Castro v. Cash

Filing 35

ORDER Substituting Warden J. Soto As Respondent, FINDINGS And RECOMMENDATIONS To Dismiss And Deny The First Amended Petition For Writ Of Habeas Corpus (Doc. 24 ), Enter Judgment For Respondent, And Decline To Issue A Certificate Of Appealability, Objections Deadline: Thirty (30) Days After Service, signed by Magistrate Judge Sheila K. Oberto on 12/8/2014. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 1/12/2015. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 ISIDRO CASTRO,

Case No. 1:11-cv-00441-AWI-SKO-HC

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ORDER SUBSTITUTING WARDEN J. SOTO
AS RESPONDENT

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Petitioner,
v.

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15 J. SOTO, Warden,
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Respondent.

FINDINGS AND RECOMMENDATIONS TO
DISMISS AND DENY THE FIRST AMENDED
PETITION FOR WRIT OF HABEAS CORPUS
(DOC. 24), ENTER JUDGMENT FOR
RESPONDENT, AND DECLINE TO ISSUE A
CERTIFICATE OF APPEALABILITY
OBJECTIONS DEADLINE:
THIRTY (30) DAYS AFTER SERVICE

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Petitioner is a state prisoner proceeding pro se and in forma

20 pauperis with a petition for writ of habeas corpus pursuant to 28
21 U.S.C. § 2254.

The matter has been referred to the Magistrate Judge

22 pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304.
23 Pending before the Court is the first amended petition (FAP), which
24 was filed on March 21, 2012.
25 13, 2012.

Respondent filed an answer on August

Although the time for filing a traverse has passed, no

26 traverse has been filed.
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I.

Jurisdiction and Order Substituting Respondent

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Because the petition was filed after April 24, 1996, the
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1 effective date of the Antiterrorism and Effective Death Penalty Act
2 of 1996 (AEDPA), the AEDPA applies in this proceeding.

Lindh v.

3 Murphy, 521 U.S. 320, 327 (1997); Furman v. Wood, 190 F.3d 1002,
4 1004 (9th Cir. 1999).
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The challenged judgment was rendered by the Superior Court of

6 the State of California, County of Kern (KCSC), located within the
7 jurisdiction of this Court.
8 (d).

28 U.S.C. §§ 84(b), 2254(a), 2241(a),

Petitioner claims that in the course of the proceedings

9 resulting in his conviction, he suffered violations of his
10 constitutional rights.

Accordingly, the Court concludes that it has

11 subject matter jurisdiction over the action pursuant to 28 U.S.C. §§
12 2254(a) and 2241(c)(3), which authorize a district court to
13 entertain a petition for a writ of habeas corpus by a person in
14 custody pursuant to the judgment of a state court only on the ground
15 that the custody is in violation of the Constitution, laws, or
16 treaties of the United States.

Williams v. Taylor, 529 U.S. 362,

17 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. -, -, 131 S.Ct. 13, 16
18 (2010) (per curiam).
19

An answer was filed on behalf of Respondent B. M. Cash, who was

20 the warden at the California State Prison at Los Angeles County
21 (CSP-LAC), where Petitioner was incarcerated when the petition and
22 answer were filed.

Respondent had custody of Petitioner at the time

23 the petition was filed.

(Doc. 32 at 8.)

Petitioner thus named as a

24 respondent a person who had custody of Petitioner within the meaning
25 of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section
26 2254 Cases in the United States District Courts (Habeas Rules).
27 See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir.
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1 1994).

The Court has jurisdiction over the person of the

2 Respondent.
However, the official website of the California Department of

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4 Corrections and Rehabilitation (CDCR) reflects that the warden at
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5 CSP-LAC is now J. Soto.

Accordingly, it is ORDERED that J. Soto,

6 Warden of CSP-LAC, is SUBSTITUTED as Respondent pursuant to Fed. R.
2
7 Civ. P. 25.

II.

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Procedural and Factual Summary
A.

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Procedural Background

Petitioner was convicted at a jury trial of first degree

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11 burglary in violation of Cal. Pen. Code § 460(a) (count 1), forcible
12 oral copulation in violation of Cal. Pen. Code § 288A(c) (count 2),
13 and the misdemeanors of battering a cohabitant in violation of Cal.
14 Pen. Code § 243(e)(1) (lesser included offense of count 3) and
15 violating a court order in violation of Cal. Pen. Code § 273.6(a)
16 (count 4).

People v. Isidro Castro, Jr., no. F056849, 2010 WL

17 27313, *1 (Jan. 7, 2010) (unpublished).

The jury also made various

18 findings on additional allegations: the jury found true the
19 allegation that appellant committed the oral copulation during the
20 commission of a residential burglary within the meaning of Cal. Pen.
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The Court may take judicial notice of facts that are capable of accurate and

23 ready determination by resort to sources whose accuracy cannot reasonably be
questioned, including undisputed information posted on official websites.

Fed. R.

24 Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993);
Daniels-Hall v. National Education Association, 629 F.3d 992, 999 (9th Cir. 2010).

25 The address of the official website for the CDCR is http://www.cdcr.ca.gov.
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Fed. R. Civ. P. 25(d) provides that when a public officer who is a party to a
civil action in an official capacity dies, resigns, or otherwise ceases to hold
office while the action is pending, the officer’s successor is automatically
substituted as a party. It further provides that the Court may order substitution
at any time, but the absence of such an order does not affect the substitution.

3

1 Code § 667.61(e)(2), but it found not true the separate allegation
2 that during the residential burglary he intended to commit oral
3 copulation within the meaning of Cal. Pen. Code § 667.61(d)(4).

The

4 jury found not true an allegation that appellant entered the
5 victim's apartment intending to commit oral copulation or felony
6 abuse of an intimate partner, but it found true an allegation that
7 appellant moved from the bedroom to the living room with that
8 intent.

(Id.)

Petitioner was sentenced on December 4, 2008, to seventeen

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10 years to life in state prison. (LD 9, 1 CT 271-74.)

On January 7,

11 2010, the Court of Appeal of the State of California, Fifth
12 Appellate District (CCA) affirmed the judgment on direct appeal.
13 (LD 4.)

On March 18, 2010, the Supreme Court of the State of

14 California (CSC) summarily denied Petitioner’s petition for review.
15 (FAP, doc. 24 at 7; LD 6.)

A petition for writ of habeas corpus

16 raising a claim of ineffective assistance of counsel was denied by
17 the CSC on February 22, 2012.

(LD 7, LD 8.)

Petitioner filed his

18 initial petition here and initiated the present proceeding on March
19 16, 2011.
B.

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Factual Summary

In a habeas proceeding brought by a person in custody pursuant

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22 to a judgment of a state court, a determination of a factual issue
23 made by a state court shall be presumed to be correct; the
24 petitioner has the burden of producing clear and convincing evidence
25 to rebut the presumption of correctness.

28 U.S.C. § 2254(e)(1);

26 Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004).

This

27 presumption applies to a statement of facts drawn from a state
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“LD” refers to documents lodged by Respondent with the answer.

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1 appellate court’s decision.

Moses v. Payne, 555 F.3d 742, 746 n.1

2 (9th Cir. 2009).
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The following statement of the facts is taken from the opinion

4 of the CCA in People v. Isidro Castro, Jr., case number F056849,
5 filed on January 7, 2010:
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STATEMENT OF THE CASE
...

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Prior to trial, the prosecution made a motion to allow
impeachment of appellant, if he chose to testify, with
evidence relating to prior convictions. After discussion
on the matter, the trial court ruled that appellant could
be impeached with the May 2001 felony conviction (evading
the police) and the December 2007 misdemeanor conviction
(assault with a deadly weapon).
...

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FACTS

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Appellant and S.C. dated for a year, were engaged, and
lived together for about three weeks. However, there were
times when the relationship turned violent. At trial, S.
testified about three uncharged incidents of domestic
violence.

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The first occurred on April 23, 2008, when appellant
accused S. of cheating on him while she was driving near
his grandmother's house. S. stopped the car, appellant
tried to kiss her, and as she pushed him away, he bit her
lip. When S. restarted the car, appellant picked up a
medicine bottle and broke it against the passenger window.
He also smashed the windshield with his feet.
On a later occasion, appellant and S. were fighting over
money and accusations of infidelity. Appellant threw a
television remote control at S., but missed her, and they
got into a fight. When S. asked appellant how he would
feel if she died, appellant went into the kitchen, got a
knife and held it against her throat. S. was numb.
Appellant then threw the knife down and said that he was
sorry and that he loved her.
The third incident occurred when appellant and S. were
staying at a hotel. Appellant was on the telephone with an
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attorney and S. got on the telephone at the attorney's
request. Appellant became angry and left the hotel room.
When he returned, he got back on the phone with the
attorney and ended the call abruptly. Appellant accused S.
of trying to send him to jail; she denied it, saying that
she was trying to help him. Appellant pushed her and she
fell down near the sink. He forced S. into the bathroom
and slapped her face. S. started crying, and appellant
then began slamming his own head against the wall, and
apologized to S.
On cross-examination, S. admitted that she once broke
appellant's nose during a fight in her car. She also
admitted that on another occasion, she drove her car over
appellant's foot but said it was an accident.
S. eventually broke up with appellant and obtained a
restraining order against him.
Early on the morning of June 22, 2008, S. was awakened by
the sound of banging on her bedroom window. She ran into
the living room and began to dial 911. She heard the
window break, and ran back into the bedroom before she
completed the call. She saw appellant standing there. The
glass from the bedroom window was all over the bed. There
also was a beer can lying on its side, spilling beer all
over the bed. The window screen, which was bent and torn,
also was inside the bedroom.
S. testified that she was half asleep and her “mind wasn't
working.” She started to clean up the glass and told
appellant to leave, but he refused and got angry.
Appellant asked her why she did not want to be with him
anymore, and he pushed her against a wall and began to
kiss her neck. S. told appellant “over and over to stop.”
She managed to push appellant away and began to clean up
the broken glass. Appellant told S. to leave the mess
until the morning, but S. again told appellant to leave.
Appellant then grabbed S. by the back of her head and
arms, dragged her into the living room, and forced her
down on the couch. Appellant was really mad and he kept
asking S. why she left him. He then removed his pants, and
ordered S. to suck his penis. S. refused, again telling
appellant to leave. Appellant slapped S.'s face and called
her a bitch and a slut. He pushed her head towards his lap
and forced his penis into her mouth. After forcing S. to
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orally copulate him for a few minutes, appellant threw her
to the floor, said he did not love her, and told her to
take a shower. S. complied because she “felt disgusted.”
As S. went to the bathroom, appellant remained in the
living room, smoking a cigarette. S. did not call the
police at this point because she had hidden her cellular
telephone after seeing appellant in the apartment, and she
did not call anyone because she feared that appellant
would have beaten her and broken the telephone if he
caught her doing so. While S. was still in the bathroom,
appellant came in and tried to get in the shower with her.
Appellant allowed S. to get out of the shower only after
she promised to remain just outside the bathroom while he
showered.
After appellant finished showering, he and S. returned to
the living room, and he suggested that they get back
together. S. told appellant that she just wanted to go to
sleep. She got a blanket and pillows from the bedroom and
laid them on the living room floor. Appellant, who was
naked because he just got out of the shower, then lay down
on the floor and told S. he wanted her to suck his penis
again. S. said, “no, please, no.” Appellant eventually
fell asleep. At that point, S. retrieved her telephone and
sent the following text to her mother, “Help, call the
police, he is here, 2605 Mt. Vernon.” She also called 911.
S.'s mother, Pamela C., received the text message at 6:55
a.m. and knew that her daughter was referring to
appellant. Pamela called 911 and told the 911 operator
that she was heading to her daughter's apartment and
requested that someone be sent to the apartment. She
arrived at the apartment complex and waited until the
sheriff's deputy came. She then led the sheriff's deputy
to S.'s apartment. A wooden gate in front of the apartment
was padlocked, but Pamela had a key to the lock. Before
Pamela could unlock the gate, S. opened it, and let her
mother and the deputy enter. When the deputy entered the
apartment, he found appellant asleep on the living room
floor, his naked body covered by a blanket. The deputy
also could see that the bedroom window was broken and a
bent window screen was inside the bedroom. The deputy
observed that S. had red marks on the right side of her
neck, below her jaw.

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At trial, Detective Herman Caldas also provided expert
testimony on Battered Women's Syndrome. Caldas described
the “cycle of violence,” where tension builds up in a
relationship and results in violence, after which the
abuser then apologizes, and then the cycle starts over
again. He also explained that victims of domestic violence
may not report abuse and often do not leave their abuser
because of guilt, shame, belief that the abuser will
change, or fear of retribution.
Appellant testified in his own defense. The gist of his
testimony was that the sex was consensual. With respect to
the prior alleged incidents of abuse, appellant denied
that he ever hit S. in the face or ever threatened her
with a knife. He said that S. once grabbed a knife during
an argument but he took it from her without further
incident.
On cross-examination, appellant admitted that he had been
convicted of two felonies—evading the police in May 2001
and auto theft in July 2002. Appellant also admitted that
he was convicted for misdemeanor assault with a deadly
weapon in December 2007. Appellant further admitted that
he cheated on S. with other women. He also admitted that
he was shot with a Taser gun during the April 23, 2008
incident when the police officers were called to his
grandmother's house because of a report of domestic
violence.

18 People v. Isidro Castro, Jr., no. F056846, 2010 WL 27313 at *1-*3
19 (Jan. 7, 2010).
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III.

Instruction regarding Impeachment

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Petitioner argues he suffered a due process violation when the
trial court erred in instructing the jury pursuant to CALCRIM 316

24 that if the jury found that a witness had committed a prior felony,
25 it could be used only in evaluating the credibility of the witness.
26 Petitioner contends that giving the instruction was error because
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the trial court had ruled that with the exception of Petitioner’s
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1 prior convictions of assault with a deadly weapon and evading law
2 enforcement, Petitioner’s prior convictions were excluded for the
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purpose of impeaching Petitioner’s testimony; yet much other
evidence of Petitioner’s prior misconduct was introduced under Cal.
Evid. Code § 1109 to show Petitioner’s propensity to commit acts of

7 domestic violence.

In light of CALCRIM 316, the jury could have

8 considered this other evidence for an improper purpose, namely, to
9 evaluate Petitioner’s credibility, even if it did not reflect on his
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dishonesty and moral turpitude.

Petitioner contends that the

improper impeachment was a misapplication of state law that violated
a liberty interest and thus constituted a violation of due process

14 of law.
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A.

Standard of Decision and Scope of Review

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Title 28 U.S.C. § 2254 provides in pertinent part:

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(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the adjudication of the claim–

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(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or

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(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.

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Clearly established federal law refers to the holdings, as

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opposed to the dicta, of the decisions of the Supreme Court as of
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1 the time of the relevant state court decision.

Cullen v.

2 Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v.
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Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362,
412 (2000).
A state court’s decision contravenes clearly established

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7 Supreme Court precedent if it reaches a legal conclusion opposite
8 to, or substantially different from, the Supreme Court's or
9 concludes differently on a materially indistinguishable set of
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facts.

Williams v. Taylor, 529 U.S. at 405-06.

A state court

unreasonably applies clearly established federal law if it either 1)
correctly identifies the governing rule but applies it to a new set

14 of facts in an objectively unreasonable manner, or 2) extends or
15 fails to extend a clearly established legal principle to a new
16 context in an objectively unreasonable manner. Hernandez v. Small,
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282 F.3d 1132, 1142 (9th Cir. 2002); see, Williams, 529 U.S. at 407.
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An application of clearly established federal law is unreasonable
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20 only if it is objectively unreasonable; an incorrect or inaccurate
21 application is not necessarily unreasonable.
22 410.
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Williams, 529 U.S. at

A state court’s determination that a claim lacks merit

precludes federal habeas relief as long as fairminded jurists could
disagree on the correctness of the state court’s decision.
Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011).

Even

27 a strong case for relief does not render the state court’s
28 conclusions unreasonable.

Id.

To obtain federal habeas relief, a
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1 state prisoner must show that the state court’s ruling on a claim
2 was “so lacking in justification that there was an error well
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understood and comprehended in existing law beyond any possibility
for fairminded disagreement.”

Id. at 786-87.

The § 2254(d)

standards are “highly deferential standard[s] for evaluating state-

7 court rulings” which require that state court decisions be given the
8 benefit of the doubt, and the Petitioner bear the burden of proof.
9 Cullen v. Pinholster, 131 S.Ct. at 1398.
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Further, habeas relief is

not appropriate unless each ground supporting the state court
decision is examined and found to be unreasonable under the AEDPA.
Wetzel v. Lambert, -–U.S.--, 132 S.Ct. 1195, 1199 (2012).
In assessing under section 2254(d)(1) whether the state court’s

15 legal conclusion was contrary to or an unreasonable application of
16 federal law, “review... is limited to the record that was before the
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state court that adjudicated the claim on the merits.” Cullen v.
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Pinholster, 131 S.Ct. at 1398. Evidence introduced in federal court
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20 has no bearing on review pursuant to § 2254(d)(1). Id. at 1400.
21 Further, 28 U.S.C. § 2254(e)(1) provides that in a habeas proceeding
22 brought by a person in custody pursuant to a judgment of a state
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court, a determination of a factual issue made by a state court
shall be presumed to be correct; the petitioner has the burden of
producing clear and convincing evidence to rebut the presumption of

27 correctness.

A state court decision on the merits based on a

28 factual determination will not be overturned on factual grounds
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1 unless it was objectively unreasonable in light of the evidence
2 presented in the state proceedings.
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Miller-El v. Cockrell, 537 U.S.

322, 340 (2003).
With respect to each claim, the last reasoned decision must be
identified to analyze the state court decision pursuant to 28 U.S.C.

7 § 2254(d)(1).

Barker v. Fleming, 423 F.3d 1085, 1092 n.3 (9th Cir.

8 2005); Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir. 2003).

Here,

9 the decision of the CCA was the last reasoned decision on
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Petitioner’s claims.

Where there has been one reasoned state

judgment rejecting a federal claim, later unexplained orders
upholding that judgment or rejecting the same claim are presumed to

14 rest upon the same ground.
15 (1991).

Ylst v. Nunnemaker, 501 U.S. 797, 803

Therefore, this Court will look through the CSC’s summary

16 denial of review to the decision of the CCA.
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B. The State Court’s Decision
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The decision of the CCA on Petitioner’s claim concerning the
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20 instructions is as follows:
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CALCRIM No. 316

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Appellant contends that the trial court erred in
instructing the jury on the use of prior “misconduct” in
evaluating his credibility.

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Prior to trial, the trial court had ruled that appellant's
credibility could be impeached with the May 2001 felony
conviction for evading the police and the December 2007
misdemeanor conviction for assault with a deadly weapon.
Appellant had testified, and on cross-examination, he had
admitted to being convicted of these two crimes.

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Subsequently, the trial court instructed the jury on the
impact of prior misconduct in determining a witness's
credibility with jury instruction, CALCRIM No. 316. As
submitted to the trial court by the parties, the
instruction stated, in relevant part: “If you find that a
witness has committed a crime or other misconduct, you may
consider that fact only in evaluating the credibility of
the witness's testimony. The fact that a witness may have
committed a crime or other misconduct does not necessarily
destroy or impair a witness's credibility. It is up to you
to decide the weight of that fact and whether that fact
makes the witness less believable.”

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According to appellant, the problem with this instruction
as given is that there was evidence of several other
incidents of “misconduct,” that the trial court had
admitted for other purposes, but CALCRIM No. 316 allowed
the jury to use this evidence for the improper purpose of
impeachment. These other evidences included the uncharged
prior incidents of domestic violence and also included
character evidence such as appellant's admission that he
cheated on S. with other women.
In reviewing a purportedly erroneous jury instruction, “
‘we inquire “whether there is a reasonable likelihood that
the jury has applied the challenged instruction in a way’
that violates the Constitution.' [Citations.] In
conducting this inquiry, we are mindful that ‘ “a single
instruction to a jury may not be judged in artificial
isolation, but must be viewed in the context of the
overall charge.”’ [Citations.]” (People v. Frye (1998) 18
Cal.4th 894, 957, overruled in part on other grounds by
People v. Doolin (2009) 45 Cal.4th 390 (internal citation
and quotations omitted).) We presume that the jurors use
intelligence and common sense when applying an
instruction. (People v. Bragg (2008) 161 Cal.App.4th 1385,
1396.)
Here, there was no error in light of the actual
instructions given. First, trial court (sic) departed from
the normal instruction for CALCRIM No. 316 when it orally
instructed the jury that: “If you find that the witness's
[sic] committed a crime or other misconduct, mainly a
misdemeanor, you may consider that fact only in evaluating
the credibility of the witness's testimony. [¶] The fact
that a witness may have committed a crime or other
misconduct does not necessarily destroy or impair a
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witness's credibility. It is up to you to decide the
weight of that fact and whether that fact makes the
witness less believable.” (Italics added.)
Moreover, just immediately prior to this instruction, the
trial court gave the following instruction: “During the
trial, certain evidence was admitted for a limited
purpose. You may consider that evidence only for that
purpose and for no other. Specifically, I'm referencing
Detective Caldas's testimony and prior acts of domestic
violence [that] I'm going to refer to in greater detail in
a little bit. There may have been some other. It escapes
me right now, but those are the two main ones.”
Later, with respect to the uncharged domestic violence
evidence, the trial court instructed the jury that it
could only use that evidence for count 3 (corporal injury
on a former cohabitant). The trial court stated: “Do not
consider this evidence for any other purposes. You don't
say if he did it before, he did it this time. That's one
of many factors in deciding Count 3 only.”
Thus, the jury was instructed that it could not use
evidence that was admitted for limited purposes, such as
the evidence of domestic violence, to determine
credibility. Moreover, the trial court had orally informed
the jury that it should mainly consider the December 2007
misdemeanor conviction for assault with a deadly weapon to
assist in determining appellant's credibility. Given our
presumption that the jury follows the instructions that it
was given, we conclude that there was no error when the
trial court gave the modified CALCRIM No. 316.
People v. Isidro Castro, Jr., 2010 WL 27313 at *4-*5.

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C.

Analysis

The only basis for federal collateral relief for instructional
error is that the infirm instruction or the lack of instruction by
itself so infected the entire trial that the resulting conviction
violates due process.

Estelle v. McGuire, 502 U.S. 62, 71-72

(1991); Cupp v. Naughten, 414 U.S. 141, 147 (1973); see Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974) (noting that it must be
14

1 established not merely that the instruction is undesirable,
2 erroneous or even “universally condemned,” but that it violated some
3 right guaranteed to the defendant by the Fourteenth Amendment).
4

The instruction may not be judged in artificial isolation, but

5 must be considered in the context of the instructions as a whole and
6 the trial record.

Estelle, 502 U.S. at 72.

In reviewing an

7 ambiguous instruction, it must be determined whether there is a
8 reasonable likelihood that the jury applied the challenged
9 instruction in a way that violates the Constitution.

Estelle, 502

10 U.S. at 72-73 (reaffirming the standard as stated in Boyde v.
11 California, 494 U.S. 370, 380 (1990)).

The Court in Estelle

12 emphasized that the Court had very narrowly defined the category of
13 infractions that violate fundamental fairness, and that beyond the
14 specific guarantees enumerated in the Bill of Rights, the Due
15 Process Clause has limited operation.
16

Id. at 72-73.

The harmless error analysis applies to instructional errors as

17 long as the error does not categorically vitiate all the jury's
18 findings.

Hedgpeth v. Pulido, 555 U.S. 57, 61 (2008) (citing Neder

19 v. United States, 527 U.S. 1, 11 (1999) (quoting Sullivan v.
20 Louisiana, 508 U.S. 275 (1993) concerning erroneous reasonable doubt
21 instructions as constituting structural error)).

In Hedgpeth v.

22 Pulido, the Court cited its previous decisions that various forms of
23 instructional error were trial errors subject to harmless error
24 analysis, including errors of omitting or misstating an element of
25 the offense or erroneously shifting the burden of proof as to an
26 element.

Hedgpeth, 555 U.S. 60-61.

To determine whether a

27 petitioner proceeding pursuant to § 2254 suffered prejudice from
28 such an instructional error, a federal court must determine whether
15

1 the petitioner suffered actual prejudice by assessing whether, in
2 light of the record as a whole, the error had a substantial and
3 injurious effect or influence in determining the jury’s verdict.
4 Hedgpeth, 555 U.S. at 62; Brecht v. Abrahamson, 507 U.S. 619, 638
5 (1993).

Thus, the alleged instructional error must have had a

6 substantial and injurious effect or influence in determining the
7 jury's verdict.

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993);

8 Clark v. Brown, 450 F.3d at 905.
9

Here, the state court applied legal standards consistent with

10 the foregoing federal due process standards.

The state court viewed

11 the challenged instruction in light of the other instructions.
12 Consideration of the totality of the instructions supports the state
13 court’s determination that the instructions were not misleading or
14 incorrect.

The credibility instruction was modified to focus the

15 jury on the misdemeanor conviction of assault, and the jury was
16 expressly reminded that it was up to them to weigh such evidence in
17 determining whether the witness was believable.

Consideration of

18 the other evidence of misconduct was expressly limited to the
19 cohabitation charge (count 3), on which Petitioner was acquitted and
20 instead suffered a misdemeanor battery charge.

The jury was

21 instructed it could not use the evidence of prior domestic
22 misconduct for any other purpose, and it was separately instructed
23 that it could consider evidence admitted for a limited purpose only
24 for the stated limited purpose.
25 33.)

(LD 12, 3 RT 512-3, 516-17, 531-

In light of the totality of the instructions given, the state

26 court properly concluded it was not reasonably likely the jury
27 applied the challenged instruction in a way that rendered the trial
28 fundamentally unfair.
16

1

As a general proposition, jurors are presumed to follow the

2 instructions given.
3 (2000).

See Weeks v. Angelone, 528 U.S. 225, 234

Nothing in the record suggests it was inappropriate to rely

4 on the presumption.

Although the jury had questions, there was no

5 question regarding instructions or evidence relating to credibility
6 or prior misconduct, and there was no other indication of confusion
7 or uncertainty relating to credibility or prior misconduct.

(LD 12,

8 3 RT 597-632.)
9

Petitioner cites County Court of Ulster N.Y. v. Allen, 442 U.S.

10 140 (1979) (Ulster), holding that instructions containing mandatory
11 presumptions based on evidentiary findings can violate due process
12 by placing an improper burden on the defendant.

Id. at 157-58.

13 However, the Court in Ulster recognized that a permissive
14 presumption, which allows but does not require the trier of fact to
15 infer an elemental fact from proof of a basic one, and which places
16 no burden of any kind on defendant, leaves the jury free to credit
17 or reject an inference and does not shift burden of proof unless
18 under the facts of the case there is no rational way the trier could
19 make the connection permitted by the inference.

Id. at 157-58.

The

20 instruction concerning the use of convictions for credibility
21 determinations permitted the jury to find that the misconduct
22 existed and to determine the weight, if any, to be given to it.
23 Thus, Ulster does not aid Petitioner.
24

Likewise, Petitioner’s claim is not supported by Leary v.

25 United States, 395 U.S. 6 (1969).
26
27
28

In Leary, the Court stated that a

criminal statutory presumption regarding the knowledge element of a
crime is unconstitutional “unless it can at least be said with
17

1 substantial assurance that the presumed fact is more likely than not
2 to flow from the proved fact on which it is made to depend.”
3
4
5
6

36 (footnote omitted).

Id. at

The instruction here did not embody a

mandatory presumption, but rather instructed the jury that it “may”
consider a witness’s felony conviction or other crime or misconduct

7 in determining his or her credibility; it also expressly placed the
8 weighing of any fact in the hands of the trier of fact.
9
10
11
12
13

Finally, even if there was some ambiguity in the instructions,
the record does not reflect that the instructions would have had a
substantial and injurious effect or influence in determining the
jury’s verdict.

Petitioner correctly contends that credibility was

14 a central issue in the case.

However, evidence independent of the

15 impeachment evidence conflicted with Petitioner’s version of the
16 events, including the
17
broken bedroom window
18
the front door at the
19
20 S.’s neck, which were

photographic evidence of the bent screen and
that contradicted the claim of entry through
victim’s invitation; red marks on the side of
inconsistent with Petitioner’s claim that he

21 did not drag S. through the apartment or force her to perform oral
22 copulation; and evidence that S. sent her mother a text message to
23
24
25
26

call police after Petitioner fell asleep, which tended to show that
the victim did not instigate any sex acts.

There was no evidence

supporting Petitioner’s suggestion that S. falsely accused him

27 because she was angry at him for having sex with other women.
28 ///
18

1

In sum, the instructions did not have a substantial or

2 injurious effect or influence in determining the jury’s verdict, and
3
4
5
6

no instructional error rendered the trial fundamentally unfair.
Accordingly, it will be recommended that Petitioner’s claim of a
violation of due process from the credibility instructions be

7 denied.
8

IV.

9

Petitioner argues that his right to due process was violated

10
11
12
13

Insufficient Evidence

because the evidence is insufficient to support the burglary
conviction. Petitioner contends there was no evidence that
Petitioner had the specific intent to commit an act of forcible oral

14 copulation when he entered the building or entered the living room,
15 and thus there is insufficient evidence of burglary.

(FAP, doc. 24

16 at 35-39.)
17
A. The State Court’s Decision
18
The pertinent portion of the CCA’s decision is as follows:
19
CONVICTION FOR BURGLARY
20
21
22
23
24
25
26
27
28

Appellant also contends that there was insufficient
evidence to support his conviction for burglary. He argues
that there was no evidence that he had the specific intent
to commit oral copulation, as opposed to some other
felony, at the time he entered the living room.
“ ‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire
record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that
is, evidence that is reasonable, credible, and of solid
value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ [Citation.]
19

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28

We determine ‘whether, after viewing the evidence in the
light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’ [Citation.] In so
doing, a reviewing court ‘presumes in support of the
judgment the existence of every fact the trier could
reasonably deduce from the evidence.’ [Citation.] ‘This
standard applies whether direct or circumstantial evidence
is involved.’ [Citation.]” (People v. Avila (2009) 46
Cal.4th 680, 701.)
“The crime of burglary consists of an act—unlawful entry—
accompanied by the ‘intent to commit grand or petit
larceny or any felony.’ (§ 459.) One may be liable for
burglary upon entry with the requisite intent to commit a
felony or a theft (whether felony or misdemeanor),
regardless of whether the felony or theft committed is
different from that contemplated at the time of entry, or
whether any felony or theft actually is committed.
[Citations.]” (People v. Montoya (1994) 7 Cal.4th 1027,
1041–1042, fn. omitted.) “[T]he jury need not unanimously
decide, or even be certain, which felony defendant
intended [to commit] as long as it finds beyond a
reasonable doubt that he intended some felony.” (People v.
Hughes (2002) 27 Cal.4th 287, 351.)
“As a practical matter, if the defendant commits, or gives
some indication of intending to commit, theft or a felony
in a building shortly after entering it, no great
inferential leap is necessary to conclude that the intent
to commit the supporting offense existed at the time of
entry. Thus, temporal or spatial proximity between the
entry and the target or predicate crime are factors that
may reasonably be considered by the jury when determining
whether the requisite intent existed at the moment of
entry, but they are not elements of the crime of
burglary.” (People v. Kwok (1998) 63 Cal.App.4th 1236,
1246.)
Here, appellant contends that even if the jury is correct
that he committed forcible oral copulation, there was
insufficient evidence to support the jury finding that he
intended to commit forcible oral copulation at the time he
dragged S. into the living room. However, it is
permissible for a jury to infer that a defendant had the
requisite intent to commit a felony if he commits the
offense shortly after entering the room. (People v. Kwok,
20

1
2
3
4
5
6
7

supra, 63 Cal . App.4th 1245.) In this case, there is
substantial evidence that he committed forcible oral
copulation shortly after he entered the living room. S.
testified that appellant grabbed her by the back of her
head and arms and dragged her into the living room, where
he forced her down on the couch. He then removed his
pants, and ordered S. to suck his penis. S. refused,
whereupon appellant slapped S.'s face and pushed her head
towards his lap and forced his penis into her mouth. From
this record, the jury could find or infer that appellant
dragged S. into the living room with the intent to commit
forcible oral copulation.

8
9
10
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21
22
23
24

Appellant further contends that, as a matter of law, he
could not be convicted for burglary even if he entered the
living room with the intent to commit forcible oral
copulation. Here, the jury found that appellant did not
enter S.'s bedroom with the intent to commit a felony.
Instead, the jury found that appellant acquired the intent
to commit a felony when he entered the living room.
Appellant argues that, based upon the jury's findings, he
could not be convicted of burglary because there were no
additional facts that would allow the movement from the
bedroom to the living room to constitute burglary, such as
an increase in the danger presented to the victim or a
differing expectation of privacy between the bedroom and
the living room.
In People v. Sparks (2002) 28 Cal.4th 71, 73, the
California Supreme Court held that “[a] defendant's entry
into a bedroom within a single-family house with the
requisite intent can support a burglary conviction if that
intent was formed only after the defendant's entry into
the house.” Section 459 defines burglary as the entry into
“any ... room ... with intent to commit ... larceny or any
felony.” The California Supreme Court concluded that “the
unadorned word ‘room’ in section 459 reasonably must be
given its ordinary meaning.” (People v. Sparks, supra, 28
Cal.4th at p. 87.)

27

In this case, a living room is a “room,” and the jury
found that appellant entered into that room with the
intent to commit felony forcible oral copulation. Thus,
the facts found by the jury are sufficient to convict
appellant of burglary.

28

Appellant, however, states that he cannot be convicted of

25
26

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2
3
4
5
6
7
8
9
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14

burglary because the living room is not “a separate,
individual dwelling place” distinct from the bedroom. (See
People v. Thomas (1991) 235 Cal.App.3d 899, 906 fn. 2
(Thomas).) However, that observation by the Thomas court
applied to a hypothetical case which involves multiple
convictions for burglary. Here, appellant was charged with
only one count of burglary. Thus, that observation (which
was dictum and in a footnote in the Thomas case) is
inapplicable to this case.
Appellant also contends that the purpose of the burglary
statute, which is to protect citizens in their home and
dwellings from unauthorized entry, see Thomas, supra, 235
Cal.App.3d at p. 906, does not support his conviction for
burglary. According to appellant, he could be convicted
for burglary only if the movement into the living room
increased the danger to S. from the unauthorized entry.
(See People v. McCormack (1991) 234 Cal.App .3d 253, 256.)
Here, there was an increase in danger to S. from the
movement into the living room because S. was forcibly
moved away from a room that had possible escape path,
since she could jump out of the broken window to escape
from appellant or where it was more likely that any call
for help could be heard by passersby.

15
16
17

Thus, appellant could be convicted for burglary based upon
this record.
People v. Castro, 2010 WL 27313 at *5-*7.

18
19
20

B.

Analysis

To determine whether a conviction violates the constitutional

21 guarantee of due process because of insufficient evidence, a federal
22 court ruling on a petition for writ of habeas corpus must determine
23
24
25
26

whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.

Jackson v.

Virginia, 443 U.S. 307, 319, 20-21 (1979); Windham v. Merkle, 163

27 F.3d 1092, 1101 (9th Cir. 1998); Jones v. Wood, 114 F.3d 1002, 1008
28 (9th Cir. 1997).
22

All evidence must be considered in the light most favorable to

1

2 the prosecution.
3
4
5
6

Jackson, 443 U.S. at 319; Jones, 114 F.3d at 1008.

It is the trier of fact’s responsibility to resolve conflicting
testimony, weigh evidence, and draw reasonable inferences from the
facts, and it must be assumed that the trier resolved all conflicts

7 in a manner that supports the verdict.
8 U.S. at 319; Jones, 114 F.3d at 1008.

Jackson v. Virginia, 443
The relevant inquiry is not

9 whether the evidence excludes every hypothesis except guilt, but
10
11
12
13

rather whether the jury could reasonably arrive at its verdict.
United States v. Mares, 940 F.2d 455, 458 (9th Cir. 1991).
Circumstantial evidence and the inferences reasonably drawn

14 therefrom can be sufficient to prove any fact and to sustain a
15 conviction, although mere suspicion or speculation does not rise to
16 the level of sufficient evidence. United States v. Lennick, 18 F.3d
17
814, 820 (9th Cir. 1994); United States v. Stauffer, 922 F.2d 508,
18
514 (9th Cir. 1990); see Jones v. Wood, 207 F.3d at 563. The court
19
20 must base its determination of the sufficiency of the evidence from
21 a review of the record.
22
23
24
25
26

Jackson at 324.

The Jackson standard must be applied with reference to the
substantive elements of the criminal offense as defined by state
law.

Jackson, 443 U.S. at 324 n.16; Windham, 163 F.3d at 1101.

However, the minimum amount of evidence that the Due Process Clause

27 requires to prove an offense is purely a matter of federal law.
28 Coleman v. Johnson, - U.S. -, 132 S.Ct. 2060, 2064 (2012) (per
23

1 curiam).

For example, under Jackson, juries have broad discretion

2 to decide what inferences to draw and are required only to draw
3
4
5
6

reasonable inferences from basic facts to ultimate facts.

Id.

Further, under the AEDPA, federal courts must apply the Jackson
standards with an additional layer of deference.

Coleman v.

7 Johnson, - U.S. -, 132 S.Ct. 2060, 2062 (2012); Juan H. v. Allen,
8 408 F.3d 1262, 1274 (9th Cir. 2005).

This Court thus asks whether

9 the state court decision being reviewed reflected an objectively
10
11
12
13

unreasonable application of the Jackson standard to the facts of the
case.

Coleman v. Johnson, 132 S.Ct. at 2062; Juan H. v. Allen, 408

F.3d at 1275.

The determination of the state court of last review

14 on a question of the sufficiency of the evidence is entitled to
15 considerable deference under 28 U.S.C. § 2254(d).

Coleman v.

16 Johnson, 132 S.Ct. at 2065.
17
Here, Petitioner essentially argues that the evidence did not
18
necessarily show he specifically intended to commit forcible
19
20 oral copulation, as distinct from another felony, when he dragged S.
21 from her bedroom to the living room.

However, it was objectively

22 reasonable for the state court to conclude that a rational trier of
23
24
25
26

fact could infer the intent to commit forcible oral copulation from
the strong evidence that Petitioner dragged the victim to the living
room from the bedroom and then shortly afterwards forced her to

27 engage in oral copulation.

Accordingly, it will be recommended that

28
24

1 Petitioner’s due process claim of insufficiency of the evidence be
2 denied.
3
4
5
6

Petitioner further contends it was an erroneous application of
state law to convict him on the theory that he committed a burglary
by entering the living room from the bedroom with the specific

7 intent to commit oral copulation because the living room was not an
8 area of greater privacy or security, and thus Petitioner’s conduct
9 was not within the legislative purpose in enacting the burglary
10
11
12
13

statute.

(FAP, doc. 24 at 39-47.)

based on state law.

However, this contention is

The state court expressly rejected Petitioner’s

argument that as a matter of law, his conduct could not amount to a

14 burglary.
15

Federal habeas relief is available to state prisoners only to

16 correct violations of the United States Constitution, federal laws,
17 or treaties of the United States.

28 U.S.C. ' 2254(a).

Federal

18 habeas relief is not available to retry a state issue that does not
19 rise to the level of a federal constitutional violation.

Wilson v.

20 Corcoran, 562 U.S. C , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire,
21 502 U.S. 62, 67-68 (1991).

Alleged errors in the application of

22 state law are not cognizable in federal habeas corpus.
23 Schaivo, 289 F.3d 616, 623 (9th Cir. 2002).
24 state court's interpretation of state law.
25 F.3d 1180, 1389 (9th Cir. 1996).

Souch v.

The Court accepts a
Langford v. Day, 110

In a habeas corpus proceeding,

26 this Court is bound by the California Supreme Court=s interpretation
27 of California law unless the interpretation is deemed untenable or a
28
25

1 veiled attempt to avoid review of federal questions.

Murtishaw v.

2 Woodford, 255 F.3d 926, 964 (9th Cir. 2001).
3

Here, there is no indication that the state court’s

4 interpretation of state law was associated with an attempt to avoid
5 review of federal questions.

Thus, this Court is bound by the state

6 court’s interpretation and application of state law.

Petitioner’s

7 claim of state law error should be dismissed because it is not
8 cognizable in this proceeding.
9
10

V.

Certificate of Appealability

Unless a circuit justice or judge issues a certificate of

11 appealability, an appeal may not be taken to the Court of Appeals
12 from the final order in a habeas proceeding in which the detention
13 complained of arises out of process issued by a state court.

28

14 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
15 (2003).

A district court must issue or deny a certificate of

16 appealability when it enters a final order adverse to the applicant.
17 Rule 11(a) of the Rules Governing Section 2254 Cases.
18

A certificate of appealability may issue only if the applicant

19 makes a substantial showing of the denial of a constitutional right.
20 ' 2253(c)(2).

Under this standard, a petitioner must show that

21 reasonable jurists could debate whether the petition should have
22 been resolved in a different manner or that the issues presented
23 were adequate to deserve encouragement to proceed further.

Miller-

24 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
25 473, 484 (2000)).

A certificate should issue if the Petitioner

26 shows that jurists of reason would find it debatable whether: (1)
27 the petition states a valid claim of the denial of a constitutional
28
26

1 right, and (2) the district court was correct in any procedural
2 ruling.
3

Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

In determining this issue, a court conducts an overview of the

4 claims in the habeas petition, generally assesses their merits, and
5 determines whether the resolution was debatable among jurists of
6 reason or wrong.

Id.

An applicant must show more than an absence

7 of frivolity or the existence of mere good faith; however, the
8 applicant need not show that the appeal will succeed.

Miller-El v.

9 Cockrell, 537 U.S. at 338.
10

Here, it does not appear that reasonable jurists could debate

11 whether the petition should have been resolved in a different
12 manner.

Petitioner has not made a substantial showing of the denial

13 of a constitutional right.

Accordingly, it will be recommended that

14 the Court decline to issue a certificate of appealability.
15

VI.

Recommendations

16

In accordance with the foregoing analysis, it is RECOMMENDED

17 that:
18

1) Petitioner’s state law claims be DISMISSED without leave to

19 amend;
20

2) The first amended petition for writ of habeas corpus be

21 DENIED;
22

3) Judgment be ENTERED for Respondent; and

23

4) The Court DECLINE to issue a certificate of appealability.

24

These findings and recommendations are submitted to the United

25 States District Court Judge assigned to the case, pursuant to the
26 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local
27 Rules of Practice for the United States District Court, Eastern
28 District of California.

Within thirty (30) days after being served
27

1 with a copy, any party may file written objections with the Court
2 and serve a copy on all parties.

Such a document should be

3 captioned AObjections to Magistrate Judge=s Findings and
4 Recommendations.@

Replies to the objections shall be served and

5 filed within fourteen (14) days (plus three (3) days if served by
6 mail) after service of the objections.

The Court will then review

7 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C).
8 The parties are advised that failure to file objections within the
9 specified time may result in the waiver of rights on appeal.
10 Wilkerson v. Wheeler, - F.3d -, -, no. 11-17911, 2014 WL 6435497, *3
11 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391,
12 1394 (9th Cir. 1991)).
13
14
15 IT IS SO ORDERED.
16
17

Dated:

December 8, 2014

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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