Udall v. The People
Filing
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ORDER DISMISSING CASE ; Petition for Writ of Habeas Corpus is DENIED; ORDERED to enter Judgment and Close the Case; ORDERED to DECLINE to ISSUE a CERTIFICATE of APPEALABILITY,signed by Magistrate Judge Michael J. Seng on 12/20/2016. CLOSED CASE (Martin-Gill, S)
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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. 1:14-cv-00474 MJS (HC)
TODD DOUGLAS UDALL,
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ORDER REGARDING PETITION FOR WRIT
Petitioner, OF HABEAS CORPUS
v.
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KAMALA HARRIS,
Respondent.
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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Respondent, California Attorney General Kamala
Harris, is hereby substituted as the proper named respondent pursuant to Rule 25(d) of
the Federal Rules of Civil Procedure.1 Respondent is represented by John A. Bachman
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The rules governing relief under 28 U.S.C. § 2254 require a person in custody pursuant to the
judgment of a state court to name the "state officer having custody" of him as the respondent. OrtizSandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (quoting Rule 2(a) of the Rules Governing Habeas
Corpus Cases Under Section § 2254). This person typically is the warden of the facility in which the
petitioner is incarcerated. Stanley v. Cal. Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Here,
Petitioner is no longer incarcerated. That he is not incarcerated does not moot the petition, see Spencer v.
Kemna, 523 U.S. 1, 8-12, 118 S. Ct. 978, 140 L. Ed. 2d 43 (1998) (courts may presume that a criminal
conviction has continuing collateral consequences sufficient to avoid mootness), but it does mean that
there is no warden, jailer, or probation officer who would be a proper respondent. Kamala Harris, the
(continued…)
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of the office of the Attorney General. Both parties have consented to Magistrate Judge
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jurisdiction under 28 U.S.C. § 636(c). (ECF Nos. 8-9.)
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I.
Procedural Background
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Petitioner was placed in custody of the California Department of Corrections
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pursuant to a judgment of the Superior Court of California, County of Fresno, following
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his conviction by jury trial on May 19, 2011, of two counts of contacting or attempting to
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contact a minor with intent to commit a lewd act, one count of providing harmful matter to
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a minor for sexual purposes, and two counts of attempting to provide harmful matter to a
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minor for sexual purposes. (Clerk's Tr. at 666-67.) On July 26, 2011, Petitioner was
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sentenced to a determinate term of three years and eight months in state prison. (Id.)
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While not reflected in the record, it appears that Petitioner has since been released from
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confinement.
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Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate
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District. The Court ordered the abstract of judgment to be modified to accurately reflect
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the proper crimes for which Petitioner was convicted, but otherwise affirmed the
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judgment on October 11, 2013. (Lodged Docs. 1-4.) Petitioner sought review from the
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California Supreme Court. (Lodged Docs. 5-6.) The California Supreme Court denied
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review on January 15, 2014. (Id.)
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Petitioner did not attempt to file collateral challenges to his conviction in state
court in the form of petitions for writ of habeas corpus.
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On April 3, 2014 Petitioner filed the instant federal habeas petition. (Pet., ECF No.
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1.) Petitioner presented three claims for relief in the petition: (1) that the trial court
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violated his due process rights by not providing instructions on lesser included offenses;
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(2) that Petitioner’s equal protection rights were violated by denying him half-time
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custody credits in prison; and (3) that the crimes of conviction violated his First
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(…continued)
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Attorney General of California, is hereby substituted as the properly named respondent. See Rule 2(b),
Rules Governing Habeas Corpus Cases Under Section § 2254, 1975 advisory committee's note (when
petitioner is not incarcerated or on probation or parole, proper respondent is the Attorney General).
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Amendment rights to free speech. (Id.)
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Respondent filed an answer to the petition on August 21, 2014. (ECF No. 17.)
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Petitioner filed a reply on September 8, 2014. (ECF No. 18.) The matter stands ready for
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adjudication.
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II.
Statement of the Facts2
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FACTUAL AND PROCEDURAL HISTORIES
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During the relevant time period in 2009, Julia W. was 13 years old
and living in Fresno County with her grandfather. She met the Udall
family—defendant, his wife (Wife), and their 11-year-old daughter
(Daughter)—through church. Daughter and Julia were friends, and Julia
was "friends" on Facebook with Daughter, Wife, and Udall.
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In September 2009, Julia's grandfather reported to the police that
Julia had received inappropriate messages from Udall. Julia told a police
officer that she had conversations with Udall through Facebook that made
her extremely uncomfortable. The police later logged into Julia's Facebook
account and engaged in Internet communications with Udall while
pretending to be Julia.
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As a result of the police investigation, Udall was charged with six
counts: (1) contacting or attempting to contact a minor with intent to
commit a lewd act upon the child in violation of section 288.3, subdivision
(a), on September 18, 2009; (2) violation of section 288.3, subdivision (a),
on September 19, 2009; (3) arranging a meeting with a minor for the
purpose of engaging in lewd or lascivious behavior in violation of section
288.4, subdivision (a)(1), on September 18, 2009; (4) providing harmful
matter to a minor for sexual purposes in violation of section 288.2,
subdivision (a), on September 17, 2009; (5) attempting a violation of
section 288.2 on September 18, 2009; and (6) attempting a violation of
section 288.2 on September 19, 2009.[fn2]
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FN2: The first amended complaint incorrectly describes
counts 1 and 2 as "arranging meeting with minor for lewd or
lascivious behavior." These factual allegations describe a
violation of section 288.4, not section 288.3. The prosecutor,
however, clarified that counts 1 and 2 allege violations of
section 288.3—contacting or attempting to contact a minor
with intent to commit a lewd act—and the jury was correctly
instructed on the elements of section 288.3 for those counts.
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A jury trial began on May 10, 2011. Julia testified that Daughter was
her good friend and she had spent a lot of time with both Daughter and
Wife, visiting their house twice and spending the night on one occasion.
Julia also joined Daughter's family, including Udall, on a trip to Shaver
Lake on September 7, 2009.
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The Fifth District Court of Appeal’s summary of the facts in its October 11, 2013 opinion is presumed
correct. 28 U.S.C. § 2254(e)(1).
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Julia first communicated with Udall by instant chat to ask about the
Shaver Lake trip. Julia explained that instant chat on Facebook is a private
communication that is not posted on one's Facebook page. She began
having instant chats with Udall almost every night. At first there was
nothing unusual about her Internet conversations with Udall, but at some
point, they became inappropriate and sexual. Julia recalled telling Udall
that she was going to a school dance and he said he used to get kicked
out of dances for touching girls and he would like to dance with her. Udall
told her if she had a boyfriend, he would make her break up with him. Julia
reminded Udall that he was married, and he responded that it did not
matter and he had cheated before. Udall told Julia she looked like she was
16 years old in her pictures. He talked about them going on a date when
Wife would be at a women's retreat organized by their church. He said
they could have sex at his house and he would lick her wherever she
wanted. He asked if Julia had had sex before. She said no, and Udall
responded, "Good. That is the way I like them." He told her he could make
it not hurt. Udall also said that he could meet Julia before he picked up his
kids. He said they could meet "in a few days." He talked about meeting
Julia after his son's soccer games and discussed having sex in his house.
Julia deleted her instant chats with Udall because he told her it would be
better as "neither of us would get in trouble."
Julia told her grandfather about her Facebook conversations with
Udall, and he contacted the police. Udall also asked Julia for her cell
phone number and began sending her text messages; on September 18,
2009, he sent her more than 50 messages. Julia told her grandfather
about the text messages, and he again notified the police.
Police Officer Abby Padgett testified that she was dispatched to
Julia's grandfather's house on Thursday, September 17, 2009, to
investigate the grandfather's initial report. Padgett spoke with both Julia
and her grandfather. Julia told Padgett that she had been having instant
chat conversations with Udall for the previous couple months; initially, they
talked about school and normal activities. Then, about two weeks earlier,
Udall told Julia he loved her. The day before Padgett interviewed her, Julia
had an Internet conversation with Udall that lasted two to three hours and
they had another long conversation on September 17 as well. Julia told
Padgett that Udall said he wished he was 14 again so he could dance with
her. At some point in the conversation, Julia became extremely
uncomfortable and started responding with "oh" and "okay." Udall told her
he wanted her really bad and they should see each other alone. He
mentioned the possibility that they could go to the movies on Saturday. He
said he could probably get his kids out of the house and they would be
able to meet. Udall asked Julia if she was alone in her room while they
were chatting; he said they could get in trouble if anyone found out about
their conversations and he could lose her.
Padgett also described many of Udall's statements that Julia
testified about. For example, Padgett testified that Julia told her Udall said
he had been kicked out of a school dance for touching girls and he would
make her break up with her boyfriend. He said he had cheated before. He
told Julia they could have sex at his house and he would lick her wherever
she wanted and do whatever she wanted. Udall asked her if she had had
sex before, and when she said no, he said, "Good. That's the way I like
them." Padgett did not see any of the Facebook conversations that Julia
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described as Julia told her she had deleted them.
Police Officer Kory Westbury testified that he continued the
investigation, visiting Julia's grandfather's house the next day. Julia told
Westbury that Udall had sent her text messages on her cell phone while
she was at school that day. There had been so many messages that she
had been sent to speak with a counselor about using her cell phone in
school. In these text messages, Udall discussed being alone with Julia
and doing whatever she wanted.
Photographs of Julia's cell phone text messages were admitted into
evidence. Julia's text messages to Udall were not available, however,
because she deleted her own outgoing text messages. Udall texted, "I do
not know yet, but I hope soon," "[f]igure a time and place to be together,"
"find a time and place to be alone," "[j]ust be with you and make you
happy," and "a full day or more together." Julia sent a text asking Udall
what they would do, and he texted back, "Anything you ask." He wrote, "I
love your smile. I could look at it all day long. You make me laugh and that
makes me happy." He wrote, "This is my first time to want to do this,"
"want to be with you," and "[b]ut I want to so badly." Udall texted that he
wanted to do whatever Julia wanted, he wanted to know what would make
her happy, and he wanted "to be with [her] a lot." He texted, "I love talking
with you. I also want to do the stuff we talked about last night." Julia and
Udall exchanged texts discussing what they would do together. Julia
asked what Udall liked, and he responded, "Wow. I love it all so much oral
and everything."
The police decided to log into Julia's Facebook account and
conduct an instant chat with Udall using her grandfather's computer. At
9:15 p.m. on September 18, 2009, Udall attempted to instant chat with
Julia, and Westbury responded, pretending to be Julia. Westbury saved a
copy of the chat session, and a transcript of the conversation was
admitted into evidence.
During the Internet conversation, Udall wrote, "I was just thinking I
wish my family would go out of town for a weekend." Westbury (as Julia)
asked why, and Udall responded, "so it would be easier for us to hook up."
Udall said that Julia could come over and "we could have fun," "maybe
swim at night." Westbury wrote it would be cold, and Udall responded,
"there are ways to stay warm" and "share body heat." Westbury suggested
they could watch movies. Udall said, "we can get anything you want from
on line." Westbury asked what Udall thought, and he responded,
"something with sex in it."
Later in the conversation, Westbury asked, "What would you do if
you saw me right now?"[fn3] Udall responded, "Kiss you and hug you."
Westbury asked Udall what he would want to do. Udall wrote that he
wanted to get in bed with Julia, remove her clothes, and "rub my hand all
over your body kiss you everywhere." He said he would kiss "breast
tummy a little lower," "between your legs," and "your pussy." Westbury
asked, "And then do what?" Udall wrote, "If you want, climb on top of you,"
and "maybe put it inside you." Udall continued, "I want to so badly" and "I
am so crazy for you." He wrote, "I will go very slow[.] I don't want to hurt
you at all." He also asked, "where do you want me to cum" and said, "if
you want to take chances in you [otherwise] pull out." Udall said he was "a
little worked up" and his "you know is hard."
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FN3: The transcript of the chat session shows Westbury typed, "wht wld u
do if u saw me rt now." Westbury explained that he wanted to make sure
he responded the same way Julia communicated online. Julia testified that
she told the police how she typed in a shorthand manner, shortening
some words and, for example, typing "OIC" for the phrase, "oh, I see."
Westbury told Udall, "My grandpa is leaving tomorrow. We can
meet at the park, if you want to." Udall responded, "that would be kool I
will text you when I can get away," "maybe around 4ish." Westbury asked
what Udall wanted to do. He responded, "kiss you if we are alone."
Westbury asked where they could go, and Udall wrote, "hmmm we will see
maybe for a ride." Westbury asked what Udall wanted to do, and Udall
responded, "everything." Udall continued, "I like you so much I do not want
this to be just about sex and I am new to doing this," "I looked at your pics
100 times today," and "I think I love you." He wrote that he had a great
feeling in him and felt "warm not hot I feel great almost like I am floating."
Westbury asked, "Like the dance when you were 14?" and Udall
responded, "yea but way better."
Westbury asked how Udall was going to get away the next day.
Udall wrote, "I will have to try to work on that," "I will try I promise I will try,"
and "I do not want to make a promise and something go wrong and have
to break it." He wrote, "it hurts that I just cant run off to see you." Udall
said he would work on a way to get away from everyone to meet Julia at
the park. He explained that he was a coach and he would know whether
he could get away and meet Julia after the second game and he would
text her. Udall wrote that he would think about Julia just like last night. He
said he dreamed about her—"I remember you and I were together and
everyone thought it was a good thing." He said it was a good thing "as
long as we do not get caught." The instant chat session ended at 11:02
p.m.
The next day, police set up a surveillance team to observe Udall
and the park where he discussed meeting with Julia, but Udall did not go
to the park. Westbury testified that Udall drove by the park. That evening,
September 19, 2009, Westbury logged into Julia's Facebook account and
engaged in another instant chat session with Udall while posing as Julia.
Westbury copied the conversation and a transcript was admitted into
evidence.
Udall wrote that he had been called in for work that day because a
drunk driver hit a power pole. He worked for PG&E. He said he hoped
Wife would go to the women's retreat so Julia and he could see each
other. He wrote, "this will be my first time cheating." Westbury asked if
Udall still wanted to see Julia. Udall responded, yes, but he was scared
that he would want more than he could have; he said, "what if I want to be
with you more than my family its not like I can leave them and marry you."
He asked if he should wear protection. Westbury responded that it was up
to him. Udall wrote that he wanted to wrap his arms around Julia and hold
her tight and he would take his time and go slow. He said she would learn
what she liked, such as "kissing your body in def places," "neck breast
back tummy legs and any other spot you maybe curious about." He
mentioned "kissing/licking" "breast pussy butt." He suggested that Julia
spend a night with Daughter and then she could sneak out of her room
and into his bed.
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Udall asked whether he needed to buy protection. He said he would
only want Julia to get pregnant "if I thought there was a way for us to be
married." Later, Westbury wrote that he (as Julia) was scared, and Udall
wrote, "ok if you want to back out its ok, we are friends and I will not ever
get mad." He wrote, "lets try for womens retreat." Udall said that, the day
they went to the lake, he had been scared to look at her because he was
scared everyone could see what he was thinking—that she was sexy and
he wanted to kiss her. Again, Udall asked whether Julia wanted him to use
protection and whether she wanted him to "sho[o]t it in you." This
Facebook chat session began at 8:48 p.m. and ended at 11:06 p.m.
On September 23, 2009, Westbury arrested Udall. He examined
Udall's cell phone and confirmed that he had been texting Julia. Westbury
interviewed Udall in the police department's investigation room. The
interview was videotaped, and a DVD of the interview was played for the
jury.
In the interview, Westbury explained there had been a report of
inappropriate conversations over the Internet. Initially, Udall said that Julia
started the inappropriate conversations with him on Facebook and he was
only trying to scare her. He said, "I should [have] gone to her grandfather
instead of trying to scare the tar out of her." He described Julia as "kind of
the, I, you know gets in trouble a lot type kid." Udall said Julia did not live
with parents and he had heard her father was in prison. He told Westbury
that she asked specific questions about sex and "I said no you don't want
to do this it hurts." One day Julia told him she loved him and then she
started to talk about meeting him. She wanted to meet Udall at the park
but he did not go. He said they had exchanged text messages, "it went
back and forth ten times each."
Later in the interview, Udall admitted that he told Julia he wanted to
do things sexually with her. Westbury asked why he would do that if his
purpose was to scare her, and Udall responded, "Things got twisted
around." He said he "blew it" and admitted he had sexual conversations
with Julia on Facebook on the nights of September 18 and 19, 2009, but
before that, their conversations were not inappropriate. He told Westbury,
"I got roped in," "[b]ut I, I quickly got out." Westbury asked whether, during
his conversations with Julia, Udall thought this could be a possibility. Udall
responded that he "[g]ot into dreamland about it but reality is I knew I
could never, would never." "I mean in my own mind but not communicated
it you know but then you stop and say [wait] a minute here we're talking a
thirteen year old girl no."
Udall said he and Julia talked about going to Magic Mountain or
Disneyland, and he mentioned that Wife goes to a women's retreat and
leaves him with the kids, but he made no set dates. He reiterated that he
did not meet Julia at the park, stating, "I was at my office and there was no
way I [was] going to the park." He explained that he planned to work that
day and "that was kind of a reinforcement to make sure ...." Westbury
asked, "Were, were you tempted to meet her?" Udall responded, "To be
honest with you yeah ... [¶] ... [¶] I was but ... [¶] ... [¶] I would not that's
over an internet not seeing the person .... [¶] ... [¶] I know I would not
cross that line." He continued, "Sitting on the internet on the couch middle
of dark you know middle of the night not looking at a picture of the person
not seeing the person is like a dreamland type thing[,] but to do it[,] no
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way."
Westbury asked if Udall had had a similar "situation" on the Internet
with anyone else. Udall responded he had some cybersex-type
conversations on Yahoo Messenger and "that's been my vice I've been
trying to break." He said he had "done this stuff before" but he "never ever
met anybody never will meet anybody." Among other Internet contacts,
Udall said he had sexually related chats with a 14-year-old girl during the
summer. He said he had stopped, but "then [Julia] popped up and I made
a mistake." Westbury eventually told Udall that he had been chatting with
him, not Julia, the previous Friday and Saturday nights. Later in the
interview, Udall said, "I admit I was very dumb you know I let this get out
of control and I should have not done it .... I'm guilty of letting it get out of
control .... I'm glad nothing physically happened.... And nothing would
have and I won't."
At the end of the interview, Westbury gave Udall an opportunity to
write an apology letter. Udall wrote an apology letter to Julia's grandfather,
which was admitted into evidence. Udall wrote, in part: "Your
granddaughter and I started off chatting. It was just normal stuff, and then
went out of control. I made a mistake, and did not stop it. I allowed it, and
then encouraged it. I am so ashamed right now. At that point in my mind I
was talking to a fantasy computer, not a person." He wrote that he would
pray to God that this will never happen again.
Dustin Dodd, a police officer and computer forensic analyst,
testified that he executed a search warrant of Udall's home and seized two
computers and an external hard drive. On Udall's laptop computer, Dodd
found a Yahoo Messenger profile and "images depicting sexual
exploitation of children" in a folder associated with that profile. There was
data showing that the Yahoo Messenger profile visited various chat
groups and engaged in chats with other users whose profiles "were all
names of people who purported to be younger minors." Dodd explained
that profile names may include a year of birth. For example, a user profile
name of "BRIW1996" would imply the user was around 13 years old in
2009.
Dodd recovered "hundreds and hundreds" of chat logs from before
June 2009 to August 11, 2009. In the chat sessions, the Yahoo
Messenger profile associated with Udall's computers would tell others his
age, sex, location, and sometimes would say he worked for PG&E.
Typically, within four or five messages, the conversations would become
sexually explicit. Dodd testified that Udall "would talk about things that he
would want them to do if they had met up or things he would want to do to
them; how experienced they were sexually, and things like that." For
example, Udall engaged in a chat with "Simba," who said he was 13 years
old and from Georgia. Udall asked Simba, "What do you like to do with a
guy?" and Simba responded "Be the girl ...." Udall wrote to Simba, "Would
I get to lick you?" and "I want to suck you and FUCK you." Dodd testified
there were several hundred chat logs "that were just like this." In one chat
log, Udall chatted with a person who identified herself as a 14-year-old
girl. Udall wrote, "I really get turned on by girls your age."
There were also logs showing Udall requesting, offering,
distributing, and looking at sexual images of minors. Dodd found many
pornographic images involving children on Udall's computers. These
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included "a black-and-white photo of roughly an eight-to ten-year-old
female completely nude with an adult male inserting his penis into her
vagina," a "color image of a young female, approximately eight to ten
years old, wearing panties, lifting up her top and pinching her nipples for
the camera," and an image of a girl approximately 10 to 12 years old with
semen on her face. On cross-examination, Dodd testified that he found
more pornographic images of adults than of children on Udall's computers.
Udall's former supervisor, Daughter, and Udall himself testified for
the defense. James Redman, Udall's former supervisor at PG&E, testified
that Udall worked four hours of scheduled overtime on Saturday,
September 19, 2009, from 4:00 p.m. to 8:00 p.m. The work did not involve
an emergency such as a drunk driver running into a power pole. Redman
described Udall as "[a] very honorable employee, very conscientious" and
"truthful and honest."
Daughter testified that she met Julia at church; Julia's grandfather
was a pastor at the church. She never saw her father look at Julia or any
of her friends in a weird or inappropriate way. She thinks her father is very
truthful and "teaches [her] right from wrong ...." Daughter spent about 60
days or more in the hospital in 2007, and her father would spend the night
at the hospital with her. She said he was like her best friend.
Udall testified that he began visiting chat rooms in September 2007
when Daughter, who had first been diagnosed with leukemia in 2005,
relapsed. At that time, he "really got mad at God." He was told that the
treatment for Daughter was not working and they had the choice of
making her comfortable and letting her die or trying radical treatments. A
nurse at the hospital suggested online chat rooms as a way of dealing with
Daughter's illness. He explained: "I went to the chat rooms, because I
wanted [to] escape my reality. When I was in them, I wasn't Todd Udall,
married, two kids. I was Todd Udall single, no children. I lived in Santa
Cruz, California.... I was in my 30s; looking for a different life and—
escaping my reality."
Udall admitted that he chatted online with people who purported to
be 14 years old and as young as 11 and 12 years old. People would
sometimes send him pornographic pictures of children, but he would
delete them. He was not looking for photos; he "was seeking chat." He
admitted that he wrote, "I really get turned on by girls your age" to a
person who said she was 14 years old. He joined chat groups that had
names
such
as
"youngnudegirlsonly,"
"1800gotlolitas,"
and
"schoolgirlcuties." Udall admitted that his chats were about having sex
with children, but he denied that it was his fantasy to have sex with
children.
Udall's church suggested all the members become Facebook
friends, and that was how Julia became his friend on Facebook. Julia's
grandfather also approached Wife and asked the family to befriend Julia
because she had a rough childhood and she needed good friends.
Udall testified that his first Internet conversation with Julia of a
sexual nature occurred on Thursday, September 17, 2009. That night,
Udall and Wife had a "pretty big argument over finances ...." They had one
particular medical bill that was $124,000 and their insurance companies
did not want to pay it. Other bills were also stacking up. Udall began
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chatting with Julia on Facebook and told her about the fight. Julia said if
she were his wife, they would not have fights like that. Udall wrote that he
was old, and Julia told him he looked young. He testified, "She started
saying things just kind of making me feel good." He admitted that he
talked about going to the movies, asked Julia if she were a virgin, and
started talking about having sex. He viewed his conversations with Julia
like his Yahoo Messenger chats, as an escape from reality. Udall said it
was Julia who asked him to text her, but he admitted that he sent her texts
about sex on Friday, September 18, 2009, and specifically texted about
finding a time and place to meet. Asked why he would text a 13-year-old
girl about sex, Udall responded, "Wish I wasn't. I just got caught up in the
moment."
1
2
3
4
5
6
7
Udall discussed meeting Julia at a park, but he had no intention of
meeting her. He only wrote that he would try to meet her, and he never
planned to meet her. Udall testified that, during all the Facebook
conversations and text messages of September 17, 18 and 19, 2009, he
never intended to meet Julia for the purpose of having a sexual
relationship. On cross-examination, Udall said he knew the women's
church retreat was sometime in October 2009 at Hume Lake.
8
9
10
11
The jury found Udall guilty of counts 1, 2, 4, 5, and 6. The jury
found Udall not guilty of count 3, arranging a meeting with a minor for the
purpose of engaging in lewd or lascivious behavior.
12
13
The trial court sentenced Udall to state prison for a total term of
three years eight months, consisting of the middle term of three years for
count 1, plus a concurrent middle term of three years for count 2, plus a
consecutive term of eight months (one-third the middle term of two years)
for count 4. The court stayed the sentence for counts 5 and 6 pursuant to
section 654.
14
15
16
17
People v. Udall, 2013 Cal. App. Unpub. LEXIS 7325, 2-23 (Cal. App. 2013).
III.
Discussion
18
A.
Jurisdiction
19
Relief by way of a petition for writ of habeas corpus extends to a person in
20
custody pursuant to the judgment of a state court if the custody is in violation of the
21
Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. §
22
2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 fn.7 (2000). Petitioner asserts that he
23
suffered violations of his rights as guaranteed by the U.S. Constitution.
(Pet.)
In
24
addition, the conviction challenged arises out of the Fresno County Superior Court,
25
which is located within the jurisdiction of this court. 28 U.S.C. § 2241(d); 2254(a).
26
Accordingly, this Court has jurisdiction over the instant action.
27
///
28
10
1
B.
Legal Standard of Review
2
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death
3
Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus
4
filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood,
5
114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment
6
of the AEDPA and is therefore governed by AEDPA provisions.
7
Under AEDPA, a person in custody under a judgment of a state court may only be
8
granted a writ of habeas corpus for violations of the Constitution or laws of the United
9
States. 28 U.S.C. § 2254(a); Williams, 529 U.S. at 375 n. 7. Federal habeas corpus
10
relief is available for any claim decided on the merits in state court proceedings if the
11
state court's adjudication of the claim:
12
13
14
15
16
17
(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
18
A state court decision is "contrary to" federal law if it "applies a rule that
19
contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts
20
that [are] materially indistinguishable from [a Supreme Court case] but reaches a
21
different result." Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at
22
405-06). "AEDPA does not require state and federal courts to wait for some nearly
23
identical factual pattern before a legal rule must be applied . . . The statute recognizes . .
24
. that even a general standard may be applied in an unreasonable manner." Panetti v.
25
Quarterman, 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The
26
"clearly established Federal law" requirement "does not demand more than a ‘principle'
27
or ‘general standard.'" Musladin v. Lamarque, 555 F.3d 830, 839 (2009). For a state
28
decision to be an unreasonable application of clearly established federal law under §
11
1
2254(d)(1), the Supreme Court's prior decisions must provide a governing legal principle
2
(or principles) to the issue before the state court. Lockyer v. Andrade, 538 U.S. 63, 70-
3
71 (2003). A state court decision will involve an "unreasonable application of" federal
4
law only if it is "objectively unreasonable." Id. at 75-76 (quoting Williams, 529 U.S. at
5
409-10); Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). In Harrington v. Richter, the
6
Court further stresses that "an unreasonable application of federal law is different from
7
an incorrect application of federal law." 131 S. Ct. 770, 785 (2011) (citing Williams, 529
8
U.S. at 410) (emphasis in original). "A state court's determination that a claim lacks
9
merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the
10
correctness of the state court's decision." Id. at 786 (citing Yarborough v. Alvarado, 541
11
U.S. 653, 664 (2004)). Further, "[t]he more general the rule, the more leeway courts
12
have in reading outcomes in case-by-case determinations." Id.; Renico v. Lett, 130 S.
13
Ct. 1855, 1864 (2010). "It is not an unreasonable application of clearly established
14
Federal law for a state court to decline to apply a specific legal rule that has not been
15
squarely established by this Court." Knowles v. Mirzayance, 129 S. Ct. 1411, 1419
16
(2009) (quoted by Richter, 131 S. Ct. at 786).
17
2.
Review of State Decisions
18
"Where there has been one reasoned state judgment rejecting a federal claim,
19
later unexplained orders upholding that judgment or rejecting the claim rest on the same
20
grounds." See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). This is referred to as the
21
"look through" presumption. Id. at 804; Plascencia v. Alameida, 467 F.3d 1190, 1198
22
(9th Cir. 2006).
23
unreasonable legal or factual conclusion, "does not require that there be an opinion from
24
the state court explaining the state court's reasoning." Richter, 131 S. Ct. at 784-85.
25
"Where a state court's decision is unaccompanied by an explanation, the habeas
26
petitioner's burden still must be met by showing there was no reasonable basis for the
27
state court to deny relief." Id. "This Court now holds and reconfirms that § 2254(d) does
28
not require a state court to give reasons before its decision can be deemed to have been
Determining whether a state court's decision resulted from an
12
1
‘adjudicated on the merits.'" Id.
2
Richter instructs that whether the state court decision is reasoned and explained,
3
or merely a summary denial, the approach to evaluating unreasonableness under §
4
2254(d) is the same: "Under § 2254(d), a habeas court must determine what arguments
5
or theories supported or, as here, could have supported, the state court's decision; then
6
it must ask whether it is possible fairminded jurists could disagree that those arguments
7
or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786.
8
Thus, "even a strong case for relief does not mean the state court's contrary conclusion
9
was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. at 75). AEDPA "preserves
10
authority to issue the writ in cases where there is no possibility fairminded jurists could
11
disagree that the state court's decision conflicts with this Court's precedents."
12
(emphasis added). To put it yet another way:
13
Id.
15
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.
16
Id. at 786-87. The Court then explains the rationale for this rule, i.e., "that state courts
17
are the principal forum for asserting constitutional challenges to state convictions." Id. at
18
787.
19
requirement and the doctrine of procedural bar to ensure that state proceedings are the
20
central process, not just a preliminary step for later federal habeas proceedings." Id.
21
(citing Wainwright v. Sykes, 433 U.S. 72, 90 (1977)).
14
22
It follows from this consideration that § 2254(d) "complements the exhaustion
3.
Prejudicial Impact of Constitutional Error
23
The prejudicial impact of any constitutional error is assessed by asking whether
24
the error had "a substantial and injurious effect or influence in determining the jury's
25
verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551
26
U.S. 112, 121-22 (2007) (holding that the Brecht standard applies whether or not the
27
state court recognized the error and reviewed it for harmlessness). Some constitutional
28
errors, however, do not require that the petitioner demonstrate prejudice. See Arizona v.
13
1
Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic, 466 U.S. 648, 659
2
(1984).
3
IV.
Review of Petition
Claim One – Instruction on Lesser Included Offenses
4
A.
5
Petitioner contends the trial court violated his constitutional rights by failing to
6
instruct the jury regarding lesser included offenses of sending harmful material to a
7
minor that did not require a showing of intent to seduce.
8
1.
State Court Decision
9
Petitioner presented this claim by way of direct appeal to the California Court of
10
Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the
11
appellate court and summarily denied in subsequent petition for review by the California
12
Supreme Court. (See Lodged Docs. 1-6.) Because the California Supreme Court's
13
opinion is summary in nature, this Court "looks through" that decision and presumes it
14
adopted the reasoning of the California Court of Appeal, the last state court to have
15
issued a reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 804-05, 111 S. Ct.
16
2590, 115 L. Ed. 2d 706 & n.3 (1991) (establishing, on habeas review, "look through"
17
presumption that higher court agrees with lower court's reasoning where former affirms
18
latter without discussion); see also LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir.
19
2000) (holding federal courts look to last reasoned state court opinion in determining
20
whether state court's rejection of petitioner's claims was contrary to or an unreasonable
21
application of federal law under 28 U.S.C. § 2254(d)(1)).
22
In denying Petitioner's claim, the Fifth District Court of Appeal explained:
23
II. Jury instructions
24
Udall contends the trial court erred by failing to instruct sua sponte
on section 313.1, subdivision (a), as a lesser-included offense of section
288.2, subdivision (a), the charged offense of counts 4, 5, and 6.
25
26
27
28
Section 288.2, subdivision (a), makes it a crime for a person to
knowingly send, distribute, or exhibit any harmful matter[fn4] to a minor
"with the intent of arousing, appealing to, or gratifying the lust or passions
or sexual desires of that person or of a minor, and with the intent or for the
purpose of seducing a minor ...."
14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FN4: "Harmful matter" is defined in section 313, subdivision (a), as
"matter, taken as a whole, which to the average person, applying
contemporary statewide standards, appeals to the prurient interest, and is
matter which, taken as a whole, depicts or describes in a patently
offensive way sexual conduct and which, taken as a whole, lacks serious
literary, artistic, political, or scientific value for minors."
Section 313.1, subdivision (a), makes it a misdemeanor to
knowingly sell, rent, send, distribute, or exhibit harmful matter to a minor.
We assume section 313.1, subdivision (a), is a necessarily included lesser
offense[fn5] of section 288.2, subdivision (a). (See People v. Jensen
(2003) 114 Cal.App.4th 224, 244 [§ 313.1, subd. (a), is lesser-included
offense of § 288.2, subd. (b), sending harmful matter by electronic mail,
Internet, or online service to minor with intent to seduce] (Jensen); People
v. Nakai (2010) 183 Cal.App.4th 499, 507 [assuming without deciding that
§ 313.1, subd. (a), is necessarily included offense of § 288.2, subd. (a)]
(Nakai).)
FN5: "Under California law, a lesser offense is necessarily included in a
greater offense if either the statutory elements of the greater offense, or
the facts actually alleged in the accusatory pleading, include all the
elements of the lesser offense, such that the greater cannot be committed
without also committing the lesser." (People v. Birks (1998) 19 Cal.4th
108, 117-118.)
A trial court must give an instruction on a lesser-included offense
sua sponte if the evidence warrants the instruction. (People v. Cook
(2006) 39 Cal.4th 566, 596.) The evidence warrants the instruction if there
is substantial evidence which, if accepted, would absolve the defendant of
the greater offense, but not the lesser. (People v. Waidla (2000) 22
Cal.4th 690, 733.) We review de novo the court's instructions on lesserincluded offenses. (People v. Cook, supra, at p. 596.)
Two published cases addressing this issue are instructive. In
Jensen, supra, 114 Cal.App.4th 224, the defendant engaged in many
sexually explicit chat sessions with, and sent pornographic pictures to,
"Scotty" and "Ryan," the online profiles for two fictitious 13-year-old boys
that had been created by two police officers. (Id. at pp. 227-234.) At trial,
the defendant's attorney argued that, for the defendant, this was fantasy
and entertainment but "there 'was no indication whatsoever that he ever
intended to meet these boys.'" (Id. at p. 238.) The defendant was
convicted of nine counts of attempted distribution or exhibition of harmful
matter to a minor over the Internet with intent to seduce (§§ 664, 288.2,
subd. (b)). (Jensen, supra, at p. 226.) On appeal, he argued the trial court
should have instructed the jury on the lesser offense of misdemeanor
distribution of harmful matter in violation of section 313.1, subdivision (a).
(Jensen, supra, at p. 243.) The Court of Appeal agreed, explaining:
"The evidence presented at trial raised a substantial
question as to whether defendant actually harbored the
specific intent to seduce 'Ryan' or 'Scotty.' Defendant
essentially admitted all of the other elements of the offenses.
Reasonable jurors could have concluded that defendant
distributed harmful matter to 'Ryan' and 'Scotty' believing that
they were minors and harbored the intent to arouse himself
15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
or them but lacked the intent to have any physical contact
with them. Such a conclusion is consistent with guilt of only
[section 313.1, subdivision (a)] rather than [section 288.2]."
(Jensen, supra, 114 Cal.App.4th at pp. 244-245.)
In Nakai, supra, 183 Cal.App.4th at pages 501-502, the defendant
engaged in sexual online chats with Colleen, a woman posing as a 12year-old girl living in Riverside, California. He sent her a picture of his
erect penis and, among other things, asked her if she would suck his dick
and if she would like to "ride on it." (Id. at p. 502.) Colleen told the
defendant he could come to her house that Saturday at 6:00 p.m. He
asked for her address, and she gave him the address of a house where
the Riverside County Sheriff's Department was planning an "'Internet
decoy sexual predator sting.'" (Id. at pp. 505-506.) That Saturday, the
police found defendant sitting in his car near the sting house at around
3:00 p.m. (Id. at p. 506.) He was charged with two counts of attempting to
send or exhibit harmful matter to a minor with the intent of seducing the
minor.
At trial, his attorney requested instructions on the lesser offense,
section 313.1, subdivision (a). (Nakai, supra, 183 Cal.App.4th at p. 506.)
The trial court denied the request, reasoning that defendant's chat
sessions showed his sole intention was to seduce the purported 12-yearold girl with whom he thought he was communicating. The trial court noted
that no evidence was presented that defendant harbored a different intent.
(Id. at p. 507.) The Court of Appeal "agree[d] with the trial court's
conclusion that there is no evidence that a reasonable jury could find
persuasive that, if accepted, would absolve defendant from guilt of the
greater offense but not the lesser, because the evidence only
demonstrates defendant's combined intents to arouse and seduce." (Id. at
p. 508.)
Udall argues that this case is similar to Jensen, as there was
evidence from which a reasonable jury could find that he had no intention
to seduce Julia. The Attorney General responds that this case is more like
Nakai because Udall's messages to Julia "were tailored toward seducing
the victim and getting her to meet him." For example, he talked about
going on a date with Julia when Wife was away at a women's retreat. He
said he wanted her really bad and he was "so crazy for [her]." He told her
he would go slow and not hurt her. He sent her text messages saying he
wanted to know what would make her happy. He told her he dreamed
about her and wrote, "I think I love you."
We agree with the Attorney General that Udall's own words are
persuasive evidence of his intent to seduce Julia. We cannot, however,
ignore Udall's own testimony that he never intended to meet Julia for the
purpose of having a sexual relationship. This was arguably evidence from
which a jury could find that Udall committed the lesser offense of sending
harmful material, but not the greater offense of doing so with the intent to
seduce. For this reason, we hesitate to conclude that no instruction on
section 313.1, subdivision (a), should have been given in this case.
Even so, Udall's contention fails because we find no prejudice. In a
noncapital case, failure to instruct sua sponte on lesser-included offenses
that are supported by the evidence is reviewed for prejudice under
Watson.[fn6] (People v. Breverman (1998) 19 Cal.4th 142, 178.) Thus, "[a]
16
4
conviction of the charged offense may be reversed in consequence of this
form of error only if, 'after an examination of the entire cause, including the
evidence' (Cal. Const., art. VI, § 13), it appears 'reasonably probable' the
defendant would have obtained a more favorable outcome had the error
not occurred." (Ibid.) Here, the evidence of Udall's intent to seduce Julia
was overwhelming. The only counterevidence was Udall's testimony that,
while he enjoyed the fantasy, he never intended to have sex with Julia.
Obviously, the jury was not swayed by this testimony.
5
FN6: People v. Watson (1956) 46 Cal.2d 818, 836.
6
The jury received its final instructions on the afternoon of May 17,
2011, and deliberated for fewer than 30 minutes. The next day, the jury
resumed deliberations at 1:25 p.m. and submitted a question to the court
at 4:25 p.m. The jury adjourned for the day at 4:35 p.m. The question
related to count 3, arranging a meeting with a minor for the purpose of
engaging in lewd or lascivious behavior in violation of section 288.4,
subdivision (a)(1).
1
2
3
7
8
9
10
11
12
13
14
15
16
17
The next day, the court addressed the jury's question first thing in
the morning. The jury resumed deliberations at 9:04 a.m. and notified the
clerk it had reached a verdict at 9:35 a.m. In addition to finding Udall guilty
of three counts involving section 288.2, subdivision (a), the jury found him
guilty of two counts of violation of section 288.3, subdivision (a),
contacting or attempting to contact a minor with intent to commit certain
felonies (in this case, lewd and lascivious conduct with a minor). This
means the jury determined that Udall intended to commit acts with Julia,
rejecting Udall's testimony that he had no intention of ever meeting Julia.
In light of these proceedings, it is not reasonably probable that Udall would
have obtained a more favorable outcome had the trial court given
instructions on section 313, subdivision (a).
People v. Udall, 2013 Cal. App. Unpub. LEXIS 7325 at 23-30.
2.
Analysis
18
To the extent Petitioner alleges the instructional claim violated state law,
19
Petitioner's claim is not cognizable in this proceeding. The Supreme Court has held that
20
a challenge to a jury instruction solely as an error under state law does not state a claim
21
cognizable in federal habeas corpus proceedings. Estelle v. McGuire, 502 U.S. at 71-72.
22
A claim that an instruction was deficient in comparison to a state model or that a trial
23
judge incorrectly interpreted or applied state law governing jury instructions does not
24
entitle one to relief under § 2254, which requires violation of the Constitution, laws, or
25
treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3). Accordingly, to the extent
26
that Petitioner raises state law claims, his claims should be dismissed.
27
28
17
1
Although the Supreme Court has held that the failure to instruct on lesser included
2
offenses can constitute constitutional error in capital cases, Beck v. Alabama, 447 U.S.
3
625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980), it has reserved decision on whether such
4
an omission in non-capital cases constitutes constitutional error, id. at 638 n.7. When the
5
Supreme Court has expressly reserved consideration of an issue, there is no Supreme
6
Court precedent creating clearly established federal law relating to a petitioner's habeas
7
claim. Alberni v. McDaniel, 458 F.3d 860, 864 (9th Cir. 2006). Therefore, a petitioner
8
cannot rely on circuit authority, and there is no basis for relief pursuant to § 2254(d)(1)
9
for an unreasonable application of clearly established federal law. Alberni v. McDaniel,
10
458 F.3d at 864; Brewer v. Hall, 378 F.3d 952, 955-57 (9th Cir. 2004).
11
Accordingly, there is no clearly established federal law within the meaning of §
12
2254(d) concerning a state court's rejection of a claim that Sixth and Fourteenth
13
Amendment rights in a non-capital case were violated by a failure to instruct on a lesser
14
included offense. Thus, such a claim is not cognizable in a proceeding pursuant to 28
15
U.S.C. § 2254 and is subject to dismissal. Windham v. Merkle, 163 F.3d 1092, 1105-06
16
(9th Cir. 1998).
17
Further, the absence of the instruction did not result in any fundamental
18
unfairness. The only basis for federal collateral relief for instructional error is that an
19
infirm instruction or the lack of instruction by itself so infected the entire trial that the
20
resulting conviction violates due process. Estelle v. McGuire, 502 U.S. at 71-72; Cupp v.
21
Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); see Donnelly v.
22
DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974) (it must be
23
established not merely that the instruction is undesirable, erroneous or even "universally
24
condemned," but that it violated some right guaranteed to the defendant by the
25
Fourteenth Amendment). The Court in Estelle emphasized that the Court had very
26
narrowly defined the category of infractions that violate fundamental fairness, and that
27
beyond the specific guarantees enumerated in the Bill of Rights, the Due Process
28
Clause has limited operation. 502 U.S. at 72-73.
18
1
However, when habeas is sought under 28 U.S.C. § 2254, a failure to instruct on
2
the defense theory of the case constitutes error if the theory is legally sound and
3
evidence in the case makes it applicable. Clark v. Brown, 450 F.3d 898, 904 (9th Cir.
4
2006); see Mathews v. United States, 485 U.S. 58, 63, 108 S. Ct. 883, 99 L. Ed. 2d 54
5
(1988) (reversing a conviction and holding that even if a defendant denies one or more
6
elements of the crime, he is entitled to an entrapment instruction whenever there is
7
sufficient evidence from which a reasonable jury could find entrapment, and the
8
defendant requests such an instruction).
9
Petitioner contends that he had no intention in meeting with the victim, and
10
therefore the lesser included offense of sending harmful matter to a minor under Cal.
11
Penal Code. 313.1(a) which did not require a showing of intent to seduce or arouse was
12
applicable.
13
The state court noted that it took into consideration Petitioner’s testimony that he
14
never intended to act on the conversations and attempt to meet with the victim.
15
However, the Court of Appeal concluded that even assuming that the state court erred in
16
failing to give the instruction, there was no prejudice. The Court noted that the jury
17
deliberated and convicted Petitioner of sending harmful materials with the intent to
18
seduce, along with other charges including two counts of contacting or attempting to
19
contact a minor with intent to commit a lewd act. Based on all the convictions, the state
20
court held that the jury necessarily discredited his comments that he did not intend to
21
act, but instead found that he did have the requisite intent to meet with the victim and
22
commit lewd and lascivious conduct.
23
In his traverse, Petitioner’s main contention is that he did not actually attempt to
24
meet with the victim at the arraigned time, and therefore there was no evidence of intent.
25
Under California law intent is viewed at the time the harmful material was sent, not
26
whether there was intent to seduce at the time of the arraigned meeting. See People v.
27
Nakai, 183 Cal. App. 4th 499, 508 (2010). The fact that Petitioner did not attempt to
28
meet the victim does not negate the jury’s finding of intent that occurred at the time
19
1
Petitioner was engaged in his internet communication with the victim. Based on the
2
frequency, duration, and detail of Petitioner’s conversations, it was reasonable for the
3
state court to find that Petitioner did not suffer any fundamental unfairness or that the
4
omission of the instruction had any substantial or injurious effect or influence in
5
determining the jury's verdict. Accordingly, the Court denies Petitioner's claim concerning
6
the failure to instruct on the lesser included offense of Cal. Penal Code 313.1(a).
Claim Two – Equal Protection and Custody Credit Calculation
7
B.
8
Petitioner, in his second claim, contends that his equal protection rights were
9
violated when he was denied a more generous rate of custody credit calculation.
10
1.
State Court Decision
11
Petitioner presented this claim by way of direct appeal to the California Court of
12
Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the
13
appellate court and summarily denied in subsequent petition for review by the California
14
Supreme Court. (See Lodged Docs. 1-6.) Because the California Supreme Court's
15
opinion is summary in nature, this Court "looks through" that decision and presumes it
16
adopted the reasoning of the California Court of Appeal, the last state court to have
17
issued a reasoned opinion. See Ylst, 501 U.S. at 804-05.
18
In denying Petitioner's claim, the Fifth District Court of Appeal explained:
19
IV. Presentence conduct credit
20
The trial court sentenced Udall on July 26, 2011. He received
conduct credit calculated at the rate of two days for every four days
served, the accrual rate provided under former section 4019. (Stats. 2010,
ch. 426, § 2; see People v. Ellis (2012) 207 Cal.App.4th 1546, 1549.)
Section 4019 was amended effective October 1, 2011, to provide for
accrual of conduct credit at a day-for-day rate. (Stats. 2011, ch. 39, § 53.)
Although Udall was sentenced before the current section 4019 came into
effect, he claims he is entitled to its more generous rate of conduct credit
accrual based on equal-protection principles. After Udall filed his opening
brief, our court rejected this argument in People v. Ellis, supra, at page
1552. We decline to revisit Ellis and, as a consequence, Udall's equalprotection claim fails.
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People v. Udall, 2013 Cal. App. Unpub. LEXIS 7325 at 45-46.
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2.
Analysis
2
The Equal Protection Clause essentially requires that all persons similarly situated
3
be treated alike. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.
4
Ct. 3249, 87 L. Ed. 2d 313 (1985). "States must treat like cases alike but may treat
5
unlike cases accordingly." Vacco v. Quill, 521 U.S. 793, 799, 117 S. Ct. 2293, 138 L. Ed.
6
2d 834 (1997) (citing Plyler v. Doe, 457 U.S. 202, 216, 102 S. Ct. 2382, 72 L. Ed. 2d 786
7
(1982) and Tigner v. Texas, 310 U.S. 141, 147, 60 S. Ct. 879, 84 L. Ed. 1124 (1940)).
8
The Fourteenth Amendment "guarantees equal laws, not equal results." McQueary v.
9
Blodgett, 924 F.2d 829, 835 (9th Cir. 1991) (quoting Personnel Adm'r v. Feeney, 442
10
U.S. 256, 273, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979)). Moreover, "a mere
11
demonstration of inequality is not enough… There must be an allegation of
12
invidiousness or illegitimacy in the statutory scheme before a cognizable claim arises."
13
McQueary, 924 F.2d at 835. A habeas petitioner has the burden of alleging facts
14
sufficient to establish "a prima facie case of uneven application." Id.
15
In People v. Lara, the California Supreme Court explained:
16
Today local prisoners may earn day-for-day credit without regard to
their prior convictions. (See § 4019, subds. (b), (c) & (f), as amended by
Stats.2011, ch. 15, § 482.) This favorable change in the law does not
benefit defendant because it expressly applies only to prisoners who are
confined to a local custodial facility "for a crime committed on or after
October 1, 2011." ( § 4019, subd. (h), italics added.)
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Defendant argues the Legislature denied equal protection (see U.S.
Const., 14th Amend.; Cal. Const., art. I, § 7) by making this change in the
law expressly prospective. We recently rejected a similar argument in
People v. Brown (2012) 54 Cal.4th 314, 328-330, 142 Cal.Rptr.3d 824,
278 P.3d 1182 (Brown). As we there explained, "'[t]he obvious purpose'"
of a law increasing conduct credits "'is to affect the behavior of inmates by
providing them with incentives to engage in productive work and maintain
good conduct while they are in prison.' [Citation.] '[T]his incentive purpose
has no meaning if an inmate is unaware of it. The very concept demands
prospective application.'" (Brown, at p. 329, 142 Cal.Rptr.3d 824, 278 P.3d
1182, quoting In re Strick (1983) 148 Cal.App.3d 906, 913, 196 Cal.Rptr.
293.) Accordingly, prisoners who serve their pretrial detention before such
a law's effective date, and those who serve their detention thereafter, are
not similarly situated with respect to the law's purpose. (Brown, at pp. 328329, 142 Cal.Rptr.3d 824, 278 P.3d 1182.)
54 Cal.4th at 906, n.9. Petitioner has failed to demonstrate that he was treated
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differently from other similarly situated prisoners without a rational basis. This is
2
because, as explained in Lara, Petitioner is not similarly situated with prisoners who
3
committed their crimes after the revision of the conduct credit provisions of the
4
Realignment Act. Petitioner has also failed to demonstrate "invidiousness or illegitimacy
5
in the statutory scheme." McQueary, 924 F.2d at 835.
6
The decision of the California Court of Appeal denying petitioner's Equal
7
Protection claim is not contrary to or an unreasonable application of federal law.
8
Accordingly, Petitioner is not entitled to federal habeas relief.
9
C.
Claim Three – Violation of First Amendment Rights
10
In claim three of the petition, Petitioner asserts that the various sections of Cal.
11
Penal Code § 288 for which he was convicted violate the First Amendment. (See Pet. at
12
9-12.) Petitioner did not present this claim on review to state court, and it is therefore
13
unexhausted. However, “[a]n application for a writ of habeas corpus may be denied on
14
the merits, notwithstanding the failure of the applicant to exhaust the remedies available
15
in the courts of the State.” 28 U.S.C. 2254(b)(2).
16
The Ninth Circuit recently stated, "In the case of a habeas petition implicating the
17
First Amendment, we first 'must, as a reviewing court, conduct our own independent
18
review of the record. In so doing, we must exercise independent judgment as to the legal
19
issue of whether [the habeas petitioner]'s speech and association were protected." See
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Shoemaker v. Taylor, 730 F.3d 778, 784 (9th Cir. 2013) (quoting McCoy v. Stewart, 282
21
F.3d 626, 629 (9th Cir.2002) (conducting an independent review prior to analyzing a
22
habeas claim implicating the First Amendment)). However, Petitioner’s speech is not
23
protected by the First Amendment. Petitioner's First Amendment challenge lacks merit
24
because Cal. Penal Code § 288, which proscribes lewd or lascivious acts against
25
minors, criminalizes conduct rather than speech. See United States v. Williams, 553 U.S.
26
285, 297, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008) ("Offers to engage in illegal
27
transactions are categorically excluded from First Amendment protection.").
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In a similar case, the Ninth Circuit rejected a facial overbreadth challenge to a
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federal criminal statute, 18 U.S.C. § 2422(b), which had been used to prosecute a
2
defendant for knowingly inducing a minor over the internet to engage in illegal sexual
3
acts. See United States v. Dhingra, 371 F.3d 557, 561-62 (9th Cir. 2004). The Ninth
4
Circuit reasoned that the statute limited only conduct outside the First Amendment's
5
protection (i.e., the targeted inducement of minors for illegal sexual activity). See id.
6
Based on the same reasoning, § 288 is not facially overbroad because it criminalizes
7
conduct, such as the touching or attempted touching of a minor's body with sexual intent,
8
rather than speech. See United States v. Meek, 366 F.3d 705, 721 (9th Cir. 2004)
9
(finding no First Amendment protection where "speech is merely the vehicle through
10
which a pedophile ensnares the victim."); see also United States v. Hornaday, 392 F.3d
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1306, 1311 (11th Cir. 2004) ("Speech attempting to arrange the sexual abuse of children
12
is no more constitutionally protected than speech attempting to arrange any other type of
13
crime."); United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000) ("[T]he Defendant
14
simply does not have a First Amendment right to attempt to persuade minors to engage
15
in illegal sexual acts.").
16
To the extent Penal Code § 288 might otherwise chill a substantial amount of
17
protected speech, its intent requirement eliminates that possibility. Section 288 requires
18
intent to arouse or gratify the sexual desires of either the perpetrator or victim; in other
19
words, there must be an intent to sexually exploit a minor. See People v. Martinez, 11
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Cal. 4th 434, 444 (1995) ("[C]ourts have long indicated that section 288 prohibits all
21
forms of sexually motivated contact with an underage child. Indeed the 'gist' of the
22
offense has always been the defendant's intent to sexually exploit a child, not the nature
23
of the offending act.") (citation omitted); see also Bailey, 228 F.3d at 639 (finding no
24
overbreadth problem where "[t]he statute only applies to those who 'knowingly' persuade
25
or entice, or attempt to persuade or entice, minors. Thus, it only affects those who intend
26
to target minors.").
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Accordingly, the Court finds that Petitioner’s claim is without merit, and it would
28
not have been an objectively unreasonable determination of the state court to conclude
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that § 288 does not violate the First Amendment. Petitioner is not entitled to relief with
2
regard to his third claim.
3
V.
4
Conclusion
Petitioner is not entitled to relief with regard to the claims presented in the instant
5
petition. The Court therefore orders that the petition be DENIED.
6
VI.
Certificate of Appealability
7
A state prisoner seeking a writ of habeas corpus has no absolute entitlement to
8
appeal a district court’s denial of his petition, and an appeal is only allowed in certain
9
circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute
10
in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which
11
provides as follows:
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(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.
(3) The certificate of appealability under paragraph (1) shall
indicate which specific issue or issues satisfy the showing
required by paragraph (2).
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
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constitutional claims or that jurists could conclude the issues presented are adequate to
2
deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack v.
3
McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the
4
merits of his case, he must demonstrate “something more than the absence of frivolity or
5
the existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at 338.
6
In the present case, the Court finds that no reasonable jurist would find the
7
Court’s determination that Petitioner is not entitled to federal habeas corpus relief wrong
8
or debatable, nor would a reasonable jurist find Petitioner deserving of encouragement
9
to proceed further. Petitioner has not made the required substantial showing of the
10
denial of a constitutional right. Accordingly, the Court hereby DECLINES to issue a
11
certificate of appealability.
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VII.
Order
13
Accordingly, IT IS HEREBY ORDERED:
14
1) The petition for writ of habeas corpus is DENIED;
15
2) The Clerk of Court is DIRECTED to enter judgment and close the case; and
16
3) The Court DECLINES to issue a certificate of appealability.
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IT IS SO ORDERED.
Dated:
December 20, 2016
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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