1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHN JAMES VAN DRUTEN, Case No.: 3:21-cv-00555-BEN (NLS)
12 Petitioner, REPORT AND 13 v. RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: 14 NEIL MCDOWELL, Warden, DENYING PETITION FOR WRIT Ironwood State Prison 15 OF HABEAS CORPUS Respondent. 16 [ECF No. 1] 17 18 I. INTRODUCTION 19 Petitioner John James Van Druten (“Petitioner”), a state prisoner, has filed a 20 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his San 21 Diego Superior Court conviction for six counts of lewd acts upon a child and two counts 22 of child molestation, in case number SCS293976. (ECF No. 1 at 2.) Respondent filed an 23 answer, arguing that Petitioner’s petition fails on the merits, and lodged the state court 24 records. (ECF No. 6 (“Lodgment”); ECF No. 7.) Petitioner then filed a traverse. (ECF 25 No. 8.) After reviewing the parties’ submissions and the lodgments, and for the reasons 26 discussed below, the Court RECOMMENDS the petition be DENIED. 27 /// 28 /// 1 II. FACTUAL BACKGROUND 2 The following facts are taken from the California Court of Appeal opinion:1
3 After spending several years in Arizona during his military service, G. 4 moved back to San Diego with his wife, S., and their children: four-year-old daughter, A. (the victim), and a two-year-old son. In August 2016, they 5 moved into a combined family home with G.’s mother, and S.’s mother and 6 father (Van Druten). Eight months later, in April 2017, as S. was getting the children showered before bedtime, A. told S. that Van Druten (whom A. 7 called “grandpa”) had shown her his “canar[y],” and it “is pink.” A. also said 8 that grandpa had shown her a video of “a boy with white pee going into a lady’s mouth.” S. asked A. if grandpa had touched her, and she said no. S. 9 asked if A. had touched grandpa, and initially A. said no. However, after S. 10 gave A. a hug and told her it was a good thing that A. told her these things, A. said, “maybe [she had] lied, maybe . . . [she] did touch him.” 11
12 S. confronted Van Druten, who immediately apologized and said “it will never happen again.” He denied touching A. and denied that A. touched 13 him. S. and G. filed a police report. Several days later, Van Druten sent S. an 14 email with the subject line, “My asking for forgiveness,” which stated:
15 “I write this knowing that I have wronged your family, and I 16 truly am so very sorry. I really need some help for my problem, and I am sure that you’re all angry. If I could find a highly 17 recommended place for sexual addiction, I would welcome that 18 as a beginning event for help. God forgives all sinners, and I have prayed much in the past few days. I am a Christian that 19 sinned. Lord heal us. 20 Bills are coming due soon. I am willing to pay my share as long 21 as I work. Mom could help you with that. I know you have 22 many decisions, like will you stay at [the home.] I know that I have lost my rights to you and your family. That is a big price 23 to pay. 24
25 1 This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 26 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from those facts, are 27 entitled to statutory presumption of correctness). Here, Petitioner’s sole argument in his petition is that 28 the trial court erred in admitting one piece of evidence. Thus, he does not raise a direct challenge to any 1 I know that my life is in danger, but I hope that feeling 2 diminishes. I will not come near the home. I promise you that. 3 I have made many steps to repent to God and ask him for 4 forgiveness. Your family may not, but I do pray for that. 5 You may wish to see me suffer. I understand that. 6
7 I don’t want to be incarcerated. I want to keep working. And if you sell the house, I am willing to let you keep all the equity 8 while I keep working, stay away from your family, and start 9 anew with your mother.
10 I need help with this. You’re a Christian. We are all sinners. I 11 want help to fix me. I have never done something like this before. I need someone who specializes in this to dig deep and 12 really help me. 13 Help me, please. I need to fix myself. . . . John” 14
15 Forensic Interview
16 Police investigators arranged a forensic interview of A. at the local 17 children’s hospital. A., five years old at the time, told the forensic interviewer that her grandpa locked the door when they were in the 18 bathroom, “showed out his, his bird,” and “did this,” gesturing as if she were 19 masturbating a penis. She said he was lying down on the floor in the bathroom while this occurred and “white stuff came out and went on his 20 belly.” A. described “the white stuff” as looking “like milk.” She said her 21 grandpa told her “it was sticky.” She said, "He said it was fun, but it wasn’t fun for me. [¶] . . . [¶] [I]t was bad for me.” She said, “he would do [it] like 22 every day.” A. said, “my grandpa tells me I have to keep it a secret from my 23 mom and dad,” but that she did not keep it a secret because it is “good” “to tell the truth.” 24
25 A. told the forensic interviewer grandpa wants her to touch his “bird” a lot and “sometimes” she touched it “a little.” Pointing to her groin, she 26 said, “This keeps my grandpa warm, and his bird makes me warm. [¶] . . . 27 [¶] [B]ut I don’t like that.” She said this happened “because I put it on my grandpa’s bird, but with his pants on and mine,” and then “we hug.” 28 1 2 A. said that grandpa “likes touching his bird, and he likes doing it,” and “he also does it on his bed.” A. said that she knows grandpa “likes [her] 3 vagina” because “he told me.” 4 A. described an incident where she pulled her pants down and 5 “touched his bird again.” “And then he did this again,” she said, gesturing as 6 if masturbating a penis, and “then he rinsed it off with water.” A. said she pulled her pants down “[b]ecause he just wanted to see it,” and he “said that 7 it looks pretty.” 8 A. said these things happened in her grandpa’s bedroom and bathroom 9 during the day while her mom and dad were at work, and her grandma was 10 downstairs.
11 A. described an incident where her grandpa “went pee and I, and I had 12 to hold it, my grandpa said.” She said, “I had to hold his bird . . . .” while he “went pee” “[i]n the toilet.” She said she “swished it around.” Another time, 13 she said, “his water didn’t work anymore, so he went in the tub.” 14 A. said she locked the door when she was in grandpa’s room. She said 15 she liked going in grandpa’s room because he had snacks, like chips, 16 pretzels, doughnuts, chocolate raisins, and marshmallows.
17 A. initially denied having seen movies with people without clothes, 18 but later told the interviewer that her grandpa used his tablet to show her “yucky movies” “about what he does.” She said the movies had “boys and 19 girls” and "the guys were, were putting their bird into the girl." When asked 20 what part of the girl, A. gestured to her groin.
21 Trial 22 S. (Mother)
23 At trial, S. recounted for the jury A.’s disclosure regarding grandpa’s 24 “canary” and read the email Van Druten had sent. She also recounted an incident that occurred in the shared family home some time prior to the 25 “canary” discussion. She was with her husband when she overheard Van 26 Druten tell A., “don't forget our secret.” After Van Druten left the room, her husband approached A. and asked what secret they were talking about. A. 27 referenced “the candy, the chocolate that [she] ate.” S. said this made sense 28 1 aret ctehnet tliym hea db edceanutsael iAss. uweas.s not supposed to be consuming candy as she 2
3 S. testified that, when she came home from work, A. would 4 sometimes be in Van Druten’s room. This occurred “less than half the time.”
5 S. also recounted an incident that occurred when she was five years old. She recalled being in Van Druten’s bedroom while pornography played 6 on the television. She recalled touching the tip of his erect penis, which was 7 protruding from his shorts or underwear, and there was a liquid substance there. She did not recall whether he asked her to do that. She recalled 8 rushing to the bathroom, washing her hands, wiping them off, and leaving 9 the room. As a teenager, S. had disclosed the incident to G., her boyfriend at the time. When she was 22, she and G. confronted Van Druten regarding the 10 incident while her mother was present, but her mother “was distracted” and 11 “there was not a reaction out of them.”
12 A. (Victim)
13 A., now six years old, testified at trial. She said that Van Druten had 14 shown her his “bird” “more than once,” but she had never touched it. He only showed her his bird when everybody else was in a different room. It 15 made her feel “gross” when he would show it to her. 16 She testified she had seen “white stuff” come out of his “bird”; 17 afterward “he would just wipe it off.” She also testified that he showed her a 18 video on a tablet; she saw “white stuff come out of the boy's birds and into the girl's mouths.” It made her feel “gross.” 19
20 She testified that grandpa did not touch her vagina and that she did not recall previously testifying that she said he had. She did not recall whether 21 she had held his “bird” while he went “pee.” She did not recall telling her 22 mother that grandpa's “canary” is pink.
23 A. did recall Van Druten telling her not to tell her parents, but she did 24 not recall what he would say when he told her not to tell her parents. The following exchange occurred: 25
26 “Q. What made you think that he didn't want you to tell your mom or your dad? 27 A. Because every time when he did it, he closed the door. 28 Q. And that would be because he didn’t want anyone to see? 1 AQ.. YOkesa.y . [A], what would he do? Can you tell us the truth and 2 tell us what he would do when he would close the door? 3 A. Yes. Q. What would he do? 4 A. He would do gross stuff. 5 When asked what she meant by “gross stuff,” A. testified that “he would, 6 like, always— he would—he would—he would tell me to pee on him,” and 7 that she did that one time, in his bathroom. She testified she did not remember what other bad things grandpa did with her. 8
9 Portions of A.’s testimony at a prior hearing were read for the jury. In prior testimony, A. described how grandpa would do “bad stuff” in his 10 bedroom—that he wanted her to touch his “bird,” which meant penis, and 11 that she did touch grandpa's bird with her hand more than once. She did not want to touch it, but she felt that she had to. She would hold her hand still. 12 Grandpa would tell her he wanted her to “touch his bird”; this happened in 13 the bathroom. Grandpa also touched his own bird in the bathroom, when he was standing up and lying down. 14
15 More than once A. saw “white stuff” come out of grandpa's bird and go “on his belly”; he would wash it off in the sink. More than once A. held 16 grandpa’s “bird” when he was “going pee” in the toilet. More than once 17 grandpa’s hand touched A.’s vagina. This happened when A. had clothes on and when she had clothes off. More than once he told her, “I like your 18 vagina.” Sometimes grandpa asked to see her go to the bathroom and 19 watched her go to the bathroom.
20 Sometimes grandpa would show her movies on his phone where the 21 people had no clothes. This happened when she was on his bed with him. A. testified the people were “[d]oing the same thing that me and my grandpa 22 did”—“me touching his bird.” More than once, grandpa kissed her on her 23 lips when she was in his bedroom.
24 She denied kissing grandpa in the bathroom, denied kissing his bird, 25 and denied he put his “bird” in her vagina. He told her to keep it a secret, and she did, but then she told her mom, and then she told her dad. 26
27 //
28 1 G . (Father) 2 G. testified that, when they were teenagers, S. confided that, when she 3 was five years old, “her father was watching pornography around her and he had his penis out and she actually touched it.” He testified that, years later, 4 he thought everything was different. He did not think to take precautions 5 before moving his family into the same house as Van Druten because he “was fooled by God.” He explained that Van Druten “went to church and 6 made it seem like it would be an okay thing to do.” 7 After he learned what had happened to A., G. was able to 8 retrospectively identify “red flags,” including how, when he came home 9 from work, A. would be in Van Druten’s room with the door closed, and how Van Druten would take A. out, “just them two,” and buy her toys—“so 10 many toys.” G. testified he once overheard Van Druten whisper to A., 11 “Remember our little secret.” G. waited until Van Druten left the room and asked A. what the secret was. A. initially denied having a secret and then 12 said the secret was that her grandfather had given her a chocolate, which she 13 was not supposed to eat.
14 Forensic Interviewer 15 The forensic interviewer testified and a video of A.’s forensic 16 interview was played for the jury. 17 Dr. Jayme Jones 18
19 Dr. Jayme Jones, a doctor of clinical psychology, testified regarding myths and misconceptions surrounding child abuse, including disclosure and 20 reporting by victims in child molest cases. Dr. Jones testified that not all 21 children disclose during their first forensic interview and may need second or third interviews to make disclosures. She noted that most people never 22 disclose sexual abuse at all. Children are even less likely to disclose when 23 the abuser lives in the same home, because there is a sense of dependency on that person and concern for other people affected by the disclosure. 24
25 Dr. Jones testified that when children decide to disclose, they normally disclose to a friend or family member. Children display a vast 26 range of behaviors and emotions when disclosing abuse, from the “looking 27 like a mannequin with no emotions disclosure to sobbing and hysterical to running around the room.” A child may disclose one piece of information to 28 1 othneei ra cdoumlt faonrdt laenvoetlh aenrd p iwehcea to qfu iensftoiromnsa taioren atsok aendo. tAhe crh aidldu lmt, adye palesnod dinisgc olons e 2 incrementally, meaning she might “test[] the waters” and say a little bit 3 about what happened, and depending on the reaction, she may or may not say more. A five- or six-year-old child may tell the story a different way 4 each time. 5 Dr. Jones testified that children who are molested by people they have 6 relationships with, like family members, teachers, or other adults, tend not to 7 disclose immediately because the abuse happens in a relationship where the child has both positive and negative experiences, complicating things and 8 creating a dilemma for the child. 9 Delayed disclosure also occurs when children feel responsible for the 10 abuse. The longer the child does not talk about it, the more the child may 11 feel responsible and guilty. The child may also feel shame or embarrassment. 12
13 That the abuse happens in secrecy sends a message that the child is not supposed to talk about it. And when the abuser explicitly tells the child 14 to keep it a secret, disclosure is even less likely. Many children between the 15 ages of four and seven do not understand that they are being molested as it is happening and only realize it as they learn about sexual norms or child 16 abuse, often as teenagers. 17 Children between the ages of five and six may repress memories of 18 abuse by not actively thinking about them or not fully encoding the 19 memories because they are in shock. A person molested at a young age may be able to put the memory out of his or her mind for a time only to have 20 something trigger it later in life. 21 Dr. Jones acknowledged generational molest and indicated it is not 22 uncommon for people who molested children, nieces, or nephews to then 23 molest grandchildren, great nieces, or great nephews. She explained that if no one discloses, the abuse may continue. A child molested by a family 24 member may later want to reestablish a relationship with the abuser as an 25 adult, hoping that the positive aspects of the relationship can be rekindled without the negative parts being there. 26
27 Dr. Jones testified that the concept of “grooming” refers to a child molester taking small steps to build a relationship and gain trust with the 28 1 cehxialmd,p alne do fth gerno otom iinntgro ids uucsein sge xpuoarln obgehraapvhioyr sto i nn oar smuabltilzee m seaxn naenrd. Aton s uggest 2 to children this is what relationships look like. 3 Dr. Jones testified that five- and six-year-old children are unable to 4 remember details like dates, times, or frequency of the abuse. A child who 5 discloses sexual abuse may recant or retract her allegation of abuse for a variety of reasons, but usually with the goal of removing a negative 6 consequence to the disclosure. Or, a child may say something did not happen 7 and then later say it did, because a child’s comfort and willingness to talk at a particular moment, or with a particular audience, will vary. To get a child 8 to provide specific information about the abuse, an interviewer will probably 9 have to ask follow-up questions.
10 Dr. Jones testified that she had not interviewed A. or anyone else 11 involved in the case. She had not read any of the police reports and did not know anything about the facts of this case. She was only testifying about 12 child molest victims in general. 13 Van Druten 14
15 Van Druten testified that he was blind in one eye. His bathroom, which has a locking door, is just off his bedroom. One day, he was in his 16 bathroom with the door shut, but not locked, while watching pornography on 17 his tablet computer and masturbating. He noticed A. was there watching him. He had not seen the door open because of his lack of peripheral vision 18 due to the blind eye. He testified he was “completing it,” and “the white 19 stuff [wa]s coming out the top,” and he was “sort of surprised.” He stated:
20 “But I didn’t kick her out of the room because I wanted to get 21 up and clean myself off as fast as possible. So I cleaned myself off in the sink, zipped my pants back up, and I tried to explain 22 to her what was going on as easy as possible without getting 23 complex about it. She probably saw one of the videos too because I turned around, and she seen a video of what was 24 described as unclothed people doing things that should not be 25 seen by little kids.”
26 Van Druten testified this happened the same day S. confronted him 27 about what A. told her, and he thought she was referring to the masturbation. He testified he told S., “Your daughter caught me masturbating this 28 1 aafntyetrhnionogn e. vI edri dhnap’tp teonuecdh. ”h er. She didn’t touch me, and that’s the only time 2
3 Van Druten testified that he never touched A. inappropriately and never showed her pornographic videos other than this one, accidental time. 4 A. was his first grandchild, and he would give her sweets, play with her, or 5 do things like take her to the dentist.
6 Van Druten denied the incident involving S. occurred and denied S. 7 ever confronted him or his wife about it. He testified the apologetic email referred to his “lifetime habit” of masturbation. 8
9 (Lodgment No. 13 at 2-13.) After an independent review of the trial record, the Court 10 concludes that the California Court of Appeal’s opinion represents an accurate summary 11 of the record. 12 III. PROCEDURAL BACKGROUND 13 A. Trial Court Proceedings 14 Petitioner was initially charged on June 9, 2017. (Lodgment No. 1 at 10.) On 15 November 27, 2017, information filed “alleged eight counts of committing a lewd act on 16 a child (§ 288. subd. (a)), each with a special allegation that the defendant had substantial 17 sexual conduct with a child under age 14 (§ 1203.066, subd. (a)(8)).” (Id. at 29-33; 18 Lodgment No. 13 at 7.) Petitioner was also charged with “two misdemeanor counts of 19 child molest (§ 647.6, subd. (a)(1)).” (Id.) 20 On August 10, 2018, a jury found Petitioner guilty on six counts of lewd acts upon 21 a child and two counts of child molesting.2 (Lodgment No. 2 at 42-50.) On September 22 20, 2018, the trial court sentenced Petitioner to a total of 18 years in state prison. 23 (Lodgment No. 1 at 258; Lodgment No. 2 at 53-54.) Petitioner’s sentence was comprised 24 of an upper term of eight years on count 1; one-third the middle term of two years on 25 counts 2 through 6, consecutive; and 365 days on counts 9 and 10, concurrent. (Id.) 26 // 27 28 1 B. Direct Appeal 2 On September 18, 2018, Petitioner filed for appeal. (Lodgment No. 1 at 256.) In 3 his direct appeal, Petitioner raised several issues, including the issue he raises in the 4 instant habeas petition. Specifically, Petitioner argued that “[t]he trial court abused its 5 discretion and violated [his] rights to due process and a fair trial when it admitted 6 Shannon’s testimony about the prior incident under evidence code section 1108.” 7 (Lodgment No. 10 at 26.) Petitioner stated that Shannon’s testimony was inadmissible 8 under Evidence Code (“EC”) section 1108 because the prior act did not amount to a 9 “sexual offence,” and the evidence should have been excluded under EC section 352.3 10 (Id.) 11 On October 4, 2019, the California Court of Appeals issued an opinion affirming 12 the judgment of the Superior Court. (Lodgment No. 13 at 46.) The court rejected 13 Petitioner’s argument regarding the prior act evidence involving Shannon, under EC 14 section 1108, stating that there was sufficient evidence for the jury to conclude that 15 Petitioner “committed a ‘sexual offense’ against [Shannon] by violating Penal Code 16 section 647.6 and Penal Code section 288.” (Id. at 21, 24.) The court further held that 17 the trial court properly admitted Shannon’s testimony under EC section 352 because “the 18 evidence was probative of Van Druten’s propensity to molest and commit lewd acts on a 19 child.” (Id. at 24.) Further, the evidence was not particularly inflammatory, did not take 20 up undue amount of time, and was not confusing. (Id.) The jury instructions ameliorated 21 any risk of the jury being tempted to convict Van Druten for the prior act. (Id.) 22 Moreover, the court held that even if admitting the prior act evidence was an error, it was 23
24 3 Petitioner also raised several claims not included in his habeas petition: (1) “[t]he trial 25 court erred and violated [his] Fifth, Sixth, and Fourteenth Amendment rights when it allowed Jayme Jones to testify regarding child sexual abuse because the testimony was 26 inadmissible and irrelevant and any probative value was outweighed by its prejudicial 27 impact;” (2) “the trial court erred by failing to give any limiting instruction to the jury regarding how to use Jones’ testimony;” and (3) that the trial court abused its discretion 28 1 harmless because A’s statements to her mother and during the forensic interview, as well 2 as Van Druten’s email, “were overwhelming evidence of Van Druten’s guilt.” (Id. at 25- 3 26.) 4 On November 12, 2019, Petitioner sought review from the California Supreme 5 Court. (Lodgment No. 14 at 2, 87.) On review, Petitioner presented the same issues that 6 he had raised with the California Court of Appeal. (See Lodgment No. 13.) On January 7 2, 2020, the California Supreme Court denied Petitioner’s petition for review without 8 further comment. (Lodgment No. 15.) 9 C. Federal Habeas Proceedings 10 On March 30, 2021, Petitioner filed the instant federal petition for writ of habeas 11 corpus in this Court. (ECF No. 1.) 12 IV. STANDARD OF REVIEW 13 This petition is governed by the provisions of the Antiterrorism and Effective 14 Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997). 15 Under AEDPA, a habeas petition will not be granted unless the adjudication: “(1) 16 resulted in a decision that was contrary to, or involved an unreasonable application of 17 clearly established federal law,” 28 U.S.C. § 2254(d)(1), “or (2) resulted in a decision 18 that was based on an unreasonable determination of the facts in light of the evidence 19 presented at the state court proceeding.” 28 U.S.C. § 2254(d)(2); Early v. Packer, 537 20 U.S. 3, 8 (2002) (quoting 28 U.S.C. §2254(d)(1); § 2254(d)(2)). 21 A federal court is not called upon to decide whether it agrees with the state court’s 22 determination; rather, the court applies a very deferential review, inquiring only whether 23 the state court’s decision was “objectively unreasonable.” See Yarborough v. Gentry, 24 540 U.S. 1, 5 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). “A federal 25 habeas court may issue the writ under the ‘contrary to’ clause if the state court applied a 26 rule different from the governing law set forth in [Supreme Court] cases, or if it decide[d] 27 a case differently than [the Supreme Court] ha[s] done on a set of materially 28 indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002) (citing Williams v. 1 Taylor, 529 U.S. 362, 405-06 (2000)). A state court is not required to cite Supreme Court 2 precedent when resolving a habeas corpus claim, “so long as neither the reasoning nor the 3 result of the state-court decision contradicts them.” See Early, 537 U.S. at 8. For 4 purposes of § 2254(d), clearly established federal law, means “the governing principle or 5 principles set forth by the Supreme Court at the time the state court renders its decision.” 6 Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003) (citing Williams, 529 U.S. at 405, 413). 7 “The court may grant relief under the ‘unreasonable application’ clause if the state 8 court correctly identifie[d] the governing legal principle from [Supreme Court] decisions 9 but unreasonably applie[d] it to the facts of the particular case.” Bell, 535 U.S. at 694 10 (citing Williams, 529 U.S. at 407-08). To meet the “unreasonable application” standard, 11 a “state court’s decision [must] be more than incorrect or erroneous.” Lockyer 538 U.S. at 12 75 (citing Williams, 529 U.S. at 410, 412). Further, a federal court reviewing a habeas 13 petition “must determine what arguments or theories supported, or . . . could have 14 supported, the state-court decision; and then it must ask whether it is possible fairminded 15 jurists could disagree that those arguments or theories are inconsistent with the holding in 16 a prior decision of [the Supreme Court].” Harrington v. Richter, 562 U.S. 86, 102 17 (2011). This is an extremely deferential review and imposes a heavy burden on the 18 Petitioner to prove that the state court’s ruling on the claim was “so lacking in 19 justification that there was an error well understood and comprehended in existing law 20 beyond any possibility for fairminded disagreement.” Id. at 103. 21 To determine if “a decision was based on an unreasonable determination of the 22 facts in light of the evidence presented,” the state court’s factual findings “are presumed 23 correct absent clear and convincing evidence to the contrary.” Miller-El v. Cockrell, 537 24 U.S. 322, 340 (2003) (citing 28 U.S.C. 2254(e)(1)). A state court’s decision “will not be 25 overturned on factual grounds unless” its factual determinations were “objectively 26 unreasonable in light of the evidence presented in state court.” Miller-El v. Cockrell, 537 27 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(d)(2)); 28 U.S.C. § 2254(d)(2); see also 28 Rice v. Collins, 546 U.S. 333, 341-42 (2006) (the fact that “[r]easonable minds reviewing 1 the record might disagree” does not render a decision objectively unreasonable). Federal 2 habeas court must consider all evidence “in the light most favorable to the prosecution.” 3 See Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). To grant relief under § 4 2254(d)(2), a federal court “must be convinced that an appellate panel, applying the 5 normal standards of appellate review, could not reasonably conclude that the finding is 6 supported by the record.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004) (citing 7 Lockyer v. Andrade, 538 U.S. at 75) overruled on other grounds by Murray v. Schirro, 8 745 F.3d 984, 999-1000 (9th Cir. 2014), as recognized in Kirkpatrick v. Chappell, 926 9 F.3d 1157, 1170 n.3 (9th Cir. 2019). 10 When state’s highest court does not provide a reasoned decision, the Court “look[s] 11 through” it to the underlying appellate court decision and presumes that the higher court’s 12 “unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 13 1192 (2018); see also Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1996). Although not 14 entitled to perform a de novo review, if the dispositive state court does not “furnish a 15 basis for its reasoning,” federal habeas courts must conduct “an independent review of 16 the record . . . to determine whether the state court clearly erred in its application of 17 controlling federal law.” Delgado v. Lewis, 223 F.3d 976, 981, 982 (9th Cir. 2000) 18 (citing Tran v. Lindsey, 212 F.3d 1143, 1153 (9th Cir. 2000)), overruled on other grounds 19 by Lockyer, 538 U.S. at 75-76; accord Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 20 2003) (citing Delgado, 223 F.3d at 982). 21 V. DISCUSSION 22 In this federal habeas petition, the only argument Petitioner makes is that “[t]he trial 23 court’s decision to admit [Shannon’s] testimony regarding an alleged prior incident under 24 [EC] section 1108 rendered [P]etitioner’s trial fundamentally unfair, and the California 25 Court of Appeal’s rejection of this claim resulted in a decision that was based on an 26 unreasonable determination of the facts” under 28 U.S.C. § 2254(d)(2).4 (ECF No. 1-2 as 27
28 4 Respondent addresses various reasons for denying Petitioner’s petition, including issues arising under 1 2, at 7-8, 14.) 2 A. Due Process Violation and Analysis Under Sections 1108 and 352 3 EC section 1108 states, “[i]n a criminal action in which the defendant is accused of 4 a sexual offense, evidence of the defendant’s commission of another sexual offense or 5 offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible 6 pursuant to Section 352.” Cal. Evid. Code § 1108. Petitioner argues that admission of 7 Shannon’s testimony under this code section denied him due process because it “so 8 grossly distorted the focus of the trial.” (ECF No. 1-2 at 18-19.) 9 However, the California Supreme Court has held that EC section 1108 does not 10 violate defendant’s constitutional rights to due process. People v. Falsetta, 21 Cal. 4th 11 903, 916 (1999). The Court explained the legislative reason behind section 1108: “By 12 their very nature, sex crimes are usually committed in seclusion without third party 13 witnesses or substantial corroborating evidence. The ensuing trial often presents 14 conflicting versions of the event and requires the trier of fact to make difficult credibility 15 determinations. Section 1108 provides the trier of fact in a sex offense case the 16 opportunity to learn of the defendant's possible disposition to commit sex crimes.” Id. at 17 915. 18 Moreover, Section 1108 gives the court discretion to exclude evidence under 19 section 352, “if its probative value is substantially outweighed by the probability that its 20 admission will (a) necessitate undue consumption of time or (b) create substantial danger 21 of undue prejudice, of confusing the issues, or of misleading the jury." Id. (citing Cal. 22 Evid. Code. § 352). Section 352 also provides a safeguard against possible undue 23 prejudice from admitting defendant’s previous offenses. Id. at 915 (“[I]n light of the 24 substantial protections afforded to defendants in all cases to which section 1108 applies, 25 we see no undue unfairness in its limited exception to the historical rule against 26 under § 2254(d)(1) in his petition, and any argument not raised in the petition is considered waived. See 27 Degracia v. United States, 2008 U.S. Dist. LEXIS 81793, at *6 (S.D. Cal. Oct. 15, 2008); Cooper v. 28 Calderon, 255 F.3d 1104, 1110 (9th Cir. 2001). Thus, the Court will not address this alternate prong for 1 propensity evidence.”). “By reason of section 1108, trial courts may no longer deem 2 ‘propensity’ evidence unduly prejudicial per se, but must engage in careful weighing 3 process under section 352.” Id. at 916-17. Trial courts shall consider certain factors, 4 such as: 5 [Prior offense’s] nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or 6 distracting the jurors from their main inquiry, its similarity to the charged 7 offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of 8 less prejudicial alternatives to its outright admission, such as admitting some 9 but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. 10 11 Id. at 917. 12 Here, the trial court engaged in a careful section 352 analysis prior to admitting 13 Shannon’s testimony. (See Lodgment No. 4 at 39.) The court concluded that Shannon’s 14 testimony about the prior act was admissible under section 1108 because “[i]t [was] 15 similar conduct, it was not unduly time consuming, and unlikely to confuse or mislead 16 the jury.” Id. The court further stated that even though the conduct was remote in time, 17 according to our precedent (the court cited People v. Waples, 79 Cal. App. 4th 1389 18 (2000)), the conduct was not too remote. Id. The conduct was also “no more 19 inflammatory than the instant offenses.” Id. The California Court of Appeal agreed with 20 the trial’s court assessment of the evidence under sections 352 and 1108. (See Lodgment 21 No. 13 at 24-26.) 22 Further, the Court explained that section 1108 was modeled after Federal Rules of 23 Evidence 413 and 414, which have similarly been upheld by federal courts under 24 constitutional attack. Id. at 921 (citing cases). Those cases held that because the federal 25 rules still require application of Rule 403, the federal equivalent of section 352, “the 26 possible exclusion of unduly prejudicial evidence saves federal rules 413 and 414 from 27 attack on due process grounds.” Id. 28 1 Accordingly, the record does not support Petitioner’s argument that admission of 2 Shannon’s testimony regarding the prior act denied Petitioner due process. 3 B. Permissible Inferences and Similarity of the Two Incidents 4 Petitioner further argues that his due process rights were violated because “no 5 permissible inference could be drawn from Shannon’s testimony.” (ECF No. 1-2 at 19.) 6 Petitioner states, “the only inference actually supported by the evidence was the 7 impermissible inference that Shannon’s testimony regarding petitioner’s actions 25 years 8 earlier was correct and that petitioner was thus the sort of person of bad character who 9 would also have committed the crimes charged against A.” Id. at 20. Petitioner also 10 argues that “[t]he nature of Shannon’s testimony rendered [his] trial fundamentally 11 unfair.” (Id. at 24.) According to Petitioner, the admission of evidence “had a dangerous 12 tendency to prove petitioner’s guilt through an improper inference that he was disposed 13 to committing that crime, and necessarily engendered a desire on the part of the jury to 14 punish petitioner for both incidents.” Id. 15 EC section 1108 specifically allows admission of prior sex crimes, in a sex offense 16 case, to show accused’s “propensity to commit such crimes.” Falsetta, 21 Cal. 4th at 17 907; see Uribe v. Knowles, 2005 U.S. Dist. Lexis 37273, No. C 03-5700 SI (pr) (N.D. 18 Cal. Sept 15, 2005) (stating that evidence of previously committed sexual battery against 19 a minor did not violate petitioner’s due process rights because the jury could draw a 20 permissible inference that petitioner had the propensity to commit sex offenses). This 21 section was enacted by the legislature precisely “to expand the admissibility of 22 disposition or propensity evidence in sex offense cases” and “was intended in sex offense 23 cases to relax the evidentiary restraints section 1101,” the section of the evidence code 24 that generally prohibits propensity evidence. Falsetta, 21 Cal. 4th at 911. As such, 25 “section 1108 implicitly abrogates prior decisions of this court indicating that 26 ‘propensity’ evidence is per se unduly prejudicial to the defense.” Id. Thus, the code 27 section permits the jury to draw a permissible inference from Shannon’s testimony 28 regarding the prior sexual act that Petitioner had propensity to commit such acts. 1 Petitioner next argues that because the two incidents were so dissimilar “no 2 permissible inferences that tended to make ‘any fact of consequence more or less 3 probable’ could have been deducted.” (ECF No. 1-2 at 21.) Petitioner relies on Kipp v. 4 Davis, 971 F.3d 939, 954-955 (9th Cir. 2020), where the Court of Appeal held the 5 admission of the evidence of a prior crime unreasonable under § 2254 (d)(2) because the 6 trial court ignored numerous dissimilarities between the two crimes. Petitioner argues 7 that the Court of Appeal in this case also “ignored the significant differences between the 8 two incidents.” (ECF No. 1-2 at 24.) 9 However, in Kipp, the evidence of a prior crime was not admitted under EC section 10 1108, but under EC section 1101 to show common identity and intent. 971 F.3d at 943. 11 Section 1101 requires the prior act to be very similar to the charged offence to be 12 admissible. See People v. Weathers, 274 Cal. App. 2d 232, 238 (1969) (noting that “[t]o 13 be helpful in establishing identity, the methods used in both crimes must be so similar 14 that it is logical to conclude that the crimes were committed by the same person. This 15 similarity must be shown [by] unique and distinctive features or techniques exhibited by 16 the perpetrator. It is not sufficient to show that the crimes were both of the same type, 17 e.g., both were robberies or both were rapes.”). Thus, in Kipp, the court found that the 18 state court erred by ignoring evidence that the two “crimes were too dissimilar to support 19 an inference of connection by common identity or intent. The state court solely 20 mentioned the similarities between the two crimes, without any acknowledgment of the 21 differences.” 971 F.3d at 955. 22 By contrast, section 1108 is the evidence code at issue here, and it does not have 23 the same similarity requirement for the evidence to be admissible. See People v. Mullens, 24 119 Cal. App. 4th 648 (2004) (stating that because the evidence was probative to prove 25 defendant’s propensity to engage in lewd acts with children under EC section 1108, any 26 dissimilarities between prior incidents and charged offences affected the weight, not the 27 admissibility of the evidence); see also People v. Soto, 64 Cal. App. 4th 966 (1998) 28 (holding the prior incidents admissible, even though they occurred several years before 1 and were not similar to the charged offense, because section 1108 explicitly allowed such 2 propensity evidence in sexual molestation cases). 3 Therefore, because the Court of Appeal found Shannon’s testimony regarding the 4 prior sexual act probative of Petitioner’s propensity to commit lewd acts against children, 5 the state court did not error in not explicitly discussing dissimilarities between the two 6 incidents. 7 C. Nature of Shannon’s Testimony and Limiting Instruction 8 Petitioner additionally argues that the limiting instruction given by the trial court 9 was inadequate to remedy the due process violation because the “evidence of a prior 10 incident involving a child, in a case involving the same type of crime,” was highly 11 inflammatory. ( ECF No. 1-2 at 30.) The Court of Appeal also concluded that the 12 limiting instructions “properly focused the jury on the current charges and the limited 13 manner in which it could consider the evidence of the uncharged sexual offense.” 14 (Lodgment No. 13 at 25.) 15 First, as discussed above, the Court of Appeal agreed with the trial court’s analysis 16 of the evidence under section 352 and concluded that the evidence of a prior act was not 17 more inflammatory than the charged offense. (See Lodgment No. 13 at 24-26.) This 18 Court is required to give deference to this determination. See Yarborough v. Gentry, 540 19 U.S. 1, 5 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). 20 Here, the trial court gave a CALCRIM instruction, CALCRIM No. 1191A 21 Evidence of Uncharged Sex Offense. (See Lodgment No. 1 at 219.) This instruction 22 requires the jury to find by a preponderance of the evidence that the defendant in fact 23 committed uncharged offenses in order to consider that evidence. CALCRIM No. 24 1191A. If this is met, then: 25 [the jury] may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on 26 that decision, also conclude that the defendant was likely to commit and did 27 commit Lewd or Lascivious Act: Child under 14 Years and Child Molesting, as charged here. If you conclude that the defendant committed the uncharged 28 1 oofthfeenr seevsi,d tehnact ec.o Int cilsu nsoiotn s uisf foicnileyn ot nbey fiatscetolfr ttoo pcroonvsei dthera ta tlhoen gd ewfeitnhd aalnl tt hise 2 guilty of Lewd or Lascivious Act: Child under 14 Years and Child 3 Molesting. The People must still prove each charge and allegation beyond a reasonable doubt. 4 5 Id. Courts have upheld use of this instruction as written in cases involving EC section 6 1108. See People v. Gonzales, 16 Cal. App. 5th 494, 501 (2017); Chouest v. Sherman, 7 No. CV 19-7563-SVW (JEM), 2020 WL 10540832, at *12 (C.D. Cal. June 25, 2020), 8 report and recommendation adopted, No. CV 19-7563-SVW (JEM), 2021 WL 3209907 9 (C.D. Cal. July 27, 2021). In addition, we presume “that the jurors understand and follow 10 the court’s instructions.” People v. Edwards, 57 Cal. 4th 658, 746 (2013) (internal 11 citation omitted). 12 Therefore, the Court concludes that the state court did not error in giving this 13 limiting instruction. 14 D. Harmless Error 15 Finally, the Court of Appeal held that any possible error in admitting Shannon’s 16 testimony was harmless because A’s statements to her mother and during the forensic 17 interview, as well as Petitioner’s own email, were overwhelming evidence of his guilt. 18 (Lodgment No. 13 at 25.) The Court agrees that, even if there was any error on the above 19 grounds, the error was harmless. 20 Under the harmless standard applicable on federal habeas review, a constitutional 21 error only warrants habeas relief if the court determines that “the error had substantial 22 and injurious effect or influence in determining the jury’s verdict.” Brecht v. 23 Abrahamson, 507 U.S. 619, 637 (1993) (quoting and adopting harmless error standard 24 created in Kotteakos v. United States, 328 U.S. 750, 776 (1946)). The judge asks 25 directly, “Do I, the judge, think that the error substantially influenced the jury’s 26 decision?” O’Neal v. McAninch, 513 U.S. 432, 436 (1995). If a federal habeas judge is 27 in “grave doubt” about whether a constitutional trial error “had substantial and injurious 28 effect or influence in determining the jury’s verdict,” the error is not harmless and “the 1 petitioner must win.” Id. at 445. However, Petitioners “are not entitled to habeas relief 2 based on trial error unless they can establish that it resulted in actual prejudice.” Brecht, 3 507 U.S. at 637. If a state court has found that a constitutional error was harmless, the 4 federal habeas court must determine whether that finding was objectively unreasonable. 5 Davis v. Ayala, 767 U.S. 257, 269 (2015). In such instances, “the Brecht test subsumes 6 the limitations imposed by AEDPA.” Id. at 270. 7 In this case, there was substantial evidence outside of Shannon’s testimony. The 8 evidence against the Petitioner included A’s pre-trial statements, A’s testimony, Dr. 9 Jones’s testimony, and Petitioner’s own email. The Court of Appeal reasonably held as 10 such. Therefore, any potential error of admitting Shannon’s testimony regarding the prior 11 sexual act did not have a “substantial and injurious effect” in determining the jury’s 12 verdict. The error was harmless. 13 VI. CONCLUSION AND RECOMMENDATION 14 Accordingly, for all of the foregoing reasons, the Court recommends that 15 Petitioner’s habeas petition be DENIED. 16 The Court submits this Report and Recommendation to United States District 17 Judge Roger T. Benitez under 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the 18 United States District Court for the Southern District of California. In addition, IT IS 19 HEREBY RECOMMENDED that the Court issue an Order: (1) approving and adopting 20 this Report and Recommendation, and (2) directing that Judgment be entered DENYING 21 the Petition. 22 IT IS HEREBY ORDERED that any party to this action may file written 23 objections with the Court and serve a copy on all parties no later than August 31, 2022. 24 The document should be captioned “Objections to Report and Recommendation.” 25 // 26 // 27 // 28 // 1 IT IS FURTHER ORDERED that any Reply to the Objections shall be filed with 2 Court and served on all parties no later than September 14, 2022. The parties are 3 || advised that failure to file objections within the specified time may waive the right to 4 ||raise those objections on appeal of the Court’s Order. See Turner v. Duncan, 158 F.3d 5 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1157 (9th Cir. 1991). 6 || Dated: August 17, 2022 : ZO 7 LEE g Hon. Nita L. Stormes 9 United States Magistrate Judge
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