Pham v. Jerry Powers
Filing
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ORDER denying Petition for Writ of Habeas Corpus and declining to issue a certificate of appealability signed by Magistrate Judge Michael J. Seng on 12/8/2014. CASE CLOSED.(Lundstrom, T)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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Case No. 1:13-cv-00656 MJS (HC)
PAUL KIET PHAM,
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v.
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ORDER DENYING PETITION FOR WRIT
Petitioner, OF HABEAS CORPUS AND DECLINING
TO ISSUE CERTIFICATE OF
APPEALABILITY
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JERRY POWERS,
Respondent.
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Petitioner is a state probationer proceeding pro se with a petition for writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. Respondent, Los Angeles County Chief
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Probation Officer, is represented by William K. Kim of the office of the California Attorney
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General. Both parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. §
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636(c). (ECF Nos. 6, 17.)
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I.
PROCEDURAL BACKGROUND
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Petitioner is currently on probation supervised by Los Angeles County pursuant to
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a judgment of the Superior Court of California, County of Madera, following his
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conviction by a jury on June 21, 2010 of felony communicating with a minor with the
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intent to commit oral copulation and misdemeanor annoying or molesting a minor.
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People v. Kiet Pham, 2012 Cal. App. Unpub. LEXIS 1194, 1-2 (Feb. 15, 2012). On
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December 1, 2010, the trial court placed Petitioner on felony probation with 120 days of
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local jail time, and ordered him to register as a sex offender pursuant to California Penal
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Code § 290. Id.
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Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate
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District. (Lodged Doc. 9.) On February 15, 2012, the court affirmed the judgment.
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(Answer, Ex. A, ECF No. 28.) Petitioner filed a petition for review with the California
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Supreme Court on March 21, 2012. (Lodged Doc. 12.) The Supreme Court summarily
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denied the petition on May 9, 2012. (Lodged Doc. 13.)
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Petitioner filed the instant federal habeas petition on May 6, 2013. (Pet., ECF No.
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1.) Petitioner later filed a second amended petition on November 8, 2013. (2nd Am. Pet.,
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ECF No. 24.) The second amended petition serves as the operative petition in this
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matter. In the petition, Petitioner presents three claims for relief: 1) that the trial court
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violated his due process rights in by not excluding prejudicial statements of witness
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Brandon Belt; 2) that it was a violation of his equal protection rights to require mandatory
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sex offender registration for a conviction of communicating with a minor with the intent to
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commit oral copulation; and 3) that it was a violation of his equal protection rights to
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require mandatory sex offender registration for conviction of annoying or molesting a
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minor. (2nd Am. Pet. at 16.)
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Respondent filed an answer to the petition on January 14, 2014, and Petitioner
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filed a traverse to the answer on February 14, 2014. (Answer and Traverse, ECF Nos.
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27, 30.) The matter stands ready for adjudication.
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II.
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STATEMENT OF THE FACTS1
One evening, motel manager Kamlesh Patel testified, an "Asian
guy"—a "skinny, tall, little bit old man"—walked into his motel and asked
about rooms and prices. After Patel showed him one room, the man asked
to see another, left without saying anything, and walked across the street
to the fire station. Asked whether he would recognize him, Patel replied,
"I'm not sure. Maybe, may[be] not."
The Fifth District Court of Appeal‘s summary of the facts in its February 15, 2012 opinion is
presumed correct. 28 U.S.C. § 2254(e)(1).
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Volunteer firefighter Brandon Belt testified that he and about a halfdozen other firefighters were cleaning the fire truck when Pham walked
over from the motel across the street and asked if there were any other
hotels. Pham said that the motel across the street "wasn't a very nice
one." Belt agreed that the motel across the street was "not the best." He
could see quality was an issue for Pham and pointed out where the other
hotels were. Pham asked if he could use the phone, and Belt said he
could, but 20 or 30 minutes later Pham was still on the phone. All of the
other firefighters had gone home.
Belt saw that Pham was not talking on the phone and, in reply to
his question why, Pham said his friend had put him on hold. Belt said he
had to lock up and go home. He asked Pham to hang up. Pham hung up,
walked outside with Belt, and asked a few more questions about the
location and quality of the other hotels. Belt testified that Pham asked him
if there was a "brothel" in town. Belt did not know what a "brothel" was and
he told Pham he was not sure.
Belt thought Pham "kind of seemed confused" when he asked if
Belt had any friends with whom he could stay. Feeling comfortable about
neither the question nor the "smirk on his face," Belt replied in the
negative and said he had to lock up the fire station and go home. He
called a police sergeant with whom he communicated from time to time
and described the clothes Pham was wearing and the direction he was
walking. "If he was going to ask somebody else that question, he could be
in danger," Belt testified, adding, "And if you were to ask the wrong person
that question, not being from the town, you could wind up getting severely
hurt." As Belt was about to leave the fire station, he saw Pham talking to
three boys down the street.
All three boys—who were 14, 15, and 16 years old—testified. The
14 year old testified that Pham asked "if we had a place to stay for him"
and that the boys told him about "a hotel down the street" but that he said
"he didn't like it." After the boys told him where another hotel was, he said,
"No, I don't have that much money." He said he preferred to "stay at a
house or something." Then he asked, "Are you trying to get money?" The
15 year old said, "Well, that depends." Pham asked, "Are you going to
give me head?" The 15 year old replied, "Hell no," and started yelling at
him. Pham walked away in one direction as the boys walked away in
another direction. The 14 year old testified he was "70 percent sure" Pham
used the word "head" and "100 percent sure" he asked for oral sex, but
acknowledged he testified, "I'm pretty sure," at a prior proceeding when
asked, "Are you sure that's what he said?" To the 14 year old, "pretty
sure" was about the same as "100 percent sure." He was "not completely
sure" if Pham used the word "head" and acknowledged he used the word
"bed" to ask about a place to stay.
The 16 year old testified that Pham asked "weird questions" about
staying the night, taking a shower, and sleeping on a couch or in a bed
and then asked the 15 year old "to give him head." All three boys said
"no." Pham asked about another place to stay. As the boys started "listing
off places around town," Pham slowly started walking away. When the 16
year old talked with a police officer that night, he "wasn't too sure" whether
Pham asked for "head" or "sex." At trial, he was positive that Pham asked
for "head."
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The 15 year old testified that Pham asked if he could take a shower
at one of their houses and if he could sleep on one of their couches. The
boys said "no." Pham asked the 15 year old if he wanted to make some
money. "Well, sure," he replied, and he asked Pham what he had to do.
Pham said that "if I was to give him head he would give me money." Some
of Pham's words were difficult to make out. The 15 year old told the
prosecutor that Pham was speaking English but "had a very bad accent"
and that he could "barely understand him." The parts he could not make
out he filled in with context.
As the 15 year old turned and started walking away, Pham started
walking away in the other direction. The two other boys approached the 15
year old as he was walking away and asked, "Where are you going? Are
you going home?" He replied, "Yeah. I'm going to go tell my mom to call
the cops on this guy because he just propositioned me for sex." When he
said that, the other boys responded differently. The 14 year old had a
shocked look on his face. The 16 year old started laughing. "[He] thought I
was joking around."
The 15 year old admitted that in 2007, when he was a freshman in
high school, he called in a bomb threat that led to the evacuation of the
school. As officers searched "for the bomb that was not there," he tried to
let them know that "it was just a joke," but they thought he was "just
messing around" and said, "Get out of here." He never called law
enforcement, the fire department, the school, or anyone else to admit
responsibility.
A police officer executing a search warrant for Pham's car found
evidence that "someone had been traveling with a lot of belongings" and
perhaps even living in his car. The officer found no evidence that someone
might have been soliciting sex from a minor.
When Belt got home, he looked up "brothel" out of curiosity. He
found out that a "brothel" is "a prostitution house." He was not sure what a
hostel is. Asked whether the question posed to him was, "Is there a
brothel or a YMCA?" he testified, "Could have been, I don't recollect." After
refreshing his recollection with a prior transcript, defense counsel asked
him, "[W]hen Mr. Pham asked you about the brothel, did he ask, 'Is there a
brothel or a YMCA?'" He testified, "Yes."
The lead Saturday night services pastor at a church in Visalia
characterized Pham not only as a devout Christian who attended church
regularly but also as a "very culturally and linguistically different" person.
As a mandated reporter, the pastor was instructed to look for inappropriate
behavior by adults toward children. He never received a report from
anyone about any inappropriate behavior by Pham and never observed
anything inappropriate about Pham's behavior with teenaged boys,
including his own two sons, with whom Pham had probably 80 to 100
contacts with no other adults around. Asking to stay at a stranger's house
was consistent with Pham's "extremely frugal" character. Sometimes he
stayed in the homes of strangers, some of whom were church members,
some of whom were not, and sometimes he stayed the night in his car to
save money. The pastor said, "He has a problem with stuttering, and
English is not his first language," so "his English is hard to understand."
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The pastor's wife, the director of the Saturday night children's
department at the church, was also a mandated reporter. The charge
Pham was facing at trial did "not line up with any behavior [she had] seen
around other children or [her] children, who are the same age boys."
Pham did not, in her opinion, have an inappropriate liking for young men.
After four years of observing him, she had never received a report from
anyone about any inappropriate behavior by him. He "can be difficult to
understand at times" because "English is not his first language and he has
a tendency to stutter." So "a lot of times you'll ask him to repeat himself or
to slow down" and "have to have it in context to be able to understand
what he's saying."
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One of the teenaged sons of the pastor and his wife characterized
Pham as "socially awkward." "Almost naïve," he testified, noting that Pham
did not understand how just starting "a conversation with younger people"
is "not normal" in our society. Asked if he had encountered "anything
inappropriate, awkward or odd" in his contacts with Pham, he testified,
"Inappropriate, no[;] awkward or odd, yes." He had never heard Pham use
slang terminology.
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Pham did not testify. The defense called witnesses who testified to
Pham's good character and stated that his heavy accent made it difficult at
times to understand him. Defense counsel argued to the jury that Belt may
have misunderstood Pham and mistook "brothel" for "hostel." Defense
counsel also argued that the boys may have mistakenly heard Pham say
"head" when he actually said "bed."
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People v. Pham, 2012 Cal. App. Unpub. LEXIS 1194, 2-9 (Cal. App. 5th Dist. Feb. 15,
2012).
III.
GOVERNING LAW
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A.
Jurisdiction
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Relief by way of a petition for writ of habeas corpus extends to a person in
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custody pursuant to the judgment of a state court if the custody is in violation of the
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Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. §
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2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 fn.7 (2000). Petitioner asserts that he
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suffered violations of his rights as guaranteed by the U.S. Constitution. In addition, the
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conviction challenged arises out of the Madera County Superior Court, which is located
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within the jurisdiction of this court. 28 U.S.C. § 2241(d); 2254(a). Accordingly, the Court
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has jurisdiction over the action.
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B.
Legal Standard of Review
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On April 24, 1996, Congress enacted the Antiterrorism and Effective Death
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Penalty Act of 1996 (―AEDPA‖), which applies to all petitions for writ of habeas corpus
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filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood,
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114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment of
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the AEDPA; thus, it is governed by its provisions.
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Under AEDPA, an application for a writ of habeas corpus by a person in custody
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under a judgment of a state court may be granted only for violations of the Constitution
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or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. at 375 n.
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7 (2000). Federal habeas corpus relief is available for any claim decided on the merits in
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state court proceedings if the state court's 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
(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.
28 U.S.C. § 2254(d).
1.
Contrary to or an Unreasonable Application of Federal Law
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A state court decision is "contrary to" federal law if it "applies a rule that
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contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts
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that are materially indistinguishable from" a Supreme Court case, yet reaches a different
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result." Brown v. Payton, 544 U.S. 133, 141 (2005) citing Williams, 529 U.S. at 405-06.
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"AEDPA does not require state and federal courts to wait for some nearly identical
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factual pattern before a legal rule must be applied. . . . The statue recognizes . . . that
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even a general standard may be applied in an unreasonable manner" Panetti v.
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Quarterman, 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The
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"clearly established Federal law" requirement "does not demand more than a ‗principle'
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or ‗general standard.'" Musladin v. Lamarque, 555 F.3d 830, 839 (2009). For a state
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decision to be an unreasonable application of clearly established federal law under §
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2254(d)(1), the Supreme Court's prior decisions must provide a governing legal principle
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(or principles) to the issue before the state court. Lockyer v. Andrade, 538 U.S. 63, 70-
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71 (2003). A state court decision will involve an "unreasonable application of" federal
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law only if it is "objectively unreasonable." Id. at 75-76, quoting Williams, 529 U.S. at
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409-10; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). In Harrington v. Richter, the
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Court further stresses that "an unreasonable application of federal law is different from
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an incorrect application of federal law." 131 S. Ct. 770, 785 (2011), (citing Williams, 529
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U.S. at 410) (emphasis in original). "A state court's determination that a claim lacks
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merit precludes federal habeas relief so long as ‗fairminded jurists could disagree' on the
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correctness of the state court's decision." Id. at 786 (citing Yarborough v. Alvarado, 541
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U.S. 653, 664 (2004)). Further, "[t]he more general the rule, the more leeway courts
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have in reading outcomes in case-by-case determinations." Id.; Renico v. Lett, 130 S.
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Ct. 1855, 1864 (2010). "It is not an unreasonable application of clearly established
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Federal law for a state court to decline to apply a specific legal rule that has not been
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squarely established by this Court." Knowles v. Mirzayance, 129 S. Ct. 1411, 1419
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(2009), quoted by Richter, 131 S. Ct. at 786.
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2.
Review of State Decisions
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"Where there has been one reasoned state judgment rejecting a federal claim,
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later unexplained orders upholding that judgment or rejecting the claim rest on the same
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grounds." See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). This is referred to as the
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"look through" presumption. Id. at 804; Plascencia v. Alameida, 467 F.3d 1190, 1198
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(9th Cir. 2006).
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unreasonable legal or factual conclusion, "does not require that there be an opinion from
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the state court explaining the state court's reasoning." Richter, 131 S. Ct. at 784-85.
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"Where a state court's decision is unaccompanied by an explanation, the habeas
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petitioner's burden still must be met by showing there was no reasonable basis for the
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state court to deny relief." Id. ("This Court now holds and reconfirms that § 2254(d) does
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not require a state court to give reasons before its decision can be deemed to have been
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‗adjudicated on the merits.'").
Determining whether a state court's decision resulted from an
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Richter instructs that whether the state court decision is reasoned and explained,
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or merely a summary denial, the approach to evaluating unreasonableness under §
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2254(d) is the same: "Under § 2254(d), a habeas court must determine what arguments
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or theories supported or, as here, could have supported, the state court's decision; then
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it must ask whether it is possible fairminded jurists could disagree that those arguments
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or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786.
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Thus, "even a strong case for relief does not mean the state court's contrary conclusion
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was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. at 75). AEDPA "preserves
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authority to issue the writ in cases where there is no possibility fairminded jurists could
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disagree that the state court's decision conflicts with this Court's precedents." Id. To put
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it yet another way:
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As a condition for obtaining habeas corpus relief from a federal
court, a state prisoner must show that the state court's ruling on the claim
being presented in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.
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Id. at 786-87. The Court then explains the rationale for this rule, i.e., "that state courts
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are the principal forum for asserting constitutional challenges to state convictions." Id. at
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787. It follows from this consideration that § 2254(d) "complements the exhaustion
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requirement and the doctrine of procedural bar to ensure that state proceedings are the
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central process, not just a preliminary step for later federal habeas proceedings." Id.
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(citing Wainwright v. Sykes, 433 U.S. 72, 90 (1977).
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3.
Prejudicial Impact of Constitutional Error
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The prejudicial impact of any constitutional error is assessed by asking whether
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the error had "a substantial and injurious effect or influence in determining the jury's
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verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551
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U.S. 112, 121-22 (2007) (holding that the Brecht standard applies whether or not the
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state court recognized the error and reviewed it for harmlessness). Some constitutional
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errors, however, do not require that the petitioner demonstrate prejudice. See Arizona v.
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Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic, 466 U.S. 648, 659
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(1984). Furthermore, where a habeas petition governed by AEDPA alleges ineffective
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assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), the
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Strickland prejudice standard is applied and courts do not engage in a separate analysis
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applying the Brecht standard. Avila v. Galaza, 297 F.3d 911, 918, n. 7 (2002). Musalin
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v. Lamarque, 555 F.3d at 834.
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IV.
REVIEW OF PETITION
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A.
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Petitioner contends the trial court‘s denial of a motion to exclude the statements of
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firefighter Belt was a violation of Petitioner's due process rights. (2nd Am. Pet. at 17-20.)
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Specifically, Petitioner claims that Belt's testimony regarding Petitioner asking about a
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brothel violated his due process rights. (Id.)
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Claim One – Failure to Exclude Evidence
1.
State Court Decision
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Petitioner presented his claim in his direct appeal to the California Court of
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Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the
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Court of Appeal and summarily denied in subsequent petition for review by the California
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Supreme Court. (See Lodged Docs. 9-13, Answer, Ex. A.) Since the California Supreme
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Court denied the petition in a summary manner, this Court ―looks through‖ the decisions
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and presumes the Supreme Court adopted the reasoning of the Court of Appeal, the last
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state court to have issued a reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797,
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804-05 & n.3 (1991) (establishing, on habeas review, ―look through‖ presumption that
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higher court agrees with lower court‘s reasoning where former affirms latter without
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discussion); see also LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000)
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(holding federal courts look to last reasoned state court opinion in determining whether
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state court‘s rejection of petitioner‘s claims was contrary to or an unreasonable
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application of federal law under 28 U.S.C. § 2254(d)(1)).
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In denying Petitioner‘s claim, the Court of Appeal explained that:
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I. Admission of "Brothel" Testimony
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Pham moved in limine to exclude firefighter Belt's testimony that
Pham asked him if there was a "brothel" in town. Defense counsel argued
that "the prejudice far outweighs any probative value." In opposition, the
prosecutor argued that Belt's testimony was "quite relevant" to show that
he and Pham spoke English without any problem understanding each
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other and that Pham talked with the 15 year old after he talked with Belt.
The prosecutor argued that Pham's "inquiring about a brothel and other
such things in the area really goes to the heart of the specific intent that's
required for the charges in this case."
Arguing that Belt's testimony was "cumulative" to evidence that
Pham spoke English and then talked with the 15 year old, defense
counsel focused on Belt's testimony that Pham asked about a brothel.
Commenting that "a major part of the defense's case" at his first trial "was
whether or not he asked for a brothel or a host[el]," defense counsel
observed that the word "brothel" was just part of the question, "'Is there a
brothel or a YMCA here?'" Defense counsel argued: "Whether it's brothel
or host[el] is not relevant to prove any element of the offenses." Finally,
"even if he did ask for a brothel, the probative value in that is diminished
by the prejudice that far ... exceeds any probative value."
The court characterized Belt's testimony about speaking with Pham
in English as "relevant" and his testimony about corroborating Pham's
subsequent conduct as "useful." As to "the inquiry concerning a brothel,
the specific inquiry about a brothel itself is not an element of the charge
here, but if believed by the jury, that would be an indication that the person
making the inquiry is out seeking some sort of sexual gratification. And
that, I believe, is relevant to this proceeding." Finding that the prejudice did
not outweigh the probative value (Evid. Code, § 352), the court denied the
motion.
A. Relevance and Evidence Code Section 1101
"We review for abuse of discretion a trial court's rulings on
relevance and admission or exclusion of evidence under Evidence Code
section[] 1101 .... [Citations.]" (People v. Harrison (2005) 35 Cal.4th 208,
230.) The trial court has considerable discretion in determining the
relevance of evidence. (People v. Clark (2011) 52 Cal.4th 856, 922
(Clark).) "A court abuses its discretion when its ruling 'falls outside the
bounds of reason.' [Citation.]" (People v. Osband (1996) 13 Cal.4th 622,
666.) The exercise of a court's discretion will not be disturbed on appeal
unless it is shown that the trial court exercised its discretion "'in an
arbitrary, capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 11241125 (Rodrigues).)
Here, the trial court ruled the brothel testimony admissible, not
because it tended to show Pham had a propensity to commit sex crimes
(Evid. Code, § 1108), but because it was pertinent to two major issues in
the case: Pham's ability to speak and be understood in the English
language and his intent to seek sexual gratification (Evid. Code, § 1101,
subd. (b)).
As to the first issue, witnesses testified that Pham spoke with a
heavy accent. One of the defense contentions was that the prosecution
witnesses misunderstood what Pham said to them, suggesting that Belt
heard "brothel" when Pham said "hostel" and that the boy may have
mistook "bed" for "head." Since proof of the crimes charged depended on
the words spoken, and because the defense maintained that the
prosecution witnesses were mistaken as to what they heard Pham say, a
conversation that Pham had with Belt minutes before he spoke with the
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boys was relevant on the issue of the ability of Pham to speak English and
the ability of others to understand his speech.
The second reason for admitting this evidence was that it was
relevant to prove Pham's intent—that is, if, minutes before speaking to the
boys, he expressed interest in locating a brothel, a place where one pays
money for sex, such evidence tended to support the boy's testimony that
Pham asked him if he wanted to make money by giving him "head." From
this evidence, it was reasonably inferable that Pham wanted sex and was
willing to pay money for it. While Evidence Code section 1101 generally
renders inadmissible evidence of a person's character in the form of
specific instances of conduct, such prohibition does not apply when the
evidence is admitted to prove some fact such as motive or intent. Here,
the defense contended that Pham never asked for oral sex and therefore
either the boy fabricated the testimony that Pham asked for oral sex or
misunderstood his words when Pham merely inquired about a place to
stay overnight. The brothel remark constituted some evidence that Pham
had sex on his mind and was willing to pay for it minutes before he spoke
with the boys. One reasonable inference that could be drawn from this
evidence was that Pham wanted oral sex and was willing to pay for it,
regardless of whether it was with a female adult or with a boy under the
age of 18. The fact that paying for sex at a house of prostitution is not
identical to propositioning a boy about oral sex did not render the brothel
remark inadmissible under Evidence Code section 1101. "The least
degree of similarity (between the uncharged act and the charged offense)
is required in order to prove intent." (People v. Ewoldt (1994) 7 Cal.4th
380, 402 (Ewoldt).) The brothel remark tended to reveal Pham's state of
mind—that he desired sex and was willing to pay money for it. This
evidence was probative of Pham's motive and intent, and tended to
validate the boy's account of what Pham said to him and rebut the defense
argument that the boy misunderstood what Pham had said.
People v. Earle (2009) 172 Cal.App.4th 372 (Earle) does not
support Pham's assertion that the brothel testimony should have been
excluded. In Earle, the defendant was charged with indecent exposure
and sexual assault. The two crimes occurred months apart and involved
different victims. The trial court denied a motion to sever the charges for
trial. The Court of Appeal, in a two-to-one decision, reversed the assault
conviction, concluding the trial court abused its discretion in denying the
motion to sever because, absent expert testimony to the contrary, the
commission of the indecent exposure did not rationally support an
inference that the perpetrator had a propensity or predisposition to commit
rape. (Id. at p. 398.)
Unlike Earle, this case concerned the application of Evidence Code
sections 352 and 1101, not a motion to sever. Nor was the brothel
testimony offered to show a propensity to commit a crime. Also, the
brothel testimony contained two independent relevant bases for
admission: Pham's ability to speak and be understood in the English
language and his intent to seek sexual gratification. Earle is not in conflict
with the trial court's ruling in this case.
At oral argument, Pham cited Clark, supra, 52 Cal.4th 856 in
support of his contention that the brothel remark was not relevant. In
Clark, the defendant was charged with, inter alia, first degree murder
during an attempted rape. The trial court allowed, over defense objection,
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the defendant's wife to testify that she and the defendant last had sexual
relations two weeks before the murder. The high court agreed with the
defense that to infer from such evidence that the defendant was sexually
frustrated and thus motivated to rape was highly speculative and therefore
irrelevant; however, under the facts of the case, the error was harmless.
(Id. at p. 924.)
Clark's facts are distinguishable from our case. In the instant case,
the jury had to determine what Pham actually said to the boys and what
his intent was when he said it. The brothel conversation with Belt occurred
minutes before Pham's conversation with the boys. In both conversations,
Pham arguably expressed an interest in paying money for sex. Unlike the
highly speculative connection between the evidence Clark had not had
sex with his wife during the two weeks before the murder and his intent to
rape, here the connection between asking about a brothel and minutes
later propositioning a minor for sex was not so highly speculative as to
render it irrelevant. "The least degree of similarity (between the uncharged
act and the charged offense) is required in order to prove intent." (Ewoldt,
supra, 7 Cal.4th at p. 402.)
We find no abuse of discretion in admitting this evidence as against
the claims that it was not relevant or that it violated Evidence Code section
1101.
B. Evidence Code Section 352
Having determined that the brothel testimony was otherwise
relevant and admissible on two different grounds, we now turn to the
question of whether the trial court abused its discretion in overruling
Pham's Evidence Code section 352 objection to this evidence as unduly
prejudicial.
Evidence Code section 352 permits the trial court to exclude
evidence if its probative value is substantially outweighed by the
probability that its admission will create substantial danger of undue
prejudice. Undue prejudice means evidence that tends to evoke an
emotional bias against the defendant with very little effect on issues, not
evidence that is probative of a defendant's guilt. (People v. Tran (2011) 51
Cal.4th 1040, 1048 (Tran).) Again, we review the lower court's ruling under
the abuse of discretion standard of review. (People v. Pollock (2004) 32
Cal.4th 1153, 1171.)
Here, the subject testimony was probative on two separate
grounds: Pham's ability to communicate in English and his intent. So, the
probative value of this testimony was substantial. This evidence was not
prejudicial within the meaning of Evidence Code section 352 simply
because it was probative of Pham's guilt. (Tran, supra, 51 Cal.4th at p.
1048.) Whether this evidence was inherently prejudicial to the defense is
debatable since it tended to validate the defense position that Pham's
broken English caused others to misunderstand what he said. Even if
such evidence carried some prejudicial effect because it portrayed Pham
in a bad light (seeking prostitution), we cannot say as a matter of law that
it was unduly prejudicial or that it is probable the prejudice substantially
outweighed its probative value. The trial court did not act "'in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.'" (Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)
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We find no abuse of discretion.
People v. Kiet Pham, 2012 Cal. App. Unpub. LEXIS 1194 at 9-18.
However, the decision was not unanimous. Dissenting, one justice stated:
This case turns on a single word. Did Pham ask about comparable
lodgings, as the defense attorney suggested? ("Is there a hostel or a
YMCA here?") Or did he ask about polar opposites, as the firefighter
testified? ("Is there a brothel or a YMCA here?")
Testifying that he had no idea what a "brothel" or a "hostel" was,
the firefighter admittedly had absolutely no context to help him figure out
what Pham — indisputably a socially awkward immigrant with a very bad
accent — asked. Yet the court allowed him to testify Pham asked about a
brothel.
Evidence is prejudicial within the meaning of Evidence Code
section 352 if it uniquely tends to evoke an emotional bias against a party
as an individual or would cause the jury to prejudge a person on the basis
of extraneous factors. (People v. Cowan (2010) 50 Cal.4th 401, 475.)
Without the firefighter's testimony, nothing in the record showed, let alone
intimated, a nexus between an adult male's propensity to commit a sex act
with a consenting adult female prostitute and an adult male's propensity to
commit a sex act with a juvenile male legally incapable of consenting. The
testimony of the firefighter, a first responder with credibility as a witness
and respect in the community, branded Pham as a sexual predator on the
prowl.
Finding the firefighter's testimony admissible under Evidence Code
section 1101, subdivision (b), the majority fails to appreciate the grave
prejudice of his testimony under Evidence Code section 352. I am left to
surmise that reasonable minds may differ on whether reasonable minds
can differ. I would reverse the judgment.
Pham, 2012 Cal. App. Unpub. LEXIS 1194 at 19-21.
2.
Analysis
20
As Respondent correctly argues, the United States Supreme Court has expressly
21
left open the question of whether the admission of propensity evidence violates due
22
process. See Estelle v. McGuire, 502 U.S. at 75, n.5; Garceau v. Woodford, 275 F.3d
23
769, 774 (9th Cir. 2001). In Estelle, the Supreme Court expressly refused to determine
24
whether the introduction of prior crimes evidence to show propensity to commit a crime
25
would violate the Due Process Clause. Id. ("Because we need not reach the issue, we
26
express no opinion on whether a state law would violate the Due Process Clause if it
27
permitted the use of 'prior crimes' evidence to show propensity to commit a charged
28
crime."); see also Alberni v. McDaniel, 458 F.3d 860, 866 (9th Cir. 2006) ("Estelle
13
1
expressly left this issue an 'open question'"). Because the Supreme Court has
2
specifically declined to address whether the introduction of propensity evidence violates
3
due process, Petitioner lacks the clearly established federal law necessary to support his
4
claims. Id.; see also Mejia v. Garcia, 534 F.3d 1036, 1046-47 (9th Cir. 2008) (relying on
5
Estelle and Alberni and concluding that the introduction of propensity evidence under
6
California Evidence Code § 1108 does not provide a basis for federal habeas relief, even
7
where the propensity evidence relates to an uncharged crime); Holley v. Yarborough,
8
568 F.3d 1091, 1101 (9th Cir. 2009) (The Supreme Court "has not yet made a clear
9
ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due
10
process violation sufficient to warrant issuance of the writ.").
11
Accordingly, the state courts' rejection of Petitioner's claim could not have been
12
"contrary to, or an unreasonable application of, clearly established" United States
13
Supreme Court authority, since no such "clearly established" Supreme Court authority
14
exists. 28 U.S.C. § 2254(d)(1).
15
Nevertheless, there can be habeas relief for the admission of prejudicial evidence
16
if the admission was fundamentally unfair and resulted in a denial of due process.
17
Estelle, 502 U.S. at 72; Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Jeffries v.
18
Blodgett, 5 F.3d 1180, 1192 (9th Cir. 1993); Gordon v. Duran, 895 F.2d 610, 613 (9th
19
Cir.1990). Constitutional due process is violated if there are no permissible inferences
20
that may be drawn from the challenged evidence. Jammal v. Van de Kamp, 926 F.2d
21
918, 919-20 (9th Cir. 1991). "Evidence introduced by the prosecution will often raise
22
more than one inference, some permissible, some not." Id. at 920. "A habeas petitioner
23
bears a heavy burden in showing a due process violation based on an evidentiary
24
decision." Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005).
25
Here, the California Court of Appeal appropriately found that the evidence was
26
properly admitted to show that despite Petitioner's accent, others could understand what
27
he was saying, and also to show intent with regard for his desire for potential sexual
28
gratification. The Court of Appeal sufficiently protected Petitioner's due process rights by
14
1
finding that the Superior Court had not abused its discretion in applying Rule 352 to
2
admit the statements Petitioner made to firefighter Belt. The Court of Appeal found the
3
probative value of the evidence outweighed the danger of prejudice. Pham, 2012 Cal.
4
App. Unpub. LEXIS 1194 at 9-18 (applying Cal. Evid. Code § 352). The Court of Appeal
5
found the testimony probative based on Petitioner's ability to communicate in English
6
and his intent. Id. The Court of Appeal then balanced this probative value against the
7
prejudicial nature of the evidence and found that it was debatable whether the evidence
8
was prejudicial, as it may have shown only that Petitioner' English was hard to
9
understand. Accordingly, the Court of Appeals concluded that they "cannot say as a
10
matter of law that it was unduly prejudicial or that it is probable the prejudice
11
substantially outweighed its probative value" and that the trial court did not act "in an
12
arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of
13
justice." Id. at 18.
14
This Court must defer to the Court of Appeal's conclusions with regard to
15
California Law, Bains v. Cambra, 204 F.3d 964, 972 (9th Cir. 2000) (citing Wainwright v.
16
Goode, 464 U.S. 78, 84, 104 S. Ct. 378, 78 L. Ed. 2d 187 (1983)). The Court finds that
17
this analysis adequately addressed the permissible inferences of Petitioner's statements
18
to firefighter Belt, and the fundamental fairness of its introduction. The California Court of
19
Appeal decision denying this claim was not contrary to clearly established Supreme
20
Court precedent. Accordingly, Petitioner is not entitled to habeas relief.
21
B.
22
Claims Two and Three – Equal Protection Violation From Placement on Sex
Offender Registry
Petitioner, in his second and third claims, contends that the state court's order
23
requiring him to register as a sex offender violated his constitutional rights to equal
24
protection. (2nd Am. Pet. at 23.)
25
1.
State Court Decision
26
In the last reasoned decision denying Petitioner's claim, the appellate court
27
concluded:
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Pham was convicted of both communicating with a minor with the
intent to commit oral copulation (§§ 288.3, subd. (a), 288a) and annoying
or molesting a minor (§ 647.6, subd. (a)). He was ordered to register as a
sex offender pursuant to section 290. He contends that this order denies
him equal protection of the law, citing People v. Hofsheier (2006) 37
Cal.4th 1185 (Hofsheier). Hofsheier held that persons convicted of oral
copulation with a 16 year old (§ 288, subd. (b)(1)) are similarly situated
with persons convicted of unlawful sexual intercourse with a 16 year old (§
261.5, statutory rape), and therefore requiring the former but not the latter
group to register is an unconstitutional deprivation of equal protection of
the law. (Hofsheier, supra, at pp. 1207-1208.)
Assuming, without deciding, that requiring registration for a
conviction of communicating with a minor with the intent to commit oral
copulation violates equal protection, the same cannot be said for requiring
registration for a conviction of annoying or molesting a minor. A person
convicted of annoying or molesting a minor is not similarly situated with
one convicted of statutory rape or communicating with a minor with the
intent to commit oral copulation. Section 647.6, subdivision (a) targets
conduct that is objectively disturbing and motivated by an abnormal sexual
interest in the minor. (People v. Lopez (1998) 19 Cal.4th 282, 290.) The
registration requirement in this case was valid based on the section 647.6,
subdivision (a) conviction alone.
Pham, 2012 Cal. App. Unpub. LEXIS 1194 at 18-19.
2.
Applicable Legal Authority and Analysis
14
The Equal Protection Clause of the Fourteenth Amendment "is essentially a
15
direction that all persons similarly situated should be treated alike." See City of Cleburne,
16
Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313
17
(1985); see also Fraley v. Bureau of Prisons, 1 F.3d 924, 926 (9th Cir. 1993) (per
18
curiam). Where a statute is challenged on equal protection grounds, "[t]he general rule is
19
that legislation is presumed to be valid and will be sustained if the classification drawn by
20
the statute is rationally related to a legitimate state interest." See City of Cleburne, 473
21
U.S. at 440. A statutory sentencing scheme that does not disadvantage a suspect class
22
or infringe upon the exercise of a fundamental right, as is the case here, is subject only
23
to rational basis scrutiny. See Von Robinson v. Marshall, 66 F.3d 249, 250-51 (9th Cir.
24
1995) (per curiam); United States v. Harding, 971 F.2d 410, 412 (9th Cir. 1992). To
25
prevail on his equal protection challenge, petitioner "must prove that there exist no
26
legitimate grounds to support the classification." See Harding, 971 F.2d at 413.
27
The Court concurs with the finding of the California Court of Appeal that persons
28
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convicted of annoying or molesting a minor are not similarly situated with one convicted
2
of statutory rape or communicating with a minor with the intent to commit oral copulation
3
since the elements of the two crimes are different. The California Supreme Court has
4
found that there was a violation of Equal Protection for requiring sex offender registration
5
for the crime of voluntary oral copulation with a minor, when registration was not required
6
for the crime of voluntary sexual intercourse with a minor. See People v. Hofsheier, 37
7
Cal.4th 1185 (2006). However, at least one California Court of Appeal has denied Equal
8
Protection challenges to the crime in question here, annoying or harassing a minor,
9
because the perpetrators of the two crimes are not similarly situated. The court
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27
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explained:
It is true that a violation of section 647.6, subdivision (a), can
potentially involve conduct that is much less overtly sexual than the felony
sex offenses found subject to discretionary registration pursuant to
Hofsheier. In fact, as appellant notes, it can be violated by mere words, as
occurred here. Whatever the nature of the conduct, however, to be
convicted under section 647.6, subdivision (a), a defendant's objective
conduct would need to have ―‗unhesitatingly irritated or disturbed a
reasonable person had it been directed at that person regardless of the
defendant's intent.‘‖ (People v. Lopez, supra, 19 Cal.4th at p. 291.) Hence,
section 647.6 is distinguishable from Hofsheier-type offenses, which do
not include this requirement and which all involve voluntary conduct
between two willing parties.
Moreover, appellant's focus on conduct alone ignores another key
difference between the voluntary sex offenses examined in Hofsheier-type
cases and section 647.6, subdivision (a), in that the latter statute is limited
to a ―comparatively narrow province,‖ i.e., to offenders whose conduct, in
addition to being objectively irritating and disturbing, is motivated by an
unnatural or abnormal sexual interest in children. (Gladys R., supra, 1
Cal.3d at pp. 867–868.) Thus, while section 647.6 does not have a
specific intent requirement, the requirement that the conduct be motivated
by an unnatural or abnormal sexual interest in children further
differentiates it from Hofsheier and other cases involving voluntary sexual
offenses.
Finally, while older minors may be victims under section 647.6, and
while the perpetrator need not be more than 10 years older than the
victim, the statute also encompasses the youngest of minors as well as
perpetrators who are much older than their victims. Indeed, the statute's
use of an objective standard to determine whether a ―normal person,
without hesitation, would have been disturbed, irritated, offended, or
injured by the defendant's conduct‖ (CALCRIM No. 1122; see People v.
Lopez, supra, 19 Cal.4th at p. 290) may well stem, at least in part, from
the fact that the statute's scope includes very young children who might
not be subjectively irritated by the conduct, as well as from the
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2
3
4
5
Legislature's objective ―that childish and wholly unreasonable subjective
annoyance [not be] covered‖ (People v. Lopez, supra, 19 Cal.4th at p.
290).
Thus, for all of these reasons, section 647.6, subdivision (a), simply
is not comparable to the voluntary sex offenses at issue in Hofsheier-type
cases, in which the only difference between the crimes was the nature of
the sexual act and, in some cases, the ages of the defendant and the
victim.
People v. Brandao, 203 Cal. App. 4th 436, 445-446 (Cal. App. 1st Dist. 2012).
6
The Court agrees with the reasoning of the Brandao decision. Regardless,
7
Petitioner has pointed to no federal authority, let alone any Supreme Court authority,
8
which stands for the proposition that equal protection is violated by requiring a defendant
9
to register as a sex offender if he is convicted of annoying or molesting a minor. Reliance
10
on Supreme Court authority broadly discussing the Equal Protection Clause does not
11
advance his argument. See Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) ("[W]hen
12
a Supreme Court decision does not 'squarely address[] the issue in th[e] case' or
13
establish a legal principle that 'clearly extend[s]' to a new context to the extent required
14
by the Supreme Court . . . it cannot be said, under [the] AEDPA, there is 'clearly
15
established' Supreme Court precedent addressing the issue before us, and so we must
16
defer to the state court's decision.") (citation omitted). It therefore follows that the Court
17
has no basis for finding or concluding that the California courts' rejection of Petitioner's
18
equal protection claim either was contrary to or involved an unreasonable application of
19
clearly established Supreme Court law.
20
Finally, to the extent petitioner is contending that the registration requirement
21
violates state law, this claim is not cognizable on federal habeas review. Habeas relief is
22
not available for claims of an alleged error in the interpretation or the application of state
23
law. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475,
24
116 L. Ed. 2d 385 (1991); Pulley v. Harris, 465 U.S. 37, 41, 104 S. Ct. 871, 79 L. Ed. 2d
25
29 (1984); see also Sturm v. Cal. Adult Auth., 395 F.2d 446, 448 (9th Cir. 1967) (per
26
curiam) (observing that "a state court's interpretation of its statute does not raise a
27
federal question"). Moreover, this Court may not revisit the State courts' interpretation of
28
18
1
its own laws. See Bradshaw v. Richey, 546 U.S. 74, 76, 126 S. Ct. 602, 163 L. Ed. 2d
2
407 (2005) (per curiam).
3
Accordingly, the state court adjudication of the claim did not result in a decision
4
that was contrary to, or involved an unreasonable application of, clearly established
5
Federal law, or result in a decision that was based on an unreasonable determination of
6
the facts in light of the evidence. 28 U.S.C. § 2254(d). Petitioner is not entitled to relief.
7
V.
8
9
10
CONCLUSION
Petitioner is not entitled to relief with regard to the claims presented in the instant
petition. The Court therefore orders that the petition be DENIED.
VI.
CERTIFICATE OF APPEALABILITY
11
A state prisoner seeking a writ of habeas corpus has no absolute entitlement to
12
appeal a district court‘s denial of his petition, and an appeal is only allowed in certain
13
circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute
14
in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which
15
provides as follows:
16
17
18
19
20
21
22
23
24
25
26
27
28
(a) In a habeas corpus proceeding or a proceeding under section 2255
before a district judge, the final order shall be subject to review, on appeal,
by the court of appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to
test the validity of a warrant to remove to another district or place for
commitment or trial a person charged with a criminal offense against the
United States, or to test the validity of such person‘s detention pending
removal proceedings.
(c)
(1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals from–
(A) the final order in a habeas corpus
proceeding in which the detention complained
of arises out of process issued by a State
court; or
(B) the final order in a proceeding under
section 2255.
(2) A certificate of appealability may issue under paragraph
(1) only if the applicant has made a substantial showing of
the denial of a constitutional right.
19
(3) The certificate of appealability under paragraph (1) shall
indicate which specific issue or issues satisfy the showing
required by paragraph (2).
1
2
3
If a court denies a petitioner‘s petition, the court may only issue a certificate of
appealability ―if jurists of reason could disagree with the district court‘s resolution of his
4
constitutional claims or that jurists could conclude the issues presented are adequate to
5
deserve encouragement to proceed further.‖ Miller-El, 537 U.S. at 327; Slack v.
6
McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the
7
8
merits of his case, he must demonstrate ―something more than the absence of frivolity or
the existence of mere good faith on his . . . part.‖ Miller-El, 537 U.S. at 338.
9
In the present case, the Court finds that no reasonable jurist would find the
10
Court‘s determination that Petitioner is not entitled to federal habeas corpus relief wrong
11
or debatable, nor would a reasonable jurist find Petitioner deserving of encouragement
12
to proceed further. Petitioner has not made the required substantial showing of the
13
denial of a constitutional right. Accordingly, the Court hereby DECLINES to issue a
14
certificate of appealability.
15
VII.
ORDER
16
Accordingly, IT IS HEREBY ORDERED:
17
1) The petition for writ of habeas corpus is DENIED;
18
2) The Clerk of Court is DIRECTED to enter judgment and close the case; and
19
3) The Court DECLINES to issue a certificate of appealability.
20
21
IT IS SO ORDERED.
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Dated:
December 8, 2014
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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