Provencio v. Lizzarraga

Filing 26

FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus (Doc. 1 ) be DENIED signed by Magistrate Judge Michael J. Seng on 10/31/2017. Referred to Judge O'Neill. Objections to F&R due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALFREDO PROVENCIO,
Petitioner,

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v.
SHAWN HATTON, Warden
Respondent.

Case No. 1:15-cv-01327-LJO-MJS (HC)
FINDINGS AND RECOMMENDATION TO
DENY PETITION FOR WRIT OF HABEAS
CORPUS
(ECF NO. 1)
THIRTY (30) DAY OBJECTION DEADLINE

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

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corpus under 28 U.S.C. § 2254. Shawn Hatton, Warden of Correctional Training Facility,

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is hereby substituted as the proper named respondent pursuant to Rule 25(d) of the

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Federal Rules of Civil Procedure. Respondent is represented by Lewis Albert Martinez of

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the Office of the California Attorney General.

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The petition raises the following claims: (1) portions of Petitioner’s interview with

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police should have been suppressed pursuant to MIranda; (2) instructional error resulted

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in confusion as to the applicable state of mind for the offense of continuous sexual

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abuse of a minor; and (3) there was insufficient evidence to support a finding that

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Petitioner caused great bodily harm to the victim. (ECF No. 1.)

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As discussed below, the undersigned recommends the petition be denied.
I.

Procedural History

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Petitioner is in the custody of the California Department of Corrections and

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Rehabilitation pursuant to the September 10, 2012 judgment of the Kings County

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Superior Court, imposing a term of fifty years to life for continuous sexual abuse of a

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child, with allegations that Petitioner inflicted great bodily harm on the victim and had a

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prior “strike” conviction. (Lodged Doc. 1 at 243-44.) Petitioner also was convicted of

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exhibiting lewd material to a minor in a separate judgment. (Lodged Doc. 1 at 242.)

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On April 3, 2014, the California Court of Appeal, Fifth Appellate District, reversed

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the judgment for exhibiting lewd material to a minor but otherwise affirmed. On June 11,

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2014, the California Supreme Court denied Petitioner's petition for review. (Lodged Doc.

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17).

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On August 31, 2015, Petitioner filed the instant petition for writ of habeas corpus.

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(ECF No. 1.) On October 30, 2015, Respondent filed an answer. (ECF No. 16.)

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Petitioner filed no traverse. The matter is submitted.

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II.

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Factual Background
The following facts are taken from the Fifth District Court of Appeal’s April 3, 2014

opinion. They and are presumed correct. 28 U.S.C. § 2254(e)(1).

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The Information

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The information originally contained 23 counts. The trial court
granted the prosecution's motion to dismiss five of the counts
before the matter was submitted to the jury. The jury
considered 16 counts of molestation related to five different
incidents described by the victim. Specifically, there were six
counts charging Provencio with violating section 288,
subdivision (a), and separate counts alleging Provencio
violated each of the following sections once: sections 269,
subdivision (a)(1), (3), (4), (5), 288, subdivision (b)(1), 288a,
subdivision (c)(1), (2)(B), 286, subdivision (c)(2)(B), 261,
subdivision (a)(2), and 289, subdivision (a)(1)(B).

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In the alternative, the information charged Provencio with
continuous sexual abuse of a child, in violation of section
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288.5, subdivision (a). Finally, Provencio was charged with
exhibiting harmful material to a child, in violation of section
288.2, subdivision (a).

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The information also alleged two enhancements. Several
counts alleged Provencio personally inflicted bodily harm as
defined in section 667.61, subdivision (a). The second
enhancement alleged Provencio had suffered a prior
conviction that constituted a strike within the meaning of
section 667, subdivisions (b) through (i).

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The Testimony

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The victim (Victim) testified she was 14 years old at the time
of trial. Her first sexual encounter with Provencio occurred
shortly after she and her family moved into an apartment with
him when she was approximately seven years old. The family
had purchased an air mattress for camping, and Victim
wanted to sleep on it in the living room. Sometime during the
night Provencio joined her on the air mattress. Victim woke
up in the middle of the night and discovered Provencio
touching her vagina underneath her underwear. After a few
minutes, Victim rolled onto her side, got up, went to the
bathroom, and then joined her mother in bed.
Approximately one year later, Victim and Provencio were in
the bedroom he shared with Victim's mother. The two were
playing around and making jokes. Suddenly, Provencio
stated he wanted to “nail [Victim] so bad.” He then started
touching her body, including her breasts and genital area.
She attempted to push him away, but he would not stop. He
stopped when Victim's mother returned home.
After this second incident, the molestation happened more
frequently and eventually escalated. Victim was able to relate
an incident that occurred when she and her brother spent the
night in a tent in their backyard. She awoke in the middle of
the night to find Provencio next to her removing her pants. He
rubbed her vagina with his fingers and placed his finger
inside it. He also rubbed his penis against her vagina and
then inserted his penis into her vagina. When he finished,
Provencio left the tent.
The events of molestation continued and eventually
escalated into nightly abuse. Provencio started telling Victim
what he wanted her to do to him and how to do it. His
requests included instructing her to copulate him orally. He
also would copulate her orally. She explained that whenever
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she wanted money to buy things, he would demand a sexual
encounter before he would give it to her.
Victim testified Provencio sodomized her “almost every time.”
She claimed that every time he sodomized her it was painful.
A few times after being sodomized, she would bleed, and it
would hurt to walk for a few days.

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Victim also testified to incidents where her arms were bruised
by Provencio. She explained that she attempted to get away
from him when he wanted to sodomize her. He would grab
her arms and push her back onto the bed. The force used by
him to restrain her left bruises. This type of incident occurred
often.
Two nights before Victim reported the molestations to the
police, Provencio had intercourse with her. She did not report
the molestations for a long time because she was scared.
Provencio told her that if she ever told anyone about the
molestation, he or his friends would hurt her, her brother, and
her mother. He also would take things away from her if she
made him angry and threatened that the family would end up
on the streets if he was arrested. She finally confided in her
godmother because Provencio began verbally and physically
abusing her brother and mother.
Finally, Victim described an occasion when she watched
pornography with Provencio. She was watching television
when he called her over to see something on his computer,
which turned out to be pornographic videos. She tried to walk
away, but he pulled her back and made her watch the videos.
She remembered the girls in the video were dressed in
provocative Valentine's Day or Christmas Day themed
clothes.
Victim described a bottle of lubricant used by Provencio and
described where he stored the bottle. Investigating officers
located the bottle of lubricant in the location described by
Victim. Investigating officers also found black underwear in
Victim's bedroom in the location she described after her last
encounter with Provencio.
DNA testing of a biological stain found on the underwear
located two male contributors. Analysis of the major
contributor was consistent with Provencio and other males
who were related to Provencio. In terms of probability, the
sequence obtained from the sample would occur in one in

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every 942 African–Americans, one in every 704 Caucasians,
and one in every 572 Hispanics.
Lucy Sager, the nurse examiner for the Sexual Assault
Response Team, examined Victim. Sager found bruising on
the back of Victim's upper right thigh, although she could not
determine if the bruising was related to a sexual assault. She
noted redness and tenderness in one part of the vaginal area
that was the result of an object rubbing the area, possibly
caused by a sexual assault. In another part of the vaginal
area she observed a laceration of recent origin. She
observed scarring to the perineum, indicating there had been
some type of trauma, possibly multiple traumas, resulting in
multiple healed injuries. She observed redness and
tenderness in the anal area. There also were bruises on
Victim's buttocks. These injuries were consistent with the
history described by Victim, although the injuries could have
been caused by a mechanism other than a sexual assault.
Robert Waggle, an investigator for the district attorney's
office, examined various electronic devices related to
Provencio. The first was a memory stick that was removed
from a portable gaming device. Waggle found two files that
contained adult pornographic videos. On a flash drive Waggle
found several pornographic video files, including one that
suggested a Valentine's Day themed video and another that
contained a Christmas Day themed video. Other files
depicted a boy sleeping with his friend's mother, girl-on-girl
videos, and a girl sleeping with her friend's brother. Waggle
described the videos as “Complete hardcore porn.” An
external hard drive contained a password-protected file
entitled “O.K. Raiders” that contained adult pornographic
videos.

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Provencio testified in his defense. He denied ever having
sexual contact with Victim and explained some of the
incidents in a manner that did not involve sexual contact. He
also explained the pornography found on his computer
paraphernalia, but he denied ever having shown it to Victim.
Outside the presence of the jury, Provencio admitted his prior
strike conviction.

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Closing Arguments

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The prosecution suggested the jury focus on the continuous
sexual abuse of a child allegation. If the jury found Provencio
guilty of that count, it could ignore the individual charges. The
prosecution then asserted there was more than ample

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evidence that Provencio committed more than three acts of
molestation over a period in excess of three months.

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Defense counsel argued Victim fabricated the charges,
essentially parroting the testimony she had heard on a
television news program. In addition, defense counsel argued
there was insufficient evidence Victim had suffered bodily
harm within the meaning of the enhancement.

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Verdict and Sentencing

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The jury accepted the prosecutor's suggestion and found
Provencio guilty of continuous sexual abuse of a child, in
violation of section 288.5, subdivision (a), and exhibiting
harmful material to a child, in violation of section 288.2,
subdivision (a). The jury also found true the allegation that
Provencio had inflicted bodily harm within the meaning of
section 667.61, subdivision (a).

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The trial court sentenced Provencio to a term of 50 years to
life for the continuous sexual abuse of a child count. The term
for this count starts with a triad of six, 12, or 16 years. This
term was increased to 25 years to life pursuant to section
667.61 because the jury concluded Provencio personally
inflicted bodily harm on Victim, who was under the age of 14.
(Id., subds. (a), (c)(9), (d)(7).) The term was then doubled
because Provencio admitted he had a prior conviction that
constituted a strike within the meaning of section 667,
subdivisions (b) through (i). The sentence on the remaining
count was imposed concurrently

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People v. Provencio, No. F065755, 2014 WL 1327984, at *1–3 (Cal. Ct. App. Apr. 3,
2014)
III.

Jurisdiction and Venue
Relief by way of a writ of habeas corpus extends to a prisoner under a judgment

of a state court if the custody violates the Constitution, laws, or treaties of the United
States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362,
375 n.7 (2000). Petitioner asserts that he suffered a violation of his rights as guaranteed
by the U.S. Constitution. Petitioner was convicted and sentenced in this district. 28
U.S.C. § 2241(d); 2254(a). The Court concludes that it has jurisdiction over the petition
and that venue is proper.

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IV.

Applicable Law

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The petition was filed after April 24, 1996 and is governed by the Antiterrorism

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and Effective Death Penalty Act of 1996 (“AEDPA”). Lindh v. Murphy, 521 U.S. 320, 326

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(1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, federal

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habeas corpus relief is available for any claim decided on the merits in state court

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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

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

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28 U.S.C. § 2254(d).
A.

Standard of Review

A state court decision is “contrary to” federal law if it “applies a rule that
contradicts governing law set forth in [Supreme Court] cases” or “confronts a set of facts
that are materially indistinguishable from” a Supreme Court case, yet reaches a different
result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-06).
“AEDPA does not require state and federal courts to wait for some nearly identical
factual pattern before a legal rule must be applied. . . . The statue recognizes . . . that
even a general standard may be applied in an unreasonable manner” Panetti v.
Quarterman, 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The
“clearly established Federal law” requirement “does not demand more than a ‘principle’
or ‘general standard.’” Musladin v. Lamarque, 555 F.3d 830, 839 (2009). For a state
decision to be an unreasonable application of clearly established federal law under
§ 2254(d)(1), the Supreme Court's prior decisions must provide a governing legal
principle (or principles) to the issue before the state court. Lockyer v. Andrade, 538 U.S.
63, 70-71 (2003).

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A state court decision will involve an “unreasonable application of” federal law

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only if it is “objectively unreasonable.” Id. at 75-76 (quoting Williams, 529 U.S. at 409-

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10); Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). “[A]n unreasonable application of

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federal law is different from an incorrect application of federal law.” Harrington v. Richter

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562 U.S. 86, 101 (2011) (citing Williams, 529 U.S. at 410) (emphasis in original). “A state

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court's determination that a claim lacks merit precludes federal habeas relief so long as

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‘fairminded jurists could disagree’ on the correctness of the state court's decision.” Id.

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(citing Yarborough v. Alvarado, 541 U.S. 653, 664 (2004)). Further, “[t]he more general

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the rule, the more leeway courts have in reading outcomes in case-by-case

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determinations.” Id.; Renico v. Lett, 130 S. Ct. 1855, 1864 (2010). “It is not an

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unreasonable application of clearly established Federal law for a state court to decline to

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apply a specific legal rule that has not been squarely established by [the Supreme

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Court].” Knowles v. Mirzayance, 556 U.S. 111, 122 (2009).

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B.

Requirement of Prejudicial Error

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In general, habeas relief may only be granted if the constitutional error

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complained of was prejudicial. That is, it must have had “a substantial and injurious

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effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S.

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619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (holding that the

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Brecht standard applies whether or not the state court recognized the error and reviewed

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it for harmlessness). Some constitutional errors, however, do not require a showing of

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prejudice. See Arizona v. Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic,

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466 U.S. 648, 659 (1984). Furthermore, claims alleging ineffective assistance of counsel

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are analyzed under the Strickland prejudice standard; courts do not engage in a

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separate analysis applying the Brecht standard. Strickland v. Washington, 466 U.S. 668

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(1984); Avila v. Galaza, 297 F.3d 911, 918, n.7 (2002); Musalin v. Lamarque, 555 F.3d

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830, 834 (9th Cir. 2009).

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C.

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“[S]tate courts are the principal forum for asserting constitutional challenges to

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state convictions,” not merely a “preliminary step for a later federal habeas proceeding.”

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Richter, 562 U.S. at 103. Whether the state court decision is reasoned and explained, or

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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

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arguments or theories supported or . . . could have supported, the state court's decision;

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then it must ask whether it is possible fairminded jurists could disagree that those

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arguments or theories are inconsistent with the holding in a prior decision of [the

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Deference to State Court Decisions

Supreme Court].” Id. at 102. In other words:

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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 103. Thus, the Court may issue the writ only “in cases where there is no possibility

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fairminded jurists could disagree that the state court's decision conflicts with [the

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Supreme Court’s] precedents.” Id. at 102.

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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). Thus, the court will “look

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through” a summary denial to the last reasoned decision of the state court. Id. at 804;

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Plascencia v. Alameida, 467 F.3d 1190, 1198 (9th Cir. 2006). Furthermore, the district

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court may review a habeas claim, even where the state court’s reasoning is entirely

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unexplained. Richter, 562 U.S. at 98. “Where a state court's decision is unaccompanied

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by an explanation, the habeas petitioner's burden still must be met by showing there was

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no reasonable basis for the state court to deny relief.” Id. (“This Court now holds and

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reconfirms that § 2254(d) does not require a state court to give reasons before its

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decision can be deemed to have been ‘adjudicated on the merits.’”).

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V.

Review of Petition

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A.

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As described in greater detail below, Petitioner participated in a recorded

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interview with police. While much of the interview was uneventful, the interviewing

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detective eventually accused Petitioner of molesting the victim. During this accusation,

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Petitioner nodded his head repeatedly. Immediately thereafter, he requested counsel

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and the interview was terminated. The prosecution was permitted to introduce at trial

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evidence of the nodding through the testimony of the interviewing detective. Petitioner

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argues that the nodding was part of his exercise of his Miranda rights and should have

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been suppressed.

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Claim One: Miranda

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State Court Decision

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The California Supreme Court summarily denied this claim. Accordingly, the Court

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“looks through” the Supreme Court’s decision to the reasoned decision of the Fifth

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District Court of Appeal. See Ylst, 501 U.S. at 804. The Court of Appeal rejected

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Petitioner’s claim as follows:

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Provencio was interviewed by the police after Victim reported
the molestation. This interview was recorded with audio and
video equipment. Much of the interview was not relevant to
the proceedings. After about one hour, however, the
interrogating detective accused Provencio of molesting
Victim. Seconds after the accusation, Provencio invoked his
right to counsel and the interview was terminated.
When the interrogating detective accused Provencio of
molesting Victim, Provencio nodded his head. The
prosecution contended these movements were an admission
and elicited this information from the interviewing detective at
trial. Provencio objected to this testimony, asserting he was in
custody, and the nods were part of his invocation of his
constitutional rights pursuant to Miranda. The trial court
overruled the objection after an Evidence Code section 402
hearing and after viewing the videotape of the interview.
Defense counsel, for tactical reasons, then decided to
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introduce the entire invocation process to put the nods of
Provencio's head into context.
Provencio contends the trial court erred when it permitted the
prosecution to elicit evidence that he nodded his head,
relying on the same two grounds as urged in the trial court.
“‘In reviewing constitutional claims of this nature, it is well
established that we accept the trial court's resolution of
disputed facts and inferences, and its evaluations of
credibility, if supported by substantial evidence. We
independently determine from the undisputed facts and the
facts properly found by the trial court whether the challenged
statement was illegally obtained.’ [Citation.]” (People v.
Thomas (2011) 51 Cal.4th 449, 476.)

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Provencio's first argument is that he was in custody at the
time he nodded his head. “‘An interrogation is custodial, for
purposes of requiring advisements under Miranda, when “a
person has been taken into custody or otherwise deprived of
his freedom of action in any significant way.” [Citations.]
Whether a person is in custody is an objective test; the
pertinent question being whether the person was formally
arrested or subject to a restraint on freedom of movement of
the degree associated with a formal arrest. [Citation.]’ ”
(People v. Linton (2013) 56 Cal.4th 1146, 1167.)
The only witness to testify at the Evidence Code section 402
hearing was the detective who interrogated Provencio. He
testified Provencio was contacted in the front yard of his
home as he returned from work. The detective identified
himself as a police officer and was displaying a badge and
weapon. He asked Provencio if he would be willing to come
to the police department to discuss “an allegation.” Provencio
agreed and was transported in a police car to the police
station. He was not placed in handcuffs.
The interrogating detective met Provencio in the interrogation
room at the police station for the interview, which was
recorded.[FN3] At the beginning of the interview, the
detective advised Provencio he was not under arrest and that
he was free to leave at any time. The two then engaged in a
conversation that was not adversarial, nor which suggested
Provencio could not leave. This tone continued until the
detective left the room for a short time. Up to this point,
Provencio concedes he was not in custody for Miranda
purposes.

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[FN3: We have reviewed the recording of the
interview.]
When the detective returned to the room, he was
accompanied by a second detective who took a seat near the
back wall, away from the door. At this point the interrogating
detective accused Provencio of molesting Victim, with the
accompanying nodding of the head by Provencio. The issue
is whether the change in tenor and the presence of the
second detective converted this consensual interview into a
custodial interrogation. We conclude that Provencio was not
in custody.
Comparison of the facts in this case to those in People v.
Moore (2011) 51 Cal.4th 386 (Moore) explains our
conclusion. Moore's neighbor was murdered, and it appeared
to investigating officers that Moore had knowledge relevant to
the crime. Moore initially was interviewed in a patrol car
because his trailer did not have heat or electricity. Although
the detectives were armed and in uniform, and the doors to
the patrol car were closed and locked, the Supreme Court
concluded Moore was not detained. The Supreme Court
observed that Moore was asked to give a statement as a
percipient witness, and he readily agreed to do so. (Id. at p.
396.)
At the end of the interview in the patrol car, the investigating
officer requested Moore come to the police station to give a
detailed statement. Although somewhat reluctant, Moore
agreed to do so. He was driven to the police station in a
patrol car. During the ride Moore conversed with the police
officer driving him, and there was some discussion related to
the investigation, generally instigated by Moore. The
Supreme Court concluded Moore was not in custody during
the drive. “[The officer] did not interrogate defendant during
the ride; defendant was at the least an equal partner in
initiating and maintaining the conversation, which ranged
widely in subject matter. On arriving at the station, defendant
sought confirmation that the officers only wanted a statement
and would drive him home afterward. Receiving that
confirmation, he again agreed to give the statement. Nothing
indicates defendant thought he was not free to leave during
the ride to the station, and no reasonable person would have
thought so in these circumstances.” (Moore, supra, 51
Cal.4th at pp. 397–398.)
Once Moore arrived at the police station, he was placed in an
interview room to give a recorded statement. Moore was not
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handcuffed or otherwise restrained. Two detectives were in
the room when Moore was interviewed. Moore was informed
he was not under arrest, was free to leave, and was at the
station to give a statement as a percipient witness.
The detectives then began to ask Moore about the victim, her
family, and any other relevant information he may have had
about the murder. Both detectives joined in questioning
Moore. Eventually, the detectives asked Moore about his past
drug use and prior arrests. Moore was asked if he had
burglarized the victim's residence. Detectives then began
asking questions suggesting Moore was in the victim's
residence before the murder and might have direct
knowledge about the murder. Moore answered each of these
questions in the negative, but he admitted he carried a stick
with him as a walking aid.
Up to this point, it appears Moore had not been informed the
victim had been murdered. When he was informed, Moore
denied any involvement. The questioning continued along a
line suggesting Moore had murdered the victim, including
questions about a knife Moore carried with him. Detectives
asked for permission to search Moore's trailer to find the
knife, but Moore refused, stating he would retrieve the knife
for the detectives when he returned home.
Detectives continued to question Moore in a manner that
suggested they suspected him of murdering the victim,
perhaps when she surprised him while he was burglarizing
the residence. Moore denied the accusation and asked if he
was under arrest. The detectives stated he was not under
arrest. Moore asked for a ride home, but the detectives
continued questioning Moore about the murder. Moore
continued to deny any involvement in the murder and again
asked for a ride home. The detectives then instructed Moore
to return to his seat and asked if he would volunteer his
clothes to be checked for evidence. Moore agreed to this
proposition. Moore again asked for a ride home while waiting
for someone to collect his clothes. The detectives told Moore
they would give him a ride home after they collected his
clothes but continued to question him about his possible
involvement in the murder. Moore's clothes were collected
and his body photographed, with the detectives pointing out
scratches and bruises to be photographed. Moore again was
asked if he was involved in the victim's death and again he
denied any involvement. The detectives instructed Moore to
sit down and informed him he would be taken home as soon
as a patrol officer could be found to give him a ride.
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The questioning continued about various topics and then the
detectives left the room. One detective testified that at this
point he was informed that evidence from the crime scene
connected Moore to the murder, including property from the
victim's residence recovered from Moore's trailer. This
detective then returned to the interview room and asked
Moore if he would allow technicians to swab his hands.
Moore refused and demanded a ride home. He refused a
further request to stay at the station voluntarily. The detective
then told Moore he could not go home and informed him of
his constitutional rights pursuant to Miranda.
“We agree with the trial court that the sheriff's station
interview did not, in its entirety, constitute custodial
interrogation. As already discussed, defendant, the
last person known to have seen the victim and
obviously an important witness, was asked—and freely
agreed—to come to the station to give a statement. In
context, [the detective's] statement that ‘we have to do
[it] now’ rather than the next day clearly referred only
to the importance of getting information promptly and
did not convey a command that defendant go to the
station. On arriving at the station, defendant asked
whether, and was again assured, he was there only to
give a statement. Once in the interview room at the
station, [the detective] expressly told defendant he was
not under arrest and was free to leave. Defendant said
he understood. Defendant was not handcuffed or
otherwise restrained, and there was no evidence the
interview room door was locked against his leaving.
The interview was fairly long—one hour 45 minutes—
but not, as a whole, particularly intense or
confrontational. The interview focused, initially, on
defendant's encounter with [the victim], the missing
fence boards, and information defendant might have
had about the man he reported seeing in [the victim's]
backyard or others connected with [the victim's family].
For a substantial period, while defendant filled in his
previous statements with details, the questioning did
not convey any suspicion of defendant or skepticism
about his statements.
“After a while, to be sure, the detectives interjected
some more accusatory and skeptical questions, with
[one detective] asking defendant straight out, ‘Did you
burglarize the house?’ and, later, urging him to begin
being ‘honest with me.’ The detectives' questions

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about defendant's prior arrests, drug use, need for
money, and carrying of a knife and other weapons on
the day of the crimes conveyed their suspicion of
defendant's possible involvement. But Miranda
warnings are not required ‘simply because the
questioning takes place in the station house, or
because the questioned person is one whom the
police suspect.’ [Citation.] While the nature of the
police questioning is relevant to the custody question,
police expressions of suspicion, with no other
evidence of a restraint on the person's freedom of
movement, are not necessarily sufficient to convert
voluntary presence at an interview into custody.
[Citation.] At least until defendant first asked to be
taken home and his request was not granted, a
reasonable person in defendant's circumstances
would have believed, despite indications of police
skepticism, that he was not under arrest and was free
to terminate the interview and leave if he chose to do
so.” (Moore, supra, 51 Cal.4th at pp. 402–403.)
As Provencio concedes, nothing that occurred prior to the
break converted this voluntary interview into a custodial
interrogation. Undoubtedly, after the break, the detective's
accusatory statement (I know you molested Victim, I am just
trying to determine why) certainly conveyed to Provencio that
at a minimum he was a suspect. That statement, in and of
itself, however, did not convert the interview into a custodial
interrogation. Provencio voluntarily came to the police station
to be interviewed. He was told he could leave at any time and
there was no apparent restriction on his ability to do so, even
though he did not try to do so. He was not placed in
handcuffs, nor did the door appear to be locked.
Nor did the presence of the second detective convert the
interview into a custodial interrogation. The second detective
entered the interview room after the break, sat down, and did
not appear to participate in any aspect of the interview until
after Provencio requested an attorney. No reasonable person
immediately would believe he or she was in custody simply
because two detectives entered the room instead of one
detective.

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As stated in Moore, police expressions of suspicion without
other evidence of restraint on a person's freedom of
movement do not necessarily convert a voluntary interview
into a custodial interrogation. (Moore, supra, 51 Cal.4th at p.
403.) The complete absence of restraint on Provencio's
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movement, along with police assurances, would not cause a
reasonable person to believe he or she was under arrest and
could not terminate the interview and leave. Accordingly, as
in Moore, we conclude Provencio was not in custody and
Miranda warnings were not necessary.

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Provencio's second argument is that his nodding of the head
was part of his request for an attorney and therefore
inadmissible. We do not agree.

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We have reviewed the recording of the interview and
conclude there are only two possible interpretations of the
nods of the head by Provencio. One interpretation is an
acknowledgment that the charges were true as suggested by
the prosecution. The more likely interpretation is that
Provencio was acknowledging what the detective was saying,
not agreeing with the statements. Even though Provencio
requested an attorney shortly after nodding his head, we
cannot see any logical path that would lead to the conclusion
that the nods of the head were a request for counsel.

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Our analysis means the nodding of the head is admissible
and its import is for the jury to decide. We thus reject this
argument along with the first one and conclude the trial
court's ruling was correct.

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People v. Provencio, No. F065755, 2014 WL 1327984, at *3–7 (Cal. Ct. App. Apr. 3,
2014).
2.

Applicable Law

In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the United States Supreme
Court held that “[t]he prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege against
self-incrimination.” Thus, “suspects interrogated while in police custody must be told that
they have a right to remain silent, that anything they say may be used against them in
court, and that they are entitled to the presence of an attorney, either retained or
appointed, at the interrogation. Thompson v. Keohane, 516 U.S. 99, 107 (1995);
Miranda, 384 U.S. at 473-74. Once Miranda warnings have been given, “all questioning

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must cease” if a suspect makes a clear and unambiguous statement invoking his

2

constitutional rights. Smith v. Illinois, 469 U.S. 91, 98 (1984).

3

Miranda warnings are required only when a suspect interrogated by the police is

4

“in custody.” Thompson, 516 U.S. at 102. Custodial interrogation means “questioning

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initiated by law enforcement officers after a person has been taken into custody or

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otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at

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444. The relevant question is whether a “reasonable person [would] have felt he or she

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was not at liberty to terminate the interrogation and leave.” Thompson, 516 U.S. at 112.

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Resolving this question requires consideration of the following two inquiries: (1) what

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were the overall circumstances surrounding the interrogation; and (2) given those

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circumstances, would a reasonable person in the suspect's situation have felt free to

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terminate the interrogation and leave. J.D.B. v. North Carolina, 564 U.S. 261, 270

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(2011). This is an objective inquiry. Thus, “subjective views harbored by either the

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interrogating officers or the person being questioned are irrelevant.” Id. (internal

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quotation marks and citation omitted).

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In order for an accused’s statement, made during custodial interrogation, to be

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admissible at trial, police must have given the accused a Miranda warning. See Miranda,

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384 U.S. at 471. “If that condition is established, the court can proceed to consider

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whether there has been an express or implied waiver of Miranda rights.” Berghuis v.

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Thompkins, 560 U.S. 370, 388 (2010) (citation omitted).

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3.

Analysis

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The dispositive issue is whether Petitioner was in custody for purposes of Miranda

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at the time he nodded his head in response to the interviewing detective’s statements.

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The Court concludes that the state court’s determination that Petitioner was not in

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custody was not an unreasonable application of Supreme Court precedent. See

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Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

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First, there appears to be no dispute that Petitioner was not in custody at the

2

outset of the interview. Petitioner came voluntarily to the police station. He was not

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handcuffed or restrained in any way. He was expressly told that he was not under arrest

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and was free to leave. The interview proceeded conversationally for approximately one

5

hour. At no time during that period did the interviewing detective pressure Petitioner to

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continue the interview, nor did Petitioner express a desire to leave.1 See Oregon v.

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Mathiason, 429 U.S. 492, 435 (1977) (per curiam) (holding that suspect was not in

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custody where he had come voluntarily to police station, was informed he was not under

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arrest, and was allowed to leave at end of interview).

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Thus, the question becomes whether something changed when the interviewing

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detective re-entered the interview room with his colleague, such that a reasonable

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person would no longer have felt that he was free to leave. This inquiry presents a closer

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call. The officers arrested Petitioner immediately upon his termination of the interview,

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suggesting that Petitioner may no longer have been free to leave once both officers

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entered the room. However, the mere fact that the officers planned to arrest Petitioner

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does not trigger the need for Miranda warnings. Oregon v. Mathiason, 429 U.S. 492, 495

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(1977); see also Berkemer v. McCarty, 468 U.S. 420, 442 (1984) (“A policeman's

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unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at

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a particular time.”) Rather, “the only relevant inquiry is how a reasonable man in the

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suspect's position would have understood his situation.” Berkemer, 468 U.S. at 442.

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Here, the detective’s accusations against Petitioner are relevant to the custody

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inquiry, but only to the extent they would affect how a reasonable person in Petitioner’s

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position would gauge the restraint on his freedom to leave:

24

Even a clear statement from an officer that the person under
interrogation is a prime suspect is not, in itself, dispositive of
the custody issue, for some suspects are free to come and go
until the police decide to make an arrest. The weight and

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The Court has reviewed the videotaped interview, which was lodged with the Court on September 22,
2017.

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pertinence of any communications regarding the officer's
degree of suspicion will depend upon the facts and
circumstances of the particular case. In sum, an officer's
views concerning the nature of an interrogation, or beliefs
concerning the potential culpability of the individual being
questioned, may be one among many factors that bear upon
the assessment whether that individual was in custody, but
only if the officer's views or beliefs were somehow manifested
to the individual under interrogation and would have affected
how a reasonable person in that position would perceive his
or her freedom to leave.
Stansbury v. California, 511 U.S. 318, 325 (1994).
The Court of Appeal’s determination that Petitioner was not in custody at the time
he nodded his head was not objectively unreasonable in light of the overall
circumstances surrounding the interrogation. Again, Petitioner clearly was informed at
the beginning of the interview that he was free to leave and, while that fact was not
reconfirmed when the detectives re-entered the room, neither was it contradicted.
Neither detective blocked the door or attempted to physically or verbally dissuade
Petitioner from exiting. Petitioner was not handcuffed or otherwise restrained. The tenor
of the interview remained conversational despite the accusations. Furthermore, the
remainder of the interview was brief. In effect, it ended immediately once Petitioner was
informed of the accusations against him. In light of all these circumstances, a fairminded
jurist could conclude that Petitioner was not in custody at the time he nodded his head.
The state court’s determination that the nodding need not be suppressed pursuant to
Miranda was not objectively unreasonable.
Furthermore, even assuming Petitioner was in custody and the nodding should be
suppressed, any error in admitting this evidence did not have a “substantial and injurious
effect or influence in determining the jury's verdict.” Brecht, 507 U.S. at 629. Having
reviewed the video interview, the Court agrees with the Court of Appeals that it would be
a stretch to construe Petitioner’s nodding as an admission of guilt, despite the
prosecutor’s argument in this regard. At the very least, a fariminded jurist could conclude

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that Petitioner “was acknowledging what the detective was saying, not agreeing with the

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statements.”

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Based on the foregoing, Petitioner is not entitled to relief on this claim.

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B.

5

Petitioner claims that the jury was given conflicting instructions on the intent

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Claim Two: Conflicting Instructions on Intent

required to find Petitioner guilty of the offense of continuous sexual abuse of a child.
1.

State Court Decision

The Fifth District Court of Appeal rejected Petitioner’s claim as follows:
Provencio was charged with continuous sexual abuse of a
child, in violation of section 288.5, subdivision (a). The trial
court instructed the jury on this count pursuant to CALCRIM
No. 1120. This instruction informed the jury that to convict
Provencio of this offense, the jury must find (1) Provencio
lived with Victim, (2) he engaged in three or more acts of
substantial sexual conduct or lewd and lascivious conduct
with Victim, (3) three or more months passed between the
first and last acts, and (4) Victim was under the age of 14 at
the time of the acts. The instruction also defined “substantial
sexual conduct” and “lewd and lascivious conduct” for the
jury.

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Provencio's argument focuses on the element of intent
required to commit a lewd and lascivious act. CALCRIM No.
1120 informed the jury that “Lewd or lascivious conduct is
any willful touching of a child accomplished with the intent to
sexually arouse the perpetrator or the child.” (Italics added.)
The trial court also instructed the jury with CALCRIM No. 252.
The relevant portion of this instruction informed the jury that
continuous sexual abuse of a child required a general
criminal intent and also informed the jury that to find
Provencio guilty of this crime, he “must not only commit the
prohibited act, but must do so with wrongful intent. A person
acts with wrongful intent when he or she intentionally does a
prohibited act; however, it is not required that he or she
intend to break the law. The act required is explained in the
instruction for that crime.” Provencio asserts these two
instructions conflict on the issue of intent. We disagree.
The error in Provencio's argument is that he confuses the
intent required to violate section 288.5 with the intent required
for one of the elements the jury must find exists to convict a
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defendant of violating section 288.5. To violate section 288.5,
a defendant must commit each of the elements as explained
in CALCRIM No. 1120: (1) the defendant must live in the
same home as the victim, (2) the defendant must engage in
three or more acts of substantial sexual conduct with the
victim or lewd and lascivious acts with the victim, (3) the
length of time between the first act and the last act must be
three or more months, and (4) the victim must be under the
age of 14 when the acts occur. The intent required to violate
each of these elements is referred to as general intent, i.e.,
the intent to commit the acts without any further intent
required.
The second element of the crime required the jury to find
Provencio committed three or more lewd and lascivious acts
with Victim or three or more acts of substantial sexual
conduct with Victim. If the jury focused on whether Provencio
committed three or more lewd and lascivious acts with Victim,
the jury would have to find that those acts were committed
with the specific intent to arouse either Provencio or Victim
sexually. (People v. Whitham (1995) 38 Cal.App.4th 1282,
1293.) On the other hand, if the jury focused on substantial
sexual conduct when considering the second element of the
crime, there was no requirement that the conduct be
committed with the specific intent to arouse either Provencio
or Victim sexually. The mere act of oral copulation, sodomy,
insertion of an object in the vagina of either the perpetrator or
the victim, or masturbation of either the victim or the
perpetrator constitutes substantial sexual conduct within the
meaning of section 288.5. (Whitham, at p. 1293.) The
instructions provided to the jury adequately explained these
concepts. There was no error.
People v. Provencio, No. F065755, 2014 WL 1327984, at *7 (Cal. Ct. App. Apr. 3, 2014)
3.

Analysis

The California Court of Appeal found that the trial court properly instructed the jury
on the elements of the offense, and that Petitioner’s argument was based on an
incorrect understanding of the underlying law. This determination is a matter of state
substantive law that does not provide a basis for federal habeas relief. Estelle v.
McGuire, 502 U.S. 62, 71-72 (1991) (holding that a challenge to a jury instruction solely
as an error under state law does not state a claim cognizable in federal habeas corpus

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proceedings); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (alleged error in

2

interpretation or application of state law not a basis for federal habeas relief).

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Instead, a federal court's inquiry on habeas review is limited to whether the

4

challenged jury instruction “violated some right which was guaranteed to the defendant

5

by the Fourteenth Amendment.” Cupp v. Naughten, 414 U.S. 141, 146 (1973). “[N]ot

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every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a

7

due process violation.” Id. On federal review, the pertinent question is whether the

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challenged instruction “so infused the trial with unfairness as to deny due process of

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law.” Estelle, 502 U.S. at 75. Relevant to this inquiry is “‘whether there is a reasonable

10

likelihood that the jury has applied the challenged instruction in a way’ that violates the

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Constitution.” Id. (quoting Boyde v. California, 494 U.S. 370, 380 (1990)).

12

Here, the state court determined that the instructions properly instructed the jury

13

on the substantive elements of state criminal law. There is no basis to conclude that the

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jury applied the instructions in a way that violated the constitution. Petitioner is not

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entitled to relief on this claim.

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C.

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Petitioner styles this claim as a challenge to the sufficiency of the evidence

18

regarding the bodily harm enhancement. However, upon closer inspection, the petition

19

appears to ask that the Court define the degree of injury required to constitute “bodily

20

harm” under California law, or to interpret “bodily harm” more favorably than did the

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Court of Appeal.

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Claim Three: Insufficient Evidence

1.

State Court Decision

The Fifth District Court of Appeal rejected this claim as follows:

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Standard of Review

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To assess the evidence's sufficiency, we review the whole
record to determine whether any rational trier of fact could
have found the essential elements of the crime or special
circumstances beyond a reasonable doubt. (People v. Maury
(2003) 30 Cal.4th 342, 403.) The record must disclose

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substantial evidence to support the verdict, i.e., evidence that
is reasonable, credible, and of solid value, such that a
reasonable trier of fact could find the defendant guilty beyond
a reasonable doubt. (Id. at p. 396.) In applying this test, we
review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the
existence of every fact the jury reasonably could have
deduced from the evidence. (People v. Boyer (2006) 38
Cal.4th 412, 480.) “Conflicts and even testimony [that] is
subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or
falsity of the facts upon which a determination depends.
[Citation.] We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence. [Citation.]” (Maury,
at p. 403.) A reversal for insufficient evidence “is unwarranted
unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support’ ” the jury's verdict.
(People v. Bolin (1998) 18 Cal.4th 297, 331.)

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Bodily Harm Enhancement
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The jury found true an allegation that Provencio personally
inflicted bodily harm on Victim within the meaning of section
667.61. This section provides that a defendant who commits
a sex offense that is listed in subdivision (c) of the section will
be subject to a sentence of 25 years to life if specific
circumstances listed in subdivisions (d) and (e) are found to
be true. Subdivision (a) of the section provides that for the
enhanced sentence to apply, the jury must find true either
one or more of the circumstances listed in subdivision (d) or
two or more of the circumstances listed in subdivision (e).
Continuous sexual abuse of a child is one of the listed sex
offenses (§ 667.61, subd. (c)(9)), and personal infliction of
bodily harm on a victim under 14 years of age is one of the
circumstances listed in subdivision (d) (§ 667.61, subd.
(d)(7)).
“Bodily harm” is defined in subdivision (k) of section 667.61
as “any substantial physical injury resulting from the use of
force that is more than the force necessary to commit an
offense specified in subdivision (c).” Provencio argues the
jury's finding that he inflicted bodily harm on Victim was not
supported by substantial evidence, and thus the enhanced
sentence must be vacated and he must be sentenced
pursuant to the provisions of section 288.5.

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The testimony related to the injuries sustained by Victim was
limited to that of Victim and Sager, the nurse who conducted
the forensic examination. Victim testified that when Provencio
sodomized her, it was painful. She had pain when she walked
for a few days, and there was some bleeding after the event.
She also testified that on one occasion she attempted to
escape Provencio when he was molesting her, but he
grabbed her by the arms and threw her to the bed. This event
left bruises on her arms.
Sager testified she found some bruising on Victim during her
examination, but she could not determine if it was related to
an assault or not. She also noted tenderness and a laceration
in the vaginal area that could be related to a sexual assault.
Similarly, she noted redness and tenderness in the anal area
that could be related to a sexual assault. Finally, she
observed scarring to the perineum, indicating some type of
trauma that could be related to a sexual assault.
While this testimony was not overwhelming, we conclude it
was sufficient to support the jury's finding that Provencio
inflicted substantial physical injury on Victim. While there are
no cases directly on point, we find guidance in section
12022.7. This section, in part, enhances a sentence if the
defendant “inflicts great bodily injury on any person other
than an accomplice” during the commission of a felony. (Id.,
subd. (a).) The term “great bodily injury” is defined by the
statute as “a significant or substantial physical injury.” (Id.,
subd. (f).) Thus, the Legislature had defined “great bodily
injury” in section 12022.7 using essentially the same term as
it used to define “bodily harm” in section 667.61. Accordingly,
we find instructive those cases that have interpreted the term
“great bodily injury” as used in section 12022.7.
In People v. Washington (2012) 210 Cal.App.4th 1042, 1047,
the court noted that a finding of great bodily injury will be
sustained when there is “some physical pain or damage,
such as lacerations, bruises, or abrasions.” The Washington
court cited People v. Jaramillo (1979) 98 Cal.App.3d 830,
836–837 (Jaramillo) and People v. Sanchez (1982) 131
Cal.App.3d 718, 733 (Sanchez) to support its statement.
In Jaramillo the defendant struck her young daughters with a
wooden stick 18 to 20 inches long and about one inch in
diameter. One daughter “suffered multiple contusions over
various portions of her body and the injuries caused swelling
and left severe discoloration on parts of her body. The
injuries were visible the day after infliction to at least two lay
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persons.... Further, there was evidence that [the daughter]
suffered pain as a result of her injuries because a day later
she had a ‘look of anguish’ on her face and she flinched or
turned away from a simple guiding touch on the shoulder ...
and [the daughter stated] ‘it hurt’ as [she] walked to the
nurse's office.” (Jaramillo, supra, 98 Cal.App.3d at p. 836.)
Concluding the issue “might be close,” the appellate court
concluded there were sufficient facts to support the finding.
(Ibid.)
In Sanchez, this court described the victim's injuries as
“multiple abrasions and lacerations. She had one long
scratch diagonally across her back and numerous bruises
and small lacerations on her neck. She had a serious
swelling and bruising of her right eye and a markedly swollen
left cheek.” (Sanchez, supra, 131 Cal.App.3d at p. 733.)
Relying primarily on Jaramillo, we held this evidence was
sufficient to support a great bodily injury enhancement.
Additional guidance is found in two Supreme Court cases. In
People v. Escobar (1992) 3 Cal.4th 740, the defendant raped
the victim, causing her to suffer “multiple abrasions to her
thighs, knees, hips and elbows. Several photographs
introduced at trial revealed raw and bloody asphalt burns and
bruises over various parts of her body. [The victim] testified
that her neck hurt so badly after the attack that she could not
move it. Vaginal pain prevented her from walking without
impairment for more than a week. A police employee testified
that when [the victim] reported for an interview six days after
the assault, she appeared injured, walked with a very heavy
limp, and required the assistance of two friends, one on each
side, to help her.” (Id. at p. 744.) The Supreme Court, in
overruling one of its earlier cases,[FN4] held the evidence of
“extensive bruises and abrasions over the victim's legs,
knees and elbows, injury to her neck and soreness in her
vaginal area of such severity that it significantly impaired her
ability to walk” was sufficient evidence to sustain the great
bodily injury finding. (Escobar, at p. 750.)
[FN4: People v. Caudillo (1978) 21 Cal.3d 562.]
In People v. Cross (2008) 45 Cal.4th 58, the defendant had
repeated sexual intercourse with his stepdaughter, resulting
in her becoming pregnant. The defendant encouraged the
victim to get an abortion, which she did with the defendant's
assistance. The Supreme Court explained that “Proof that a
victim's bodily injury is ‘great’—that is, significant or
substantial within the meaning of section 12022.7—is
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6
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commonly established by evidence of the severity of the
victim's physical injury, the resulting pain, or the medical care
required to treat or repair the injury. [Citations.] Thus, when
victims of unlawful sexual conduct experience physical injury
and accompanying pain beyond that ‘ordinarily experienced’
by victims of like crimes [citation], such additional, ‘gratuitous
injury’ will support a finding of great bodily injury [citation].”
(Id. at p. 66.) The Supreme Court held the evidence that the
13–year–old victim became pregnant was sufficient evidence
to support the great bodily injury finding. (Ibid.)
These cases convince us that Victim suffered bodily harm
within the meaning of section 667.61. Victim testified she
suffered bruises on her arms as a result of Provencio forcing
her to the bed so he could sodomize her. She also described
rectal bleeding and pain that lasted for a few days as a result
of Provencio sodomizing her. While the description of these
injuries was sparse, the bleeding and excessive pain
described by Victim is comparable to the injuries suffered by
the victim in Escobar. When combined with the bruising
suffered by Victim, we conclude there was a bare minimum of
evidence sufficient to support the jury's verdict.

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15
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Provencio, 2014 WL 1327984, at *8-10.
2.

Analysis

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To the extent Petitioner disputes the Court of Appeal’s interpretation of

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“substantial physical injury,” his claim presents a question of state law that is not subject

19

to federal review. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (“[I]t is only

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noncompliance with federal law that renders a State's criminal judgment susceptible to

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collateral attack in the federal courts.”); Estelle v. McGuire, 502 U.S. 62, 71-72 (1991)

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(“[I]t is not the province of a federal habeas court to reexamine state-court

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determinations on state-law questions.”); Middleton, 768 F.2d at 1085 (alleged error in

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interpretation or application of state law not a basis for federal habeas relief).

25

To the extent Petitioner argues that the evidence was insufficient even under the

26

standard articulated by the Court of Appeal, his claim is reviewable. The Due Process

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Clause “protects the accused against conviction except upon proof beyond a reasonable

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doubt of every fact necessary to constitute the crime with which he is charged.” In re

2

Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a conviction

3

if, “after viewing the evidence in the light most favorable to the prosecution, any rational

4

trier of fact could have found the essential elements of the crime beyond a reasonable

5

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “[T]he dispositive question under

6

Jackson is ‘whether the record evidence could reasonably support a finding of guilt

7

beyond a reasonable doubt.’” Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004)

8

(quoting Jackson, 443 U.S. at 318). Put another way, “a reviewing court may set aside

9

the jury's verdict on the ground of insufficient evidence only if no rational trier of fact

10

could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1 (2011).

11

In conducting federal habeas review of a claim of insufficient evidence, “all

12

evidence must be considered in the light most favorable to the prosecution.” Ngo v.

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Giurbino, 651 F.3d 1112, 1115 (9th Cir. 2011). “Jackson leaves juries broad discretion in

14

deciding what inferences to draw from the evidence presented at trial,” and it requires

15

only that they draw “'reasonable inferences from basic facts to ultimate facts.”' Coleman

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v. Johnson, 132 S.Ct. 2060, 2064 (2012) (citation omitted). “'Circumstantial evidence

17

and inferences drawn from it may be sufficient to sustain a conviction.”' Walters v.

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Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (citation omitted).

19

“A petitioner for a federal writ of habeas corpus faces a heavy burden when

20

challenging the sufficiency of the evidence used to obtain a state conviction on federal

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due process grounds.” Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). In order to

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grant relief, the federal habeas court must find that the decision of the state court

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rejecting an insufficiency of the evidence claim reflected an objectively unreasonable

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application of Jackson and Winship to the facts of the case. Ngo, 651 F.3d at 1115; Juan

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H., 408 F.3d at 1275 & n.13. Thus, when a federal habeas court assesses a sufficiency

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of the evidence challenge to a state court conviction under AEDPA, “there is a double

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dose of deference that can rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957, 964

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(9th Cir. 2011). The federal habeas court determines sufficiency of the evidence in

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reference to the substantive elements of the criminal offense as defined by state law.

3

Jackson, 443 U.S. at 324 n.16; Chein, 373 F.3d at 983.

4

Here, the state court determined that “bodily harm” requires “some physical pain

5

or damage, such as lacerations, bruises, or abrasions.” Provencio, 2014 WL 1327984, at

6

*9. The complainant testified that she suffered pain for several days, bleeding, and

7

bruising as a result of the abuse. This evidence is sufficient to support a finding of guilt

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beyond a reasonable doubt. Therefore, the state court’s rejection of the claim was not

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objectively unreasonable. Petitioner is not entitled to relief on this claim.

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VI.

Conclusion and Recommendation
Based on the foregoing, it is HEREBY RECOMMENDED that the petition for writ

of habeas corpus be DENIED.

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The findings and recommendation are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

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thirty (30) days after being served with the findings and recommendation, any party may

16

file written objections with the Court and serve a copy on all parties. Such a document

17

should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.”

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Any reply to the objections shall be served and filed within fourteen (14) days after

19

service of the objections. The parties are advised that failure to file objections within the

20

specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772

21

F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.

22

1991)).

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IT IS SO ORDERED.
Dated:

October 31, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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