Vasquez v. Koenig

• Court: District Court, N.D. California
• Decided: March 9, 2020
• Docket: 3:19-cv-02950
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ALFREDO M. VASQUEZ, Case No. 19-cv-02950-EMC

8 Plaintiff, ORDER DENYING PETITION FOR A 9 v. WRIT OF HABEAS CORPUS

10 C. KOENIG, 11 Defendant.

12 13 14 INTRODUCTION 15 Alfredo Vasquez, a prisoner currently incarcerated at the Correctional Training Facility in 16 Soledad, filed this pro se action for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 17 Respondent has filed an answer and Mr. Vasquez has not filed a traverse. Mr. Vasquez’s petition 18 is now before the Court for review on the merits. For the reasons discussed below, the petition for 19 writ of habeas corpus will be denied. 20 BACKGROUND 21 Mr. Vasquez was charged in San Mateo Superior Court with lewd and lascivious acts on a 22 child under the age of 14, sodomy with a person under the age of 16, sexual intercourse with a 23 child under the age of 16, oral copulation with a child under the age of 16 and felonious threats. 24 2CT at 468-99. 25 The California Court of Appeal summarized the trial testimony as follows:

26 Jane Doe was born in Guatemala in 1995. Vasquez is her father. Jane lived in Guatemala with her grandparents until 2006 when, at 27 age 11, she moved to California to reside with her parents. When on the living-room floor. Jane would lay on her side, with Vasquez 1 sleeping behind her. At some point, the sleeping arrangements changed. Jane and Vasquez slept in one of the beds in the bedroom, 2 while Jane's mother and two younger siblings slept in the other bed. Since her parents both worked at night as janitors, they usually slept 3 during portions of the day, including during the early-evening hours after dinner before they left for work. 4 On November 9, 2010, Jane skipped school because she “didn’t 5 want to be” there. Instead, she and her boyfriend went to a park for several hours and then spent time together at a mall. Thereafter, she 6 and her boyfriend went to a friend’s house. According to this friend, Jane had been with her boyfriend for several months and really 7 wanted to be with him, despite Vasquez’s objections. Jane had previously disclosed to the friend that her father, Vasquez, had been 8 abusing her. The friend told her mother, who then talked to Jane. After discussing the situation, the police were called. 9 When she was interviewed by the police, Jane disclosed that 10 Vasquez began touching her inappropriately when she was 11 years old. Specifically, he would rub her through her clothes on her butt, 11 vagina, and breasts while they were laying down to sleep in the evenings on the living-room floor. This happened about three or 12 four times when she was 11. According to Jane, Vasquez had intercourse with her for the first time when she was 12. At that 13 time, her mother was attending “baby school” with Jane’s infant sister on Saturdays and Sundays, and Jane believed the first act of 14 intercourse occurred on a weekend while her mother and sister were at this baby school. Thereafter, intercourse continued about three or 15 four times a month. Jane’s mother and sister attended the baby school regularly for about two years. After that, Vasquez continued 16 to have intercourse with her while her mother slept or was in the shower. The last time was about three weeks before she spoke to 17 the police. Jane also remembered painful anal intercourse when she was 14. Initially, this appeared to be ongoing, but later in the police 18 interview she clarified that it had only happened once because she had cried. In addition, Vasquez started putting his penis in Jane's 19 mouth when she was 15. He did this a total of six to ten times. Vasquez also performed oral sex on Jane; she believed this occurred 20 from the time she was 11, although she was not certain.

21 When she was 13, Vasquez told Jane their sexual acts were normal and not wrong. Later, he cautioned her that she should not tell her 22 friends because he could go to jail. Jane did tell her mother that Vasquez “raped” her when she was 13, but her mother did nothing 23 to protect her. According to Jane, Vasquez was adamant that she not have a boyfriend. On the day she disclosed the abuse to her 24 mother, Vasquez had learned she was electronically communicating with a boyfriend and was very angry. He kneed her in the back, 25 slapped her face, gave her a nosebleed, and broke her laptop computer. The week before Jane spoke to the police, Vasquez saw 26 Jane with her current boyfriend at the bus stop and yelled at her, threatening to beat her up. In the end, he slapped her while 27 complaining about the boyfriend. behest of the police. In the second call, she told him she was afraid 1 because a teacher believed she and Vasquez were having sex. Vasquez responded, “Oh[,] don’t be embarrassed[,] let’s see how we 2 can fix that.” He also reminded her he had told her in the past not to say anything. Vasquez additionally stated, “I always asked you if 3 you really loved me or just out of fear.” He further claimed: “[E]verything that happens with you is not by force. No. 4 Everything happens willingly.” Vasquez also urged Jane to return home, stating that he would not harm her, despite his earlier threat to 5 beat or kill her.

6 In an interview with police after he was arrested, Vasquez initially stated the sex happened “maybe once” when Jane was “like 7 fourteen” and was an act of stupidity. He claimed Jane was lying about things starting when she was 11. Vasquez later admitted that 8 the sex happened “once in a while,” starting when Jane was 14 “more or less.” Vasquez specifically admitted that he touched Jane 9 in a sexual way for about six months, then had intercourse with her maybe once a month. He acknowledged two acts of anal sex and 10 also stated Jane would put his penis in her mouth, and he would perform oral sex on her. Vasquez stated this happened because Jane 11 fell in love with him. He admitted that he had recently threatened to kill Jane because she had a boyfriend. 12 As a result of Jane’s disclosures and the ensuing investigation, an 13 amended information was filed in San Mateo County Superior Court on November 13, 2013, charging Vasquez with 36 felony counts of 14 lewd and lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (a)2); one felony count of sodomy with a person under 15 the age of 16 (§ 286, subd. (b)(2)); ten felony counts of sexual intercourse with a child under the age of 16 (§ 261.5, subd (d)); 21 16 felony counts of oral copulation with a child under the age of 16 (former § 288a, subd. (b)(2), now § 287, subd. (b)(2)); and one 17 count of felonious threats (§ 422).

18 During the trial, Jane’s testimony regarding the alleged abuse was both consistent and inconsistent with her earlier police interview. 19 For instance, Jane continued to maintain the lewd touching began when she was 11, but stated it went on three or four times a month 20 until she was 15. Jane confirmed intercourse began when she was 12 and happened three to four times a month thereafter. However, 21 she testified that, after the first time, intercourse happened in the evenings when she was 12 and 13 and stated she did not remember 22 whether her mother was attending baby school after the first occurrence. According to Jane’s trial testimony, the first incident of 23 anal intercourse happened when she was 13 (not 14, as stated during her interview), and the episode with the broken computer happened 24 about six weeks before she disclosed the abuse to the police (not on the day she disclosed to her mother, as she had told the police). Jane 25 also testified at trial that Vasquez never threatened to hurt her.

26 Jane’s brother and sister testified at trial about the family's living arrangements. Her brother did not think the sex happened. Her 27 sister testified she never saw Vasquez alone with Jane. Jane’s children with special needs testified that Jane’s mother and baby 1 sister attended several times a week from April 2008 to May 2009, but never on weekends. 2 3 People v. Vasquez, 2019 WL 337077, *1-3 (Cal. Ct. App. Jan. 28, 2019) (footnotes omitted). 4 A. Procedural History 5 On November 21, 2013, a jury found Mr. Vasquez guilty of 68 felonies arising out of the 6 sexual abuse of Jane Doe. Id. at *1. On March 20, 2015, the trial court sentenced him to an 7 aggregate term of 48 years in state prison. Id. at *3. 8 Mr. Vasquez appealed. The California Court of Appeal affirmed his conviction. Id. at *1. 9 The California Supreme Court summarily denied the petition. Answer, Ex. 3 at 48 of 67. Mr. 10 Vasquez then filed this federal habeas petition. Petition, Docket No. 1. His claims are that: (1) the 11 trial court erred by excluding evidence that Jane Doe had sexual intercourse with her boyfriend on 12 the day she disclosed Mr. Vasquez’s sexual abuse to the police, and (2) the trial court erred by 13 giving a modified unanimity instruction that may have led the jury to convict without being truly 14 unanimous. Petition at 5. 15 JURISDICTION AND VENUE 16 This Court has subject matter jurisdiction over this action for a writ of habeas corpus under 17 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the petition 18 concerns the conviction and sentence of a person convicted in San Mateo County, California, 19 which is within this judicial district. 28 U.S.C. §§ 84, 2241(d). 20 STANDARD OF REVIEW 21 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 22 custody pursuant to the judgment of a State court only on the ground that he is in custody in 23 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 24 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) amended § 2254 25 to impose new restrictions on federal habeas review. A petition may not be granted with respect to 26 any claim that was adjudicated on the merits in state court unless the state court’s adjudication of 27 the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application 1 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of 2 the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). 3 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court 4 arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if 5 the state court decides a case differently than [the] Court has on a set of materially 6 indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). 7 “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if 8 the state court identifies the correct governing legal principle from [the Supreme] Court’s 9 decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. 10 “[A] federal habeas court may not issue the writ simply because that court concludes in its 11 independent judgment that the relevant state-court decision applied clearly established federal law 12 erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. “A 13 federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state 14 court’s application of clearly established federal law was objectively unreasonable.” Id. at 409. 15 The state-court decision to which § 2254(d) applies is the “last reasoned decision” of the 16 state court, if there is a reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991). 17 When confronted with an unexplained decision from the last state court to have been presented 18 with the issue, “the federal court should ‘look through’ the unexplained decision to the last related 19 state-court decision that does provide a relevant rationale. It should then presume that the 20 unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 21 (2018). 22 DISCUSSION 23 A. Exclusion of Evidence 24 Mr. Vasquez asserts that his right to present a defense and confront witnesses was violated 25 when the trial court excluded evidence that Jane and her boyfriend had sexual relations on the day 26 she reported the abuse to police. Petition at 5. 27 1. Background 1 the evidence pursuant to Evidence Code section 782. Vasquez, 2019 WL 337077 at *3. Trial 2 counsel for Mr. Vasquez argued that Jane’s sexual activity with her boyfriend on the day she 3 contacted police was highly probative regarding her credibility. Id. He alleged that the sexual 4 activity was inconsistent with the emotional and traumatic step of contacting police. Id. The trial 5 court disagreed and excluded the evidence in a lengthy ruling. Id. 6 The state appellate court summarized the proceedings as follows:

7 Preliminarily, the [trial] court noted Jane’s decision to leave school and be with her boyfriend on that day cut both ways with respect to 8 her credibility. In fact, the court found it not “necessarily unlikely” Jane might have wanted to be out of school and with her “best friend 9 in the world,” even being intimate, on such a day. The court then correctly framed the issue before it as follows: “The question for this 10 court is whether the fact that they were intimate that day has any relevance, and if it has any relevance to her credibility as a witness . 11 . . whether the fact of being intimate over that hour and a half is so probative of her credibility that it outweighs the prejudicial nature of 12 delving into that testimony. It’s not relevant as to whether or not she consents to an act with her father in any way. [¶] . . . [¶] And 13 that’s the nub of it, whether or not—everything else that happened that day can be reported and examined on, but for—including that 14 they went to a private place in the park where they could be alone, but for whether they engaged in sexual conduct at that time or not. 15 And counsel’s argument seems to be that it strains credulity that a 15-year-old girl in an emotional situation like that would have 16 intimate relations with a 15- or 16-year-old boy to such an extent that it is probative more than it is prejudicial.” 17 After indicating it had heard testimony and argument, reviewed the 18 pleadings, and considered relevant case law and treatises, the trial court found Jane’s sexual activity on the day in question to be, “if 19 relevant at all, . . . of de minimis relevance to her credibility as a witness, at most. That’s if it’s relevant at all. But it is undeniably 20 prejudicial, insofar as it is—or could be taken as bad character evidence of the complaining witness and used in that fashion more 21 so than as an explanation for anything she did or didn't do vis-a-vis reporting her father that, under [Evidence Code section] 352, I think 22 it is far more prejudicial than it is probative.” 23 Vasquez, 2019 WL 337077 at *3. 24 The California Court of Appeal agreed with the trial court and rejected Mr. Vasquez’s 25 claim. The court stated:

26 We agree with the trial court. Jane’s intimate act with her boyfriend on the day she spoke to the police had little, if any, relevance to her 27 credibility with respect to the charged offenses. While the fact that about the abuse—other evidence admitted at trial made this clear, 1 and defense counsel mentioned it repeatedly during closing argument. Thus, the jury was well aware Jane’s relationship with 2 her boyfriend might have given her a reason to fabricate the molestation allegations. That Jane and her boyfriend had been 3 intimate on the day she first met with police adds little to this mix, especially given the significant boost her credibility had already 4 received from Vasquez’s admission that the sexual abuse she described after age 14 actually occurred. 5 Defense counsel’s trial theory that the information was relevant 6 because Jane’s sexual activity was somehow inconsistent with her plan to make serious abuse allegations later that same day is 7 unpersuasive and does not change our relevance calculus. Indeed, Vasquez abandons this argument on appeal. Instead, acknowledging 8 Vasquez’s admissions with respect to the over-14 abuse, appellate counsel admits “[t]he sole contested issue in this case was, did [he] 9 start having sex with his daughter before she was 14, or only after?” Counsel then claims Jane’s sexual behavior was relevant to this 10 issue, because—after preparing herself to sever ties with her family and cementing her relationship with her boyfriend through this 11 sexual act—“it was very much in her interest to make sure that appellant would not return to her life until she was an adult living on 12 her own.” In other words, she had a motive to lie regarding the more serious charges alleged to have occurred before she was 14, 13 because it would dramatically increase Vasquez’s punishment. We find this argument—which we note could be made without reference 14 to Jane’s sexual conduct—both improbable and nonsensical.

15 Preliminarily, it appears exceedingly unlikely Jane, at age 15, would have been aware of the heightened punishment accorded abusers 16 who molest children under the age of 14. More importantly, however, making up additional crimes was entirely unnecessary to 17 achieve her purported goal—ridding herself of her father until she became an independent adult. Vasquez faced a possible 100-year 18 prison sentence in this case, based on a fraction of the possible offenses with which he could have been charged under the 19 circumstances alleged. As the Attorney General persuasively argues, it makes no sense—given the years of sexual abuse she 20 described and which Vasquez largely admitted—that Jane would have thought more would be necessary to keep Vasquez incarcerated 21 during the less-than-three years it would take for her to turn 18. Indeed, Vasquez was not even tried until she had reached her 22 majority.

23 Jane’s sexual conduct under these circumstances, then, was largely irrelevant. In contrast, as the trial court recognized, the possible 24 prejudicial effect from admission of such evidence could be substantial. Our high court has summarized the scope of the 25 potential prejudice in this context as follows: “The potential prejudice of [evidence of past sexual relations], on the other hand, 26 was substantial. (U.S. v. One Feather (8th Cir. 1983) 702 F.2d 736, 739 [the policy of the rape shield law ‘to guard against unwarranted 27 intrusion into the victim’s private life . . . may be taken into account marriage automatically suggests a receptivity to the activity or is 1 proof that the victim got what she deserved—neither of which is a rational or permissible inference. (U.S. v. Kasto (8th Cir. 1978) 584 2 F.2d 268, 271–272.) In addition, the Legislature has determined that victims of sexual assault require greater protections beyond those 3 afforded other witnesses against surprise, harassment, and unnecessary invasion of privacy (see generally Government of 4 Virgin Islands v. Scuito (3d Cir. 1980) 623 F.2d 869, 875–876), and defendant’s inquiry would have violated those interests, particularly 5 the state interest ‘to encourage reporting by limiting embarrassing trial inquiry into past sexual conduct.’ (Wood v. Alaska (9th Cir. 6 1992) 957 F.2d 1544, 1522.).” (People v. Fontana (2010) 49 Cal. 4th 351, 370 (Fontana).) On these facts, we believe the potential for 7 prejudice as articulated in Fontana tips the scale decisively in favor of excluding the evidence of Jane’s sexual encounter with her 8 boyfriend.

9 Indeed, although appellant’s counsel claims the concerns expressed in Fontana are outmoded, his other argument on this topic—if it is 10 worthy of any comment at all—is notable solely because it illustrates exactly the type of prejudicial thinking condemned by the 11 Fontana Court. As stated above, when he was interviewed by the police prior to his arrest, Vasquez claimed Jane was in love with him 12 and had initiated many of the sexual acts at issue. Crediting these self-serving statements as “the only possible explanation” for Jane’s 13 repeated abuse,[FN. 4] counsel argues on appeal that the jury would not have been inflamed by evidence of Jane’s “tryst” with her 14 boyfriend because they would have considered the fact she had “switch[ed] her affections” to her age-appropriate boyfriend “the 15 proper and right thing for her to do.” Of course, in attempting to equate Jane’s teenage relationship with the years of repeated 16 molestation she endured at the hands of her father, counsel seeks to inject the idea that Jane was sexually promiscuous and thereby 17 support Vasquez's claim that she initiated the sex. Moreover, evidence of Jane’s sexual conduct with her boyfriend might mislead 18 the jury into excusing or minimizing Vasquez’s conduct, even though consent is unavailable as a defense under these 19 circumstances. (See, e.g., People v. Soto (2011) 51 Cal. 4th 229, 238 [as children under 14 cannot give valid legal consent to sexual 20 acts with adults, child victim's alleged consent in section 288 cases is “immaterial as a matter of law” (italics in original)].) 21 FN. 4. Incredibly, counsel bases this conclusion on the 22 offensive suggestion that Jane must have wanted to engage in sex with her father because, had she not, the young, 23 vulnerable immigrant child would simply have slept elsewhere or said no. Suffice it to say that review of the 24 relevant psychological literature on the sexual abuse of children demonstrates the fallacy of this argument. (See, 25 e.g., National Center for Victims of Crime, Effects of Child Sexual Abuse on Victims (2012) at 26 [as of January 29, 2019] 27 [“Victims may feel powerless because the abuse has 1 In short, none of Vasquez’s contentions gives us cause to disturb the trial court’s determination of this matter, which is reviewable on 2 appeal solely for abuse of discretion. (Fontana, supra, 49 Cal. 4th at p. 370.) Moreover, since we conclude that the trial court did not 3 abuse its discretion in refusing to admit evidence of Jane’s sexual activity with her boyfriend, we likewise reject Vasquez’s claim that 4 this ruling deprived him of his constitutional rights to confront witnesses or present a defense. (See People v. Snow (2003) 30 Cal. 5 4th 43, 90 [application of the rules of evidence generally does not support a constitutional violation; evidence of marginal probative 6 value “certainly” does not fall outside this general rule].) 7 Vasquez, 2019 WL 337077 at *3-5. 8 As the last reasoned decision from a state court, the California Court of Appeal’s decision 9 is the decision to which § 2254(d) is applied. See Wilson, 138 S. Ct. at 1192. Mr. Vasquez is 10 entitled to habeas relief only if the California Court of Appeal’s decision was contrary to, or an 11 unreasonable application of, clearly established federal law from the U.S. Supreme Court, or was 12 based on an unreasonable determination of the facts in light of the evidence presented. 13 2. Analysis 14 a. Right to Present Defense 15 The U.S. Constitution gives a criminal defendant the right to present a defense. “Whether 16 rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory 17 Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal 18 defendants ‘a meaningful opportunity to present a complete defense.’” Crane v. Kentucky, 476 19 U.S. 683, 690 (1986) (citations omitted). The Compulsory Process Clause of the Sixth 20 Amendment preserves the right of a defendant in a criminal trial to have compulsory process for 21 obtaining a favorable witness. Washington v. Texas, 388 U.S. 14, 19 (1967). The Sixth 22 Amendment right to present relevant testimony “may, in appropriate cases, bow to accommodate 23 other legitimate interests in the criminal trial process.” Chambers v. Mississippi, 410 U.S. 284, 24 295 (1973); Taylor v. Illinois, 484 U.S. 400, 410-11 (1988) (right to compulsory process is not 25 absolute). A defendant “‘does not have an unfettered right to offer [evidence] that is incompetent, 26 privileged or otherwise inadmissible under standard rules of evidence.’” Montana v. Egelhoff, 518 27 U.S. 37, 42-43 (1996) (plurality opinion) (alteration in original) (quoting Taylor, 484 U.S. at 410). 1 “[T]o say that the right to introduce relevant evidence is not absolute is not to say that the Due 2 Process Clause places no limits upon restriction of that right”; rather, it means that the defendant 3 has the heavy burden to show that the decision to exclude evidence “‘offends some principle of 4 justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’” 5 Id. at 42-43 (citation omitted). Even if the exclusion of evidence was a constitutional error, habeas 6 relief is not available unless the erroneous exclusion had a “‘substantial and injurious effect or 7 influence in determining the jury’s verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). 8 “Only rarely [has the Supreme Court] held that the right to present a complete defense was 9 violated by the exclusion of defense evidence under a state rule of evidence.” Nevada v. Jackson, 10 569 U.S. 505, 509 (2013).1 In Jackson, the Supreme Court identified four cases where it had 11 found such a violation: Holmes v. South Carolina, 547 U.S. 319 (2006); Rock v. Arkansas, 483 12 U.S. 44 (1987); Chambers v. Mississippi, 410 U.S. 284 (1973); and Washington v. Texas, 388 U.S. 13 14 (1967). 14 In Holmes v. South Carolina, the Supreme Court held that a criminal defendant’s right to 15 present a defense was violated by an evidence rule under which a defendant could not introduce 16 proof of third-party guilt if the prosecution had introduced forensic evidence that, if believed, 17 would strongly support a guilty verdict. 547 U.S. at 331. The constitutional problem was that the 18 general rule (i.e., allowing a defendant to offer evidence of third-party guilt if the evidence was 19 inconsistent with his own guilt and was not speculative) had been “radically” changed by the 20 South Carolina Supreme Court to be contingent on the strength of the prosecution’s case. Id. at 21 328. As a result of the state court’s radical change in the rule, the rule ceased to rationally serve 22 the end that the general rule was designed to promote – i.e., “to focus the trial on the central issues 23 1 In Nevada v. Jackson, the Supreme Court reversed the Ninth Circuit’s decision granting habeas 24 relief for a petitioner who had been barred from presenting extrinsic evidence of the victim’s prior accusations of sexual assault at petitioner’s trial for rape. The Ninth Circuit was faulted for 25 viewing the Supreme Court’s cases on the right to present a defense at too high a level of generality. See 569 U.S. at 512. Although the Supreme Court had held that certain restrictions on 26 a defendant’s ability to cross-examine a witness violate the Confrontation Clause, the Supreme Court “has never held that the Confrontation Clause entitles a criminal defendant to introduce 27 extrinsic evidence for impeachment purposes.” Id. “The Ninth Circuit elided the distinction 1 by excluding evidence that has only a very weak logical connection to the central issues.” Id. at 2 330. 3 In Rock v. Arkansas, 483 U.S. 44, the Supreme Court held that Arkansas’ per se rule 4 excluding all hypnotically enhanced testimony was unconstitutional when used to restrict a 5 defendant's right to testify. 483 U.S. at 62. There, the Court explained that “[a] State's legitimate 6 interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in 7 an individual case. Wholesale inadmissibility of a defendant's testimony is an arbitrary restriction 8 on the right to testify in the absence of clear evidence by the State repudiating the validity of all 9 posthypnosis recollections.” Id. at 61. 10 In Chambers v. Mississippi, the Supreme Court held that the defendant was denied a fair 11 trial when the state’s evidentiary rules prevented him from calling witnesses who would have 12 testified that another witness made trustworthy, inculpatory statements on the night of the crime. 13 410 U.S. at 302. It was the combination of the rigid application of the State’s evidence rules and 14 the fact that the proffered evidence bore considerable assurances of trustworthiness and reliability 15 that led to the due process violation in Chambers. See id. at 302-03. The Supreme Court 16 specifically pointed out that its holding did not “signal any diminution in the respect traditionally 17 accorded to the States in the establishment and implementation of their own criminal trial rules 18 and procedures.” Id. 19 The challenged rule in Washington v. Texas, provided that principals, accomplices and 20 accessories in the same crime could not be used as witnesses for each other. 388 U.S. at 15. This 21 rule violated a defendant’s right to compulsory process because “the State arbitrarily denied him 22 the right to put on the stand a witness who was physically and mentally capable of testifying to 23 events that he had personally observed, and whose testimony would have been relevant and 24 material to the defense.” Id. at 23. 25 The California Court of Appeal’s rejection of Mr. Vasquez’s claim that he was prevented 26 from presenting evidence of Jane’s sexual activity on the day she contacted police was not 27 contrary to, or an unreasonable application of, these Supreme Court holdings. Mr. Vasquez has 1 process includes a right to present the type of evidence Mr. Vasquez sought to admit in this case. 2 If anything, the excluded evidence here had no more probative value than the evidence 3 regarding the victim’s sexual activity excluded in Jackson. Id. at 506, 512. The evidence 4 excluded here had, for reasons stated by the Court of Appeal, only slight, if any, probative value in 5 this case. The Court of Appeal reasonably determined that Jane’s sexual activity on the day she 6 reported the abuse to the police was only minimally relevant. The California Court of Appeal 7 noted that Mr. Vasquez was able to present evidence that Jane had a boyfriend against her father’s 8 wishes, and this evidence provided a motive for her to lie about the abuse and was relevant to her 9 credibility. Vasquez, 2019 WL 337077 at *3; 5RT at 683-85, 850-51. This argument was 10 presented during closing argument and provided the jury with a possible reason for Jane to 11 fabricate the molestation. Vasquez, 2019 WL 337077 at *3; 12RT at 1303-04, 1314. Trial courts 12 have wide latitude in deciding what evidence comes in. See, e.g., Delaware v. Van Arsdall, 475 13 U.S. 673, 679 (1986) (“trial judges retain wide latitude insofar as the Confrontation Clause is 14 concerned to impose reasonable limits on such cross-examination based on concerns about, among 15 other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation 16 that is repetitive or only marginally relevant”); Montana v. Egelhoff, 518 U.S. at 42 (citing Federal 17 Rule of Evidence 403 as an example of “familiar and unquestionably constitutional evidentiary 18 rules” that “authorize the exclusion of relevant evidence.”). 19 It is highly doubtful whether the Supreme Court precedent could support a finding that a 20 routine application of an otherwise permissible rule of evidence violated Mr. Vasquez’s right to 21 present a defense. At the very least, “fairminded jurists could disagree” on whether the U.S. 22 Supreme Court’s cases on the right to due process and the right to present a defense extend to the 23 routine application of an otherwise permissible rule, such as the rule regarding evidence of a 24 victim’s sexual conduct being relevant and not inadmissible. 25 Nor, for the reasons stated above, has Mr. Vasquez established the state court’s application 26 of the rule was unreasonable. See Harrington, 562 U.S. at 101; see also id. at 103 (petitioner must 27 show the state court’s decision “was so lacking in justification that there was an error well 1 disagreement”). 2 Finally, even if there was an error, it did not have a substantial and injurious effect on the 3 judgment pursuant to Brecht in light of all the evidence against him, including his admission that 4 he had molested Jane. Mr. Vasquez is not entitled to the writ on this claim. 5 b. Confrontation Clause 6 Nor is Mr. Vasquez entitled to relief regarding his Confrontation Clause claim. The 7 Confrontation Clause guarantees an opportunity for effective cross-examination, not cross- 8 examination that is effective in whatever way, and to whatever extent, the defense might wish. 9 Delaware v. Fensterer, 474 U.S. 15, 20 (1985). Trial judges retain wide latitude to impose 10 reasonable limits on cross-examinations based on concerns about, among other things, 11 “harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is 12 repetitive or only marginally relevant.” Van Arsdall, 475 U.S. at 679. A defendant “can prove a 13 violation of his Sixth Amendment rights by ‘showing that he was prohibited from engaging in 14 otherwise appropriate cross-examination designed to show a prototypical form of bias on the part 15 of the witness, and thereby ‘to expose to the jury the facts from which jurors . . . could 16 appropriately draw inferences relating to the reliability of the witness.’” Holley v. Yarborough, 17 568 F.3d 1091, 1098 (9th Cir. 2009) (omission in original) (quoting Van Arsdall, 475 U.S. at 680). 18 A showing of constitutional error under the Confrontation Clause only merits habeas relief if the 19 error was prejudicial, that is, if it had a “substantial and injurious effect or influence in 20 determining the jury's verdict.” Id. at 1100 (9th Cir. 2009) (quoting Brecht, 507 U.S. at 637). 21 The California Court of Appeal’s determination that there was no Confrontation Clause 22 violation in the exclusion of this evidence was not an unreasonable application of U.S. Supreme 23 Court precedent, which itself accords trial judges “wide latitude” to impose reasonable limits on 24 cross-examination based on concerns about questioning “that is repetitive or only marginally 25 relevant.” Van Arsdall, 475 U.S. at 679; see, e.g., Plascencia v. Alameida, 467 F.3d 1190, 1201 26 (9th Cir. 2006) (exclusion of cross-examination that would have provided cumulative or repetitive 27 evidence did not violate Confrontation Clause or was harmless error); United States v. Sua, 307 1 guilty plea with dismissal of a charge when offered by defendant to establish government’s belief 2 in the codefendant’s innocence (and, by inference, in defendant’s innocence) based on dismissal of 3 that charge because potential jury confusion and undue delay outweighed defendant’s interest in 4 presenting the marginally relevant evidence). 5 It was not unreasonable for the California Court of Appeal to determine that Jane’s sexual 6 activity with her boyfriend on the date in question, if relevant at all, had de minimis probative 7 value and was highly prejudicial. As noted above, the jury was aware that (1) Jane had a 8 boyfriend; (2) Mr. Vasquez opposed the relationship; and (3) Mr. Vasquez’s opposition to the 9 relationship already provided a motive for her to lie. Given the evidence presented to the jury, it 10 was reasonable for the Court of Appeal to conclude that the federal constitution did not require the 11 trial court to allow the jury to hear specific evidence about her sexual activity with her boyfriend 12 on the day in question. There was no constitutional error which was contrary to or constituted an 13 unreasonable application of any holding of the U.S. Supreme Court. Nor has Mr. Vasquez shown 14 that if there was an error, that it had a substantial and injurious effect on the judgment. This claim 15 is denied. 16 B. Unanimity Instruction 17 Mr. Vasquez contends that the trial court erred in issuing a modified unanimity jury 18 instruction, CALCRIM 3501, because due to the combination of specific and generic evidence 19 presented, the instruction may have led the jury to convict without being truly unanimous. 20 Petition at 5. 21 1. Background 22 In this case the trial court told the jury that Mr. Vasquez was charged with 36 counts of 23 lewd acts on a minor under the age of 14; 10 counts of unlawful sexual intercourse with a minor 24 under the age of 16; and 21 counts of oral copulation with a minor under the age of 16, all in 25 various relevant timeframes. 9RT at 1255. The trial court then instructed the jury pursuant to 26 CALCRIM 3501, stating:

27 “The People have presented evidence of more than one act to prove have proved that the defendant committed at least one of these acts, 1 and you all agree on which act he committed for each offense; or, two, you all agree that the People have proved that the defendant 2 committed all the acts alleged to have occurred during this time period and have proved that the defendant committed at least the 3 number of offenses charged. [¶] Each of the counts charged in this case is a separate crime. [¶] You must consider each count 4 separately and return a separate verdict for each one.” 5 9RT at 1255-56. 6 The California Court of Appeal set forth the relevant law and denied this claim. The court 7 stated:

8 A criminal defendant’s right to a jury trial includes the right to a unanimous verdict, including unanimous agreement on the act 9 constituting the offense charged. (Cal. Const., art. I, § 16; People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) “[C]ases have long 10 held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must 11 require the jury to agree on the same criminal act.” (Russo, at p. 1132.) “This requirement of unanimity as to the criminal act ‘is 12 intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the 13 defendant committed.’” (Ibid.)

14 Historically, child molestation cases presented difficult issues regarding how properly to instruct a jury on the constitutional 15 requirement of a unanimous verdict when a child-victim testified generically about numerous undifferentiated acts of molestation 16 occurring over a particular period of time—i.e., “an act of intercourse ‘once a month for three years.’” (People v. Jones (1990) 17 51 Cal.3d 294, 314 (Jones).) However, in Jones, our high court soundly rejected the contention that “jury unanimity is necessarily 18 unattainable where testimony regarding repeated identical offenses is presented in child molestation cases. In such cases, although the 19 jury may not be able to readily distinguish between the various acts, it is certainly capable of unanimously agreeing that they took place 20 in the number and manner described.” (Id. at p. 321.) Thus, the Jones court concluded, a child-victim must only provide evidence 21 with respect to the kind of act or acts committed, the number of acts, and the general timeframe in which the acts occurred. (Id. at p. 22 316.) While “[a]dditional details regarding the time, place or circumstance of the various assaults may assist in assessing the 23 credibility or substantiality of the victim’s testimony,” such ancillary matters are “not essential to sustain a conviction.” (Id. at p. 316, 24 italics added.)

25 To safeguard the constitutional requirement of unanimity under these circumstances, the Jones court further directed as follows: “In 26 a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, the standard unanimity 27 instruction should be given. [Citation.] But when there is no all of them, the jury should be given a modified unanimity 1 instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the 2 jury unanimously agrees the defendant committed all the acts described by the victim.” (Jones, supra, 51 Cal.3d at pp. 321–322.) 3 This is exactly what was done in this case.

4 . . . .

5 CALCRIM No. 3501—the instruction given by the trial court—is an alternative instruction to the general unanimity instruction, 6 CALCRIM No. 3500. (People v. Fernandez (2013) 216 Cal. App. 4th 540, 555 (Fernandez).) It “affords two different approaches for 7 the jury to reach the required unanimity. The first is the same as that set forth in CALCRIM No. 3500: agreement as to the acts 8 constituting each offense. But unanimity may also be found under CALCRIM No. 3501 if the jury agrees ‘that the People have proved 9 that the defendant committed all the acts alleged to have occurred during this time period [and have proved that the defendant 10 committed at least the number of offenses charged].’” (Fernandez, at p. 556.) 11 Vasquez asserts it was error to give the modified unanimity 12 instruction in this case because—given the mix of specific and generic evidence presented—it may have led the jury to convict 13 without being truly unanimous. We review a claim of instructional error de novo. (People v. Hernandez (2013) 217 Cal.App.4th 559, 14 568.) In doing so, “we view the challenged instruction in the context of the instructions as a whole and the trial record to 15 determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.” (People v. Houston 16 (2012) 54 Cal. 4th 1186, 1229.) As a baseline, “[w]e assume the jurors are intelligent persons capable of understanding and 17 correlating all jury instructions given them.” (People v. Milosavljevic (2010) 183 Cal. App. 4th 640, 649.) 18 On appeal, Vasquez asserts the jury in this case must have been 19 confused with respect to the unanimity instruction, because it convicted him of all 36 counts of lewd acts on a minor under the age 20 of 14, even though he presented irrefutable evidence Jane’s mother never attended developmental classes with Jane’s younger sister on 21 weekends, a time during which Jane reported some of these molestations occurred. According to Vasquez, since there was no 22 testimony supporting 36 specific acts during the under-14 timeframe, the jury must have relied on Jane’s generic testimony to 23 convict. Given this record, Vasquez asserts it was unlikely that every juror believed he “committed all the acts alleged to have 24 occurred during this time period.” Additionally, if some jurors convicted on those counts based on the “baby school” molestations 25 while others—convinced the “baby school” molestations never happened—based their convictions on the acts of nighttime lewd 26 touching and intercourse also alleged during the same timeframe, there is a “real chance,” Vasquez urges, the verdicts were not truly 27 unanimous as to the underlying acts committed. unanimity in this case. Instead, it appears the jury applied the 1 unanimity instruction exactly as it was intended, to provide a pathway to conviction where “[a] young victim such as [Jane], 2 assertedly molested over a substantial period by a parent or other adult residing in [her] home, may have no practical way of 3 recollecting, reconstructing, distinguishing or identifying by ‘specific incidents or dates’ all or even any such incidents.” (Jones, 4 supra, 51 Cal. 3d at p. 305.) The instruction given in this case was quite clear: To convict on each count charged, the jury either had to 5 agree on a specific act underlying the charge or agree Vasquez committed all of the acts alleged to have occurred during the 6 relevant time period.

7 The most likely scenario here—and the one which Vasquez simply ignores—is that the jury found Jane wholly credible and believed all 8 of the alleged acts transpired, despite certain inconsistencies in her testimony with respect to timing and circumstances. As the Jones 9 Court highlighted, “credibility is usually the ‘true issue’ in these cases.” (Jones, supra, 51 Cal.3d at p. 322.) Thus, “‘the jury either 10 will believe the child’s testimony that the consistent, repetitive pattern of acts occurred or disbelieve it. In either event, a defendant 11 will have his unanimous jury verdict [citation] and the prosecution will have proven beyond a reasonable doubt that the defendant 12 committed a specific act, for if the jury believes the defendant committed all the acts it necessarily believes he committed each 13 specific act.’” (Ibid.) In these proceedings, Jane described several specific types of sexual misconduct inflicted upon her by Vasquez 14 repeatedly over the course of years. While, as stated above, details regarding the exact timing, place, or circumstances of the various 15 assaults might have assisted the jury in assessing her credibility, such ancillary matters were not necessary to support the convictions. 16 (Id. at p. 316.) Rather, to the extent Vasquez cites discrepancies in Jane's statements, “the inconsistency went only to the weight and 17 credibility of the evidence and, on appeal, we do not disturb the jury’s resolution of that inconsistency.” (People v. Tompkins (2010) 18 185 Cal. App. 4th 1253, 1261.) In short, on these facts (viewed, as we must, in the light most favorable to the prosecution), we see no 19 indication of instructional error. 20 Vasquez, 2019 WL 337077 at *7-8. 21 As the last reasoned decision from a state court, the California Court of Appeal’s decision 22 is the decision to which § 2254(d) is applied. See Wilson, 138 S. Ct. at 1192. Mr. Vasquez is 23 entitled to habeas relief only if the California Court of Appeal’s decision was contrary to, or an 24 unreasonable application of, clearly established federal law from the U.S. Supreme Court, or was 25 based on an unreasonable determination of the facts in light of the evidence presented. 26 2. Analysis 27 To obtain federal habeas relief for an error in the jury instructions, a petitioner must show 1 Estelle v. McGuire, 502 U.S. 62, 72 (1991). A jury instruction violates due process if it fails to 2 give effect to the requirement that “the State must prove every element of the offense.” Middleton 3 v. McNeil, 541 U.S. 433, 437 (2004). “A single instruction to a jury may not be judged in artificial 4 isolation, but must be viewed in the context of the overall charge.” Id. (quoting Boyde v. 5 California, 494 U.S. 370, 378 (1990)). “Even if there is some ‘ambiguity, inconsistency, or 6 deficiency’ in the instruction, such an error does not necessarily constitute a due process 7 violation.” Waddington v. Sarausad, 555 U.S. 179, 190 (2009) (quoting Middleton, 541 U.S. at 8 437). Where a potentially defective instruction is at issue, the court must inquire whether there is 9 a “reasonable likelihood” that the jury applied the challenged instruction in a way that violates the 10 Constitution. Estelle, 502 U.S at 72 & n.4; Boyde, 494 U.S. at 380. Even if there is a 11 constitutional error in the instructions, habeas relief is not available unless the error had a 12 substantial and injurious effect or influence in determining the jury’s verdict. Calderon v. 13 Coleman, 525 U.S. 141, 146-47 (1998); Brecht at 637. 14 Criminal defendants in state court have no federal constitutional right to a unanimous jury 15 verdict. See Apodaca v. Oregon, 406 U.S. 404, 410-12 (1972) (rejecting 6th Amendment right to 16 jury trial challenge to 10-2 state jury verdict). In addition, “[D]ifferent jurors may be persuaded 17 by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no 18 general requirement that the jury reach agreement on the preliminary factual issues which underlie 19 the verdict.” McKoy v. N. Carolina, 494 U.S. 433, 449 (1990) (Blackmun, J., concurring) 20 (footnotes omitted). 21 Mr. Vasquez contends that because he was convicted of all counts of lewd acts on a minor 22 under the age of 14, the jury must have found that he molested Jane on the weekend and during the 23 week using both the specific and generic evidence. He argues this finding was an error because 24 his wife’s testimony showed that she had not been gone on the weekends, when some of the 25 molestation allegedly occurred, and that the jury therefore must not have had unanimity in 26 reaching its verdict. 27 The state appellate court’s determination that it was proper to issue CALCRIM 3501 was 1 to CALCRIM 3501 contrary to, or an unreasonable application of, clearly established law from the 2 U.S. Supreme Court. As noted by the state court, it is wholly possible that the jury credited Jane’s 3 testimony and did not credit the mother’s testimony in finding she had been molested during the 4 week and on weekends and that Mr. Vasquez was guilty of all counts. Regardless, federal law is 5 clear that, at least in noncapital cases, there is no federal right to a unanimous jury verdict. Schad, 6 501 U.S. 624 at 634 n.5. When there is no “clearly established Federal law, as determined by the 7 Supreme Court of United States,” the state court’s adjudication of the claim cannot be said to be 8 an unreasonable application of such law. See Carey v. Musladin, 549 U.S. 70, 77 (2006). 9 In People v. Jones, 51 Cal. 3d 294 (Cal. 1990), the California Supreme Court found that a 10 child molestation victim must only provide evidence with respect to the kind of act or acts 11 committed, the number of acts and the general timeframe when they occurred. Id. at 316. The 12 Ninth Circuit has found that the result of Jones is neither contrary to nor an unreasonable 13 application of United States Supreme Court precedent. See Brodit v. Cambra, 350 F.3d 985, 988– 14 89 (9th Cir. 2003) (rejecting claim that petitioner was denied notice of charges, in violation of due 15 process, by information alleging sexual abuse on unspecified dates as approved in Jones). Brodit 16 holds that § 2254(d)(1) precludes a claim that due process is violated by the absence in the 17 charging document of precise dates. Id. It follows that § 2254(d)(1) also precludes a claim that 18 due process is violated by a conviction in the absence of evidence to establish jury unanimity 19 regarding the precise dates of when the acts occurred. 20 The state appellate court could have reasonably concluded that there was no reasonable 21 likelihood that the jury misapplied the challenged instruction in a way that violated the 22 constitution. Furthermore, even if the trial court erred in issuing the instruction, Mr. Vasquez has 23 failed to show that the error had a substantial and injurious effect or influence in determining the 24 jury’s verdict. For all these reasons, he is not entitled to habeas relief on this claim. 2 25 2 With respect to this claim in the petition, Mr. Vasquez also briefly states that his attorney was 26 ineffective for failing to obtain witnesses and documents that would have benefited him and shown his character and innocence. Petition at 6. This was not construed as a claim and was not 27 exhausted in state court. Nor has petitioner informed the Court that he intended to bring this 1 3. No Certificate of Appealability 2 A certificate of appealability will not issue because reasonable jurists “would not find the 3 district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 4 529 U.S. 473, 484 (2000). Accordingly, a certificate of appealability is denied. 5 VI. CONCLUSION 6 For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The Clerk 7 shall enter Judgment and close the file. 8 9 IT IS SO ORDERED. 10 11 Dated: March 9, 2020 12

1 == ED M.C 14 United States District Judge 15 16

= 17

Z 18 19 20 21 22 23 24 25 obtained and what would have been their testimony, nor has he identified or described any specific 26 || documents that would have helped his defense. A defendant’s mere speculation that a witness might have given helpful information if interviewed is not enough to establish ineffective 07 assistance. See Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). To the extent Mr. Vasquez sought to bring this claim, it is denied. See James v. Borg, 28 24 F.3d 20, 26 (9th Cir. 1994) (conclusory allegations not supported by specific facts in petition do not warrant habeas relief).