, which specifically required the jury to decide each count separately, 13 “adequately informed the jury that it needed to reach unanimous agreement on five separate 14 crimes.” Id. 15 Habeas relief is not warranted on this issue. First, due process does not require that the 16 jury agree as to the specific acts that constituted commission of the crimes charged. The Supreme 17 Court has held that “different jurors may be persuaded by different pieces of evidence, even when 18 they agree upon the bottom line. Plainly there is no general requirement that the jury reach 19 agreement on the preliminary factual issues which underlie the verdict.” McKoy v. North 20 Carolina, 494 U.S. 433, 449 (1990) (Blackman, J, concurring) (footnotes omitted); see also Schad 21 v. Arizona, 501 U.S. 624, 631-32 (1991) (rule that jurors not required to agree upon single means 22 of commission of crime, citing McKoy, applies equally to contention they must agree on one of the 23 alternative means of satisfying mental state element of crime). Furthermore, the state appellate 24 court’s rejection of this claim was not unreasonable because CALJIC No. 4.71.5 cannot 25 reasonably be read to support Petitioner’s claim, especially in light of the instructions as a 26 whole—including CALJIC No. 17.02, which directed the jury that it needed to find a distinct 27 separate crime for each of the five counts. Silva, 2017 WL 1229745, at *3. This Court must 1 (1987). Finally, the Court points out that neither the prosecutor nor defense counsel suggested in 2 closing argument that the jurors could find Petitioner guilty of all five charges if they agreed he 3 had committed only one act. Therefore, the state appellate court’s rejection of Petitioner’s 4 challenge to CALJIC No. 4.71.5 was reasonable and is entitled to AEDPA deference. 5 Accordingly, this claim is DENIED. 6 2. Failure to Give General-Testimony Unanimity Instruction 7 Petitioner also claims the trial court denied him due process when it failed to instruct the 8 jury on the principle of generic-testimony unanimity announced in People v. Jones. Dkt. 1 at 5. 9 Although criminal defendants in state court have no federal constitutional right to a 10 unanimous jury verdict, Apodaca v. Oregon, 406 U.S. 404, 406 (1972), California requires that a 11 criminal conviction be secured by a unanimous jury. Cal. Const. art. I, § 16. The California 12 Supreme Court stated the jury should be given a unanimity instruction when, as here, “there is no 13 reasonable likelihood of juror disagreement as to particular acts, and the only question is whether 14 or not [Petitioner] in fact committed all of them . . . .” Jones, 51 Cal. 3d at 321-22. Such a 15 situation was present in the instant matter, but the state appellate court found any error in the trial 16 court’s failure to give a generic-testimony unanimity instruction was harmless error. Silva, 2017 17 WL 1229745, at *4. 18 A California trial court’s failure to give a unanimity instruction when appropriate may 19 therefore raise a ground cognizable in federal habeas corpus if it so infected the trial that a 20 petitioner was thereby deprived of a fair trial guaranteed by the Fourteenth Amendment. See 21 Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). However, this Court finds that the trial 22 court’s failure to provide a unanimity instruction cannot be said to have deprived Petitioner of a 23 fair trial such that it was a constitutional violation of due process. To amount to a constitutional 24 violation, the instruction error must have a “substantial and injurious effect or influence in 25 determining the jury’s verdict.”4 See Brecht, 507 U.S. at 637 (quoting Kotteakos v. U.S., 328 U.S. 26 4 This Court finds unavailing Petitioner’s argument that the error was of constitutional 27 magnitude and that prejudice should be assessed under the standard of Chapman v. California, 1 750, 776 (1946)). Petitioner’s argument is without merit. Here, when the case was presented to 2 the jurors, they either could have found Victoria Doe credible and believed her testimony in its 3 entirety, or they could have accepted Petitioner’s categorical denial of any molestation. Defense 4 counsel acknowledged that the case “really does boil down to whether you can believe the 5 accusations made by Victoria.” 7 RT 575. Thus, as the state appellate court noted, this case 6 “required the jury to resolve a credibility dispute.” Silva, 2017 WL 1229745, at *4. It therefore 7 seems that the jury was presented with an all-or-nothing situation in which they were required to 8 determine whether the victim or Petitioner was lying. As discussed above, Victoria Doe testified 9 about Petitioner’s sexual misconduct and specific events over a three-month period. Moreover, 10 the prosecutor emphasized that Petitioner was charged with five counts of child molestation and 11 that the jurors must “all agree in the end, too, that there are at least five acts that occurred over a 12 period of, in this case, three months.” 7 RT 550, 553 (emphasis added). Finally, the evidence of 13 Petitioner’s guilt was compelling and included Petitioner’s incriminating statements in the pretext 14 phone call. In light of Petitioner’s outright denial of all the allegations of sexual misconduct, 15 coupled with the evidence presented at trial and the fact that the jury convicted Petitioner of all the 16 counts charged, the Court cannot say that the trial court’s failure to give a generic-testimony 17 unanimity instruction had a substantial and injurious effect or influence on the jury’s verdict. See 18 Brecht, 507 U.S. at 637. Therefore, the Court finds reasonable the state appellate court’s 19 determination that the failure to give a generic-testimony unanimity instruction was harmless 20 error. See Davis v. Ayala, __ U.S. __, 135 S. Ct. 2187, 2199 (2015) (Whether an error is harmless 21 is determined by the Brecht standard.). Accordingly, Petitioner’s claim that the trial court violated 22 his rights to due process in this respect is also DENIED. 23 V. CERTIFICATE OF APPEALABILITY 24 No certificate of appealability is warranted in this case. For the reasons set out above, 25 jurists of reason would not find this Court’s denial of Petitioner’s claims debatable or wrong. See 26 F.3d 855, 864 (9th Cir. 2009) (emphasis in original) (citing Hedgpeth v. Pulido, 555 U.S. 57 27 (2008), and Neder v. United States, 527 U.S. 1 (1999)). And the Supreme Court has made clear 1 Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner may not appeal the denial of a Certificate 2 || of Appealability in this Court but may seek a certificate from the Ninth Circuit under Rule 22 of 3 the Federal Rules of Appellate Procedure. See Rule 11(a) of the Rules Governing Section 2254 4 || Cases. 5 || VI. CONCLUSION 6 For the reasons outlined above, the Court orders as follows: 7 1. All claims from the petition are DENIED, and a certificate of appealability will not 8 issue. Petitioner may seek a certificate of appealability from the Ninth Circuit Court of Appeals. 9 2. The Clerk of the Court shall terminate any pending motions and close the file. 10 IT IS SO ORDERED. 11 Dated: September 25, 2019

13 VONNE GONZALEZ ROGERS 14 United States District Judge 15 16

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