Zapata v. Frauenheim

Filing 40

FINDINGS and RECOMMENDATIONS Recommending Denial of 21 Second Amended Petition for Writ of Habeas Corpus signed by Magistrate Judge Erica P. Grosjean on 10/30/2018. Referred to Judge Lawrence J. O'Neill. Objections to F&R due within Thirty (30) Days. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAMON PEREZ ZAPATA,
Petitioner,

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FINDINGS AND RECOMMENDATION
RECOMMENDING DENIAL OF SECOND
AMENDED PETITION FOR WRIT OF
HABEAS CORPUS

v.

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Case No. 1:16-cv-01260-LJO-EPG-HC

S. FRAUENHEIM,
(ECF No. 21)
Respondent.

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Petitioner Ramon Perez Zapata is a state prisoner proceeding pro se with a petition for

18 writ of habeas corpus pursuant to 28 U.S.C. § 2254. In the second amended petition, Petitioner
19 raises the following claims for relief: (1) constructive denial of assistance of counsel; (2)
20 unconstitutional restriction of cross-examination; (3) erroneous admission of Petitioner’s coerced
21 confession; (4) insufficient evidence to support guilty verdicts; and (5) ineffective assistance of
22 counsel.
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For the reasons discussed herein, the undersigned recommends denial of the second

24 amended petition for writ of habeas corpus.
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I.

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BACKGROUND

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On July 15, 2013, Petitioner was convicted by a jury in the Madera County Superior

28 Court of: digital penetration of a child ten years or younger (count 1); attempted sexual

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1 intercourse with a child ten years or younger (count 2); engaging in oral copulation with a child
2 ten years or younger (count 3); committing a lewd and lascivious act upon a child under fourteen
3 years (count 4). (CT1 155–161). Petitioner was sentenced to an aggregate term of nine years
4 (counts 2, 4) plus two consecutive terms of fifteen years to life (counts 1, 3). (15 RT2 4209–10).
5 On November 10, 2015, the California Court of Appeal, Fifth Appellate District remanded the
6 matter to the trial court to correct clerical errors in the abstract of judgment, but otherwise
7 affirmed the judgment. People v. Zapata, No. F068199, 2015 WL 6945730, at *5 (Cal. Ct. App.
8 Nov. 10, 2015). Petitioner’s petition for review, which only raised a Marsden claim, was denied
9 by the California Supreme Court on January 13, 2016. (LDs3 4, 5).
On August 25, 2016, Petitioner commenced the instant proceedings by filing a federal

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11 habeas petition, which alleged that: (1) the trial court failed to undertake the requisite Marsden
12 inquiry; (2) the trial court erroneously restricted cross-examination; and (3) Petitioner was
13 convicted on the basis of an unlawful confession. (ECF No. 1). As claims 2 and 3 were
14 unexhausted, the Court granted Petitioner’s request to stay the proceedings pursuant to Kelly v.
15 Small, 315 F.3d 1063 (9th Cir. 2002). (ECF No. 9). Thereafter, Petitioner filed the first amended
16 petition that deleted the two unexhausted claims, and the Court stayed this matter on October 25,
17 2016. (ECF Nos. 11, 14).
Subsequently, Petitioner filed six state habeas petitions, which were all denied. (LDs 6–

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19 17). On October 11, 2017, the Court granted Petitioner leave to file the instant second amended
20 petition and lifted the stay. (ECF Nos. 21, 23). Respondent filed an answer, and Petitioner filed a
21 traverse. (ECF Nos. 34, 38).
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II.

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STATEMENT OF FACTS
At trial, the victim testified that she lived in a house with: her father; her sister Carmen

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25 Cervantes; Petitioner, who was Ms. Cervantes’s husband; and her nephew, the son of Ms.
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“CT” refers to the Clerk’s Transcript on Appeal, consisting of 272 pages, lodged by Respondent on March 9, 2018.

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“RT” refers to the Reporter’s Transcript on Appeal lodged by Respondent on March 9, 2018. (ECF No. 36).
“LD” refers to the documents lodged by Respondent on March 9, 2018. (ECF No. 36).

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1 Cervantes and Petitioner. (5 RT 1229–31). The victim testified that Petitioner began sexually
2 abusing her when she was nine or ten years old. (5 RT 1231). The victim testified that Petitioner
3 touched her breast and vagina, put his finger inside her vagina, attempted to have sexual
4 intercourse with her, rubbed his penis against her thigh and vagina, licked her vagina, and put her
5 hand on his penis. (5 RT 1232–46, 1251, 1257–59, 1286). These incidents occurred mainly at
6 night while Ms. Cervantes slept, most often at the computer (which was in the kitchen next to
7 Ms. Cervantes’s bedroom and at some point was moved into the bedroom) and once on the
8 couch in the bedroom. (5 RT 1262–66, 1268, 1278, 1287). Petitioner said something about doing
9 these things to help his marriage, but the victim did not know what he meant. (5 RT 1254–55).
10 When the victim was approximately eleven years old, she eventually told her sister about what
11 Petitioner did to her because she thought Petitioner would not stop. (5 RT 1243, 1260, 1268).
On August 25, 2011, a nurse practitioner examined the victim, found no physical injuries

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13 or abnormalities on her body, determined that the victim had a normal hymen that had not been
14 lacerated, cut, or bruised, and collected two breast swabs. (6 RT 1506–07, 1512–13, 1520–22). A
15 small amount of male DNA was found on one of the breast swabs, and Petitioner was eliminated
16 as a possible contributor to the male DNA. (5 RT 1308–10, 1313; 6 RT 1542–43, 1545, 1549).
17 The DNA expert explained that DNA can transfer in numerous ways and that the third-party
18 DNA could have ended up on victim as a result of innocent, non-criminal activity. (6 RT 1545–
19 49, 1555–57).
Petitioner was interviewed by Sergeant Zachary Zamudio of the Madera County Sheriff’s

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21 Department. (6 RT 1558–60). Sergeant Zamudio does not speak Spanish, Petitioner spoke
22 Spanish during the interview, and they relied on an interpreter. (8 RT 2168). The interview was
23 recorded, played to the jury, and introduced into evidence. (6 RT 1559–62; CT 130). Petitioner
24 denied penetrating the victim with his fingers or penis, but admitted to touching and sucking the
25 victim’s breasts, putting his mouth on the victim’s vagina, putting his fingers and penis on the
26 victim’s vagina, and having the victim touch his penis. (Supp. CT4 32–59). Petitioner told the
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“Supp. CT” refers to the 1st Supplemental Clerk’s Transcript on Appeal, consisting of 68 pages, lodged by

28 Respondent on March 9, 2018. (ECF No. 36).

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1 victim that she was helping his marriage and stated in the interview that what they were doing
2 excited him so he could make love to his wife. (Supp. CT 26, 52). Petitioner told Sergeant
3 Zamudio that he lied at beginning of the interview because he was embarrassed and that he knew
4 he would go to jail for his actions. (Supp. CT 60–61). Petitioner claimed to have asked the victim
5 for forgiveness, to which the victim responded, “Yeah, okay.” (Supp. CT 59–60). In dictating an
6 apology letter for the victim, Petitioner stated that he was very sorry, felt very bad, and had to
7 pay for what he did. (Supp. CT 62–63).
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In Petitioner’s defense, Carmen Cervantes testified that Petitioner and the victim would

9 play a lot, “chasing each other, playing tag, playing video games,” watching television and
10 movies, and “horsing around.” (10 RT 2715–16, 2726). Ms. Cervantes never saw Petitioner
11 touch the victim inappropriately and did not believe that Petitioner had a “perverse sexual
12 orientation towards young children” or a “proclivity to sexually assault children.” (10 RT 2717,
13 2720, 2721, 2726). Ms. Cervantes testified that her opinion would change if she knew that
14 Petitioner admitted to sexual acts with the victim. (10 RT 726–27).
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The California Court of Appeal set forth the facts applicable to the Marsden claim as

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1. Appellant’s first letter to the trial judge.
In May 2013, appellant handwrote a letter in Spanish to the trial judge. The letter
was rewritten in English and was filed with the court on June 3, 2013, a little over
two weeks before trial started. The English version of the letter, complete with
numerous misspellings and grammatical mistakes, reads as follows:
“To Judge Dale Blea
“Thank you for reading this letter. [A]nd light of the lack of information in
my case I beg that you hear my petition, being that this will help you judge
me with justly, for you to have [knowledge] of detective Zamudio short
commings [sic].

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“And record can be established about him so he no longer lies,
premeditatively.

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“ ‘The filed report is incomplete[.]’

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“A statement that wasn’t recorded exist which I can demonstrate that did
happen on 08/24/11 at approximately 5:00 p.m. [H]is phone record will show
when he calls the interpreter and where I manifest the intervenie [sic] of
another person, waiting for them to detain[ ] him for having com[m]itted a
crime at Cesar Chavez School. [D]uring this part of my statement I proved the
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motives of why the pseudo victim gave a statement against me. I also proved
the negligence and lack of responsibility on behalf of the detective who
deliberately withheld the key statement for my defense.
“ ‘I’m asking for a copy of the medical treatment’ for [¶] Within the jail I have
been receiving treatment for contagious venereal disease, but they have told
me that I need a court order to obtain my medical record. [W]ith this copy I
can demonstrate and prove that I never had any type of sexual contact ever
with the victim.
“I do this personally because I consider that I have not received the necessary
attention by my attorney and they haven’t investigated what is necessary.

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“I hope that it is possible that all information can be sent to the attorney in my
case.

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“Awaiting your comphrention [sic] and attention to this matter.

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“Thank you.”
On June 3, 2013, a court proceeding occurred before Judge Blea. Trial was
confirmed for June 18, 2013. No reference was made to appellant’s letter and no
action was taken regarding the letter.
On June 17, 2013, the attorneys confirmed jury trial for the following day. No
reference or action was taken regarding appellant’s letter.
2. Appellant’s second letter to the trial judge.
Following his convictions, appellant handwrote a letter in Spanish dated July 30,
2013. The letter was rewritten in English and typed. The trial court received the
letter on or about August 7, 2013, almost two months before the sentencing
hearing occurred. The letter reads as follows:
“Re: Application for Appeal
“We all know that the minor was found to be normal physically and that the
DNA found in her belongs to a different person. Plus, the audio on my
statement was shortened, fixed and incomplete. It was hiding the truth behind
the motive and the date of when this problem started. The proof that was
presented was solicited by the DA but the defense attorney presented was
eliminated in my defense. This fabricated a case where I would lose and they
conspired so that all my rights were trampled over. I don’t know if you were
ignoring this or if you had knowledge of it. I also do not know if I should
consult:
“Sacramento court of appeals
“Amnesty International
“Human Rights
“None the less, I’d like to trust in your good judgment and rectitude. And now
I ask you: Do I have the right to ask for an appeal and begin anew?”

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3. Appellant’s letter to the probation officer.
On or about August 20, 2013, appellant handwrote a letter in Spanish addressed to
the probation officer. The letter was rewritten in English and typed. Both versions
were attached to the September 5, 2013, probation report. The English version
reads as follows:
“In the beginning of 2011 [the victim] was obligated to tattoo on her hand ‘N
13’ to be a member of a criminal street gang at Cesar Chavez Elementary
School. After two to three months she came and asked my wife for help
because regarding bleeding from her intimate parts. At that time we thought
she was beginning menstruation. However, the following month she did not
menstruate. Her attitude towards me continued and she continued to be
involved in the criminal street gang. I began to think that someone had harmed
her and I began to ask her. I looked for additional tattoos on her because in the
past she told me that she was going to get another tattoo. She always told me
it was none of my business. I continued trying to investigate to know for
myself. I know I went about it the wrong way and in the process I made the
mistake of touching her. I made it very clear and sincere that I never had any
type of penetration or oral sex, or anything else that they accused me of. I
hope that you take into consideration the way this [c]ase was orchestrated,
altering and editing my declaration. Furthermore, they ignored the crime
committed at the school involving her in order to distort the truth of the
problem. I feel laughed at and discriminated against by District Attorney Sally
Moreno and Sgt. Zackary Zamudio who are ... capable of walking all over my
rights by finding a way to slander me and hide shamelessly the truth. I don’t
feel justice was served the deal in my case and the course they took with my
case by influencing the jury to present a guilty verdict against me by
eliminating the proof that my attorney provided in my defense such as: The
girl is a virgin, [t]he DNA found on the girls [sic] breast did not belong to me
but, someone else, the original charges were changed adopting the past results,
the judge allowed jurors to disclose of the process on Facebook, my recorded
declaration was heard shamelessly edited, hiding the dates and the motive of
the problem, Sgt. Zamudio acted negligently as he did not investigate the
other person involved that I mentioned, a witness in my defense was
interviewed and declaration regarding the girls tattoo, nevertheless they
decided not to touch the subject and present it to the jurors.”

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On October 3, 2013, the parties met in court for sentencing. The trial court
indicated it had read and considered both the probation officer’s report and
appellant’s letter. Later that day, as the court was about to pronounce sentence,
appellant’s defense counsel indicated that appellant wished to address the court.
Appellant said the following:
“Okay. Despite the result, I continue to think that—that anybody—that any
person must take responsibility for their errors. But ... definitely the result of
this trial ... is indicative of abusive power and actions, corrupt actions on
behalf of the District Attorney.
“All of us know that the minor, she’s still a virgin, and that the DNA—that
they were found that were—that was found on her breasts belonged to
somebody else and that is not mine. And I shouldn’t—we know that—we
know that the District Attorney cut and edited my statement in order to cover
up the date and the motive where this problem started. Now I failed—I feel
discriminated again in front of—on behalf of the District Attorney, and they
are making me pay for something that never happened.

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“I just ask that Your Honor pay attention to this and to learn how to do things
at a later date in a better fashion and based on truth. That’s all, your Honor.”
After a short irrelevant exchange, the court asked appellant if he had anything
else. The following exchange occurred:
“[APPELLANT]: Well, I still have just the question, the motive, why this
whole problem started, it is founded on—in a crime that was perpetrated at the
Cesar Chavez school when the girl—they had the tattoo placed on her with the
No. 13 and—and this instance, I have actually made a report of it in at least
ten different spots, ten different places. I have sent letters for somebody to
stop that criminal activity at that school, because I know that the influence of
that criminal activity can affect how my son is raised. And, to date, I still
don’t know if that action is ... something just in passing in this community, or
if, in reality, I’m just exaggerating. I just don’t know.
“THE COURT: All right. Thank you, sir.”

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The trial court noted that the issues involved at the school were not the subject of
the sentencing hearing and proceeded to pronounce sentence.

12 Zapata, 2015 WL 6945730, at *1–3.
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III.

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STANDARD OF REVIEW

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Relief by way of a petition for writ of habeas corpus extends to a person in custody

16 pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws
17 or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor,
18 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed
19 by the United States Constitution. The challenged convictions arise out of the Madera County
20 Superior Court, which is located within the Eastern District of California. 28 U.S.C. § 2254(a);
21 28 U.S.C. § 2241(d).
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On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act

23 of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its
24 enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th
25 Cir. 1997) (en banc). The instant petition was filed after the enactment of AEDPA and is
26 therefore governed by its provisions.
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Under AEDPA, relitigation of any claim adjudicated on the merits in state court is barred

28 unless a petitioner can show that the state court’s adjudication of his 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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5 28 U.S.C. § 2254(d); Davis v. Ayala, 135 S. Ct. 2187, 2198 (2015); Harrington v. Richter, 562
6 U.S. 86, 97–98 (2011); Williams, 529 U.S. at 413. Thus, if a petitioner’s claim has been
7 “adjudicated on the merits” in state court, “AEDPA’s highly deferential standards” apply. Ayala,
8 135 S. Ct. at 2198. However, if the state court did not reach the merits of the claim, the claim is
9 reviewed de novo. Cone v. Bell, 556 U.S. 449, 472 (2009).
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In ascertaining what is “clearly established Federal law,” this Court must look to the

11 “holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the
12 relevant state-court decision.” Williams, 529 U.S. at 412. In addition, the Supreme Court
13 decision must “‘squarely address[] the issue in th[e] case’ or establish a legal principle that
14 ‘clearly extend[s]’ to a new context to the extent required by the Supreme Court in . . . recent
15 decisions”; otherwise, there is no clearly established Federal law for purposes of review under
16 AEDPA and the Court must defer to the state court’s decision. Moses v. Payne, 555 F.3d 742,
17 754 (9th Cir. 2008) (alterations in original) (quoting Wright v. Van Patten, 552 U.S. 120, 125,
18 123 (2008)).
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If the Court determines there is clearly established Federal law governing the issue, the

20 Court then must consider whether the state court’s decision was “contrary to, or involved an
21 unreasonable application of, [the] clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A
22 state court decision is “contrary to” clearly established Supreme Court precedent if it “arrives at
23 a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state
24 court decides a case differently than [the Supreme Court] has on a set of materially
25 indistinguishable facts.” Williams, 529 U.S. at 413. A state court decision involves “an
26 unreasonable application of[] clearly established Federal law” if “there is no possibility
27 fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme
28 Court’s] precedents.” Richter, 562 U.S. at 102. That is, a petitioner “must show that the state

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1 court’s ruling on the claim being presented in federal court was so lacking in justification that
2 there was an error well understood and comprehended in existing law beyond any possibility for
3 fairminded disagreement.” Id. at 103.
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If the Court determines that the state court decision was “contrary to, or involved an

5 unreasonable application of, clearly established Federal law,” and the error is not structural,
6 habeas relief is nonetheless unavailable unless it is established that the error “had substantial and
7 injurious effect or influence” on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
8 (internal quotation mark omitted) (quoting Kotteakos v. United States, 328 U.S. 750, 776
9 (1946)).
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AEDPA requires considerable deference to the state courts. The Court looks to the last

11 reasoned state court decision as the basis for the state court judgment. See Brumfield v. Cain,
12 135 S. Ct. 2269, 2276 (2015); Johnson v. Williams, 133 S. Ct. 1088, 1094 n.1 (2013); Ylst v.
13 Nunnemaker, 501 U.S. 797, 806 (1991). “When a federal claim has been presented to a state
14 court and the state court has denied relief, it may be presumed that the state court adjudicated the
15 claim on the merits in the absence of any indication or state-law procedural principles to the
16 contrary.” Richter, 562 U.S. at 99. Where the state court reaches a decision on the merits but
17 provides no reasoning to support its conclusion, a federal court independently reviews the record
18 to determine whether habeas corpus relief is available under § 2254(d). Walker v. Martel, 709
19 F.3d 925, 939 (9th Cir. 2013). “Independent review of the record is not de novo review of the
20 constitutional issue, but rather, the only method by which we can determine whether a silent state
21 court decision is objectively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.
22 2003). The federal court must review the state court record and “must determine what arguments
23 or theories . . . could have supported, the state court’s decision; and then it must ask whether it is
24 possible fairminded jurists could disagree that those arguments or theories are inconsistent with
25 the holding in a prior decision of [the Supreme] Court.” Richter, 562 U.S. at 102.
26 ///
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28 ///

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IV.

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DISCUSSION

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A. Constructive Denial of Assistance of Counsel

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In his first claim for relief, Petitioner asserts that the trial court erred by failing to

5 undertake the requisite inquiry pursuant to People v. Marsden, 2 Cal. 3d 118 (Cal. 1970),
6 regarding Petitioner’s requests to substitute counsel, thereby denying Petitioner a fair trial and
7 the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments. (ECF
8 No. 21 at 7).5 Respondent argues that the state court’s denial of Petitioner’s Marsden claim is not
9 cognizable and does not offend any United States Supreme Court precedent. (ECF No. 34 at 27).
The constructive denial of assistance of counsel claim was raised on direct appeal to the

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11 California Court of Appeal, Fifth Appellate District, which denied the claim in a reasoned
12 decision. The claim was also raised in the petition for review, which the California Supreme
13 Court summarily denied. (LDs 4, 5). As federal courts review the last reasoned state court
14 opinion, the Court will “look through” the summary denial and examine the decision of the
15 California Court of Appeal. See Brumfield, 135 S. Ct. at 2276; Ylst, 501 U.S. at 806.
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In denying Petitioner’s Marsden claim, the California Court of Appeal stated:

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I. The Trial Court Was Not Required To Make An Inquiry Under Marsden.
Appellant asserts that his individual complaints were sufficient to trigger the trial
court’s obligation to inquire into the competency of his appointed counsel and
make inquiries under Marsden, resulting in error. He further argues that even if
his individual complaints were not sufficient to trigger the court’s duty, the
context of his complaints must be examined in light of his low education, his need
for an interpreter, and his lack of prior experience with the criminal justice
system. He contends that a clear indication of his dissatisfaction with his
appointed counsel is clear when everything is read together cumulatively. Finally,
he asserts that the trial court’s error resulted in an unfair trial and denied him the
right to the effective assistance of counsel under the Sixth and Fourteenth
Amendments. He argues that reversal is required. We disagree.

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A criminal defendant is constitutionally entitled to the assistance of courtappointed counsel if unable to hire private counsel. (Marsden, supra, 2 Cal.3d at
p. 123.) A defendant has the right to discharge appointed counsel and substitute
another attorney, but that right is subject to the trial court’s discretion. (Ibid.)
When a defendant complains about the adequacy of appointed counsel, the trial
court must permit the defendant to articulate the basis for his concerns so the
court can determine if they have merit and, if necessary, appoint new counsel. (Id.
at pp. 123–124.) The rule requiring a Marsden hearing also applies posttrial

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Page numbers refer to the ECF page numbers stamped at the top of the page.

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because a defendant is entitled to competent representation at all times. (People v.
Smith (1993) 6 Cal.4th 684, 691.) Substitute counsel should be appointed when
the court determines the first appointed attorney is not providing adequate
representation or there is an irreconcilable conflict so that ineffective
representation will likely occur. (People v. Sanchez (2011) 53 Cal.4th 80, 88–89.)
The defendant must move in some manner to discharge the relationship. (People
v. Lucky (1988) 45 Cal.3d 259, 281.) “The mere fact that there appears to be a
difference of opinion between a defendant and his attorney over trial tactics does
not place a court under a duty to hold a Marsden hearing.” (Ibid.) An indigent
defendant does not have a constitutional right to an attorney conducting the
defense according to the defendant’s wishes, and a disagreement over trial tactics
does not necessarily compel appointment of new counsel. (Id. at pp. 281–282.) A
defendant is not required to file a formal motion to relieve appointed counsel.
(People v. Valdez (2004) 32 Cal.4th 73, 97.) However, the defendant must
provide some clear indication that new counsel is desired. (Ibid.) Without such a
clear indication in the record, no error occurs when the trial court fails to conduct
a Marsden hearing. (People v. Richardson (2009) 171 Cal.App.4th 479, 484.) A
defendant must do more than grumble about his counsel’s performance. (People
v. Lee (2002) 95 Cal.App.4th 772, 780.)

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In People v. Dickey (2005) 35 Cal.4th 884, the defendant stated he was not
satisfied with the competency of his attorney, noting his counsel failed to call
witnesses who were available and crucial to his defense, his counsel failed to raise
crucial issues at trial, and his counsel failed to ask him certain questions while he
was on the witness stand. (Id. at p. 919.) Our Supreme Court determined the
defendant did not clearly indicate he wanted substitute counsel appointed for the
penalty phase of his trial. (Id. at pp. 920–921.) Accordingly, Dickey concluded
that the trial court did not err. (Id. at p. 920.)
Here, appellant’s first letter indicated his strongest dissatisfaction with his
counsel, noting he was not receiving the necessary attention and “they” had not
investigated what appellant believed was necessary. However, similar to the
defendant in People v. Dickey, supra, 35 Cal.4th 884, neither this letter, nor any
of appellant’s other communications, can be construed as an indication, must less
a “clear” one, that he desired new counsel. Indeed, appellant’s first letter asks the
court to send any information it has to his current counsel. Appellant’s
dissatisfaction with his appointed counsel appears more like grumbling about
performance (see People v. Lee, supra, 95 Cal.App.4th at p. 780), or a difference
in opinion over trial tactics (People v. Lucky, supra, 45 Cal.3d at p. 281) than a
desire to end the relationship. A majority of appellant’s comments were
complaints directed at the prosecution and law enforcement.
Via letter dated October 30, 2015, appellant cites this court’s opinion in People v.
Velasco–Palacios (2015) 235 Cal.App.4th 439 (Velasco–Palacios) as new
authority in support of his arguments that a statement was not recorded, and his
own statement was shortened, fixed, incomplete, cut and edited. This authority is
unpersuasive.

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In Velasco–Palacios, the prosecutor inserted a false confession into a transcript of
the defendant’s police interrogation. The defendant’s motion to dismiss was
granted on the basis of outrageous government misconduct. (Velasco–Palacios,
supra, 235 Cal.App.4th at p. 442.) The court found that the misconduct “ ‘diluted
the protections coming with the right to counsel’ ” and risked the defendant being
fraudulently induced to enter a plea and forfeit his right to a jury trial. (Id. at p.

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444.) On appeal, this court affirmed the trial court’s order of dismissal because
the defendant’s constitutional right to counsel was prejudiced by the prosecutor’s
misconduct. (Id. at pp. 451–452.)

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Velasco–Palacios did not involve a defendant’s stated dissatisfaction with
appointed defense counsel or a request to remove appointed counsel. Velasco–
Palacios is inapposite to the present analysis and does not dictate reversal. When
appellant’s communications are read individually or collectively, this record does
not establish his clear desire to discharge his appointed counsel. This is true even
when appellant’s low level of education, language skills and lack of contact with
the criminal justice system are considered. The trial court was under no duty to
conduct a Marsden hearing or make similar inquiries.6 Appellant’s convictions
will not be reversed.

3
4
5
6
7

8 Zapata, 2015 WL 6945730, at *3–4 (footnote in original).
To the extent that Petitioner asserts a violation of Marsden, the Court finds such a claim

9

10 is not cognizable in federal habeas corpus. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per
11 curiam) (“[I]t is only noncompliance with federal law that renders a State’s criminal judgment
12 susceptible to collateral attack in the federal courts.”); Estelle v. McGuire, 502 U.S. 62, 67–68
13 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations
14 on state-law questions.”); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (citations
15 omitted) (“We accept a state court’s interpretation of state law, and alleged errors in the
16 application of state law are not cognizable in federal habeas corpus.”).
With respect to Petitioner’s federal claims related to the conflict with defense counsel, the

17

18 California Court of Appeal explicitly stated that it did not address Petitioner’s “contention that he
19 was denied a fair trial and the effective assistance of counsel guaranteed by the Sixth and
20 Fourteenth Amendments.” Zapata, 2015 WL 6945730, at *4 n.2. As the state court did not reach
21 the merits of Petitioner’s federal claim, the Court will review the claim de novo. Cone v. Bell,
22 556 U.S. 449, 472 (2009).
“The Supreme Court has held that a defendant is constitutionally entitled to a lawyer who

23

24 is free of conflicts of interest and who can act as a loyal advocate, but he has no constitutional
25 right to a ‘meaningful relationship’ with appointed counsel.” Plumlee v. Masto, 512 F.3d 1204,
26 1211 (9th Cir. 2008) (en banc). In Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000) (en banc), the
27
6

Because the trial court did not err, we do not address appellant’s contention that he was denied a fair trial and the

28 effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments.
12

1 Ninth Circuit addressed a habeas petitioner’s claim “that the state trial court violated his right to
2 counsel by failing to rule on his pre-trial motion requesting substitute counsel.” Id. at 1020. The
3 Ninth Circuit found the state court’s failure to properly address the petitioner’s motion to be a
4 “non-structural constitutional error.” Id. at 1027. The Ninth Circuit framed the “ultimate
5 constitutional question” presented in the case as follows:
6
7
8
9
10
11
12
13
14
15
16

In this case, the issue is neither Schell’s right to choice of counsel
nor a denial of counsel. Instead, the basic question is simply
whether the conflict between Schell and his attorney prevented
effective assistance of counsel. See Morris, 461 U.S. at 13–14, 103
S.Ct. 1610 (holding that the Sixth Amendment requires only
competent representation and does not guarantee a meaningful
relationship between a defendant and counsel). It may be the case,
for example, that because the conflict was of Schell’s own making,
or arose over decisions that are committed to the judgment of the
attorney and not the client, in fact he actually received what the
Sixth Amendment required in the case of an indigent defendant,
notwithstanding the State trial court’s failure to inquire.
Thus, the ultimate constitutional question the federal courts must
answer here is not whether the state trial court “abused its
discretion” in not deciding Schell’s motion, but whether this error
actually violated Schell’s constitutional rights in that the conflict
between Schell and his attorney had become so great that it
resulted in a total lack of communication or other significant
impediment that resulted in turn in an attorney-client relationship
that fell short of that required by the Sixth Amendment.

17 Schell, 218 F.3d at 1026 (footnote omitted).
18

Petitioner fails to demonstrate that the conflict between Petitioner and defense counsel

19 was such that Petitioner was deprived of his right to assistance of counsel. To “show that there
20 was an ‘extensive, irreconcilable conflict’ between [a petitioner] and his appointed counsel[, t]his
21 conflict must have led to ‘a significant breakdown in communication that substantially interfered
22 with the attorney-client relationship.’” United States v. Mendez-Sanchez, 563 F.3d 935, 943 (9th
23 Cir. 2009) (first quoting United States v. Smith, 282 F.3d 758, 763 (9th Cir. 2002); then quoting
24 United States v. Adelzo-Gonzalez, 268 F.3d 772, 779 (9th Cir. 2001)). “A conflict that is based
25 solely on ‘disputes regarding trial tactics’ generally is not the type of conflict that warrants
26 substitution of counsel.” United States v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009) (quoting
27 United States v. McKenna, 327 F.3d 830, 844 (9th Cir. 2003)).
28 ///

13

1

In his first letter to the trial court, Petitioner accused Sergeant Zamudio of lying and filing

2 an incomplete report. Petitioner indicated that Sergeant Zamudio’s “phone record” would show a
3 statement made by Petitioner on August 24, 2011 at approximately 5:00 p.m. that was not
4 included in the report. Petitioner also requested a copy of his medical records, which would show
5 that Petitioner was receiving treatment for a contagious venereal disease and thus, prove that
6 Petitioner never had any type of sexual contact with the victim. Zapata, 2015 WL 6945730, at
7 *1. Petitioner informed the trial court of his reason for writing as follows: “I do this personally
8 because I consider that I have not received the necessary attention by my attorney and they
9 haven’t investigated what is necessary. I hope that it is possible that all information can be sent
10 to the attorney in my case.” Id. at *2. Petitioner’s subsequent letters focused extensively on his
11 complaints of the prosecution and law enforcement rather than defense counsel.
12

In sum, Petitioner believed that his case was not receiving the necessary attention from

13 defense counsel, who had not investigated what Petitioner deemed to be necessary. However,
14 Petitioner does not demonstrate that any conflict between defense counsel and Petitioner resulted
15 in “a significant breakdown in communication that substantially interfered with the attorney16 client relationship.” Adelzo-Gonzalez, 268 F.3d at 779. Accordingly, the Court finds that
17 Petitioner is not entitled to habeas relief on his first claim, and it should be denied.
18

B. Restriction of Cross-Examination

19

In his second claim for relief, Petitioner asserts that the trial court unfairly restricted the

20 defense’s cross-examination of the victim regarding her sexual history and the number 13 tattoo
21 on her hand. (ECF No. 21 at 9, 50). Respondent argues that the state court’s denial of this claim
22 was on the merits, is entitled to AEDPA deference, and does not offend any United States
23 Supreme Court precedent. (ECF No. 34 at 25–27, 32).
24

1. Standard of Review

25

This claim was raised in all of Petitioner’s state habeas petitions. In denying Petitioner’s

26 state habeas petition, the California Supreme Court stated: “The petition for writ of habeas
27 corpus is denied. (See People v. Duvall (1995) 9 Cal.4th 464, 474 [a petition for writ of habeas
28 corpus must include copies of reasonably available documentary evidence].)” (LD 17).

14

1 Respondent contends that the California Supreme Court’s Duvall citation did not apply to the
2 restricted cross-examination claim because said claim is based on the appellate record.
3 Respondent further argues that even if the Duvall citation applied to this claim, the California
4 Supreme Court’s denial was a merits adjudication. (ECF No. 34 at 25–27). “Courts can . . . deny
5 writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether
6 AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas
7 corpus if his or her claim is rejected on de novo review . . . .” Berghuis v. Thompkins, 560 U.S.
8 370, 390 (2010). Accordingly, the Court will proceed to review Petitioner’s claim de novo.
9
10

2. Analysis
The Sixth Amendment’s Confrontation Clause, made applicable to the states by the

11 Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403 (1965), provides that “[i]n all
12 criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
13 against him.” U.S. Const. amend. VI. “The main and essential purpose of confrontation is to
14 secure for the opponent the opportunity of cross-examination.” Davis v. Alaska, 415 U.S. 308,
15 315 (1974) (quoting 5 J. Wigmore, Evidence § 1395, at 123 (3d ed. 1940)). However, the
16 Supreme Court has recognized that “trial judges retain wide latitude insofar as the Confrontation
17 Clause is concerned to impose reasonable limits on such cross-examination based on concerns
18 about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or
19 interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S.
20 673, 679 (1986). “[T]he Confrontation Clause guarantees an opportunity for effective cross21 examination, not cross-examination that is effective in whatever way, and to whatever extent, the
22 defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam).
23
24

a. Tattoo
Petitioner argues that the trial court erroneously prevented defense counsel from cross-

25 examining the victim regarding a number 13 tattoo, which Petitioner alleges was “placed on her
26 hand, that she made at the urging of a male classmate to be a member of a criminal street
27 gang[.]” (ECF No. 21 at 50). The issue of the victim’s tattoo was raised at the motion in limine
28 hearing. (1 RT 17). Defense counsel informed the trial court that the victim “had this tattoo,

15

1 came home with it, Mr. Zapata confronted her with it and . . . there was a family debate issue
2 regarding that tattoo. Just after that, the allegations were made that my client did some
3 inappropriate things. So that could be a possibility as to why she’s saying these things.” (1 RT
4 17–18). The trial court indicated that if the evidence of the tattoo was otherwise admissible, it
5 might be presented as to the victim’s credibility because it “[s]eems that if the defense has a
6 reasonable motivation why the child would implicate Mr. Zapata that that is relevant.” (1 RT 19).
Immediately prior to the commencement of the subsequent 402 hearing,7 defense counsel

7

8 informed the trial court that he no longer believed the tattoo issue is “as big an issue as [he] had
9 thought” after speaking with Ms. Cervantes, the victim’s sister. (4 RT 906). At the 402 hearing,
10 Ms. Cervantes testified that the victim had returned home with a marking of the number 13 on
11 her hand. The marking was not a tattoo, but rather was made by the victim “getting a pen and
12 just writing really hard on her hand.” (4 RT 923). The victim told Ms. Cervantes that a boy from
13 her class had told her and some other girls to do it, and explained that her favorite singer also
14 likes the number 13. (4 RT 923). Ms. Cervantes testified, “I know I had gotten onto her . . . . She
15 wrote it so hard that it cut into her skin.” (4 RT 923). Petitioner did not discipline the victim, but
16 “told her that she shouldn’t be doing that.” (9 RT 924). After hearing Ms. Cervantes’s testimony,
17 defense counsel informed the court that the tattoo issue was “probably less relevant” and that he
18 was not going to offer the tattoo evidence as he did not “believe that’s going to be important to
19 the case.” (9 RT 947).
Here, defense counsel indicated to the trial court that the tattoo evidence was not as

20

21 important as he initially believed and that counsel would not seek to introduce such evidence.
22 The trial court did not prevent or otherwise restrict defense counsel from cross-examining the
23 victim regarding the alleged tattoo. Thus, there was no Confrontation Clause violation with
24 respect to the tattoo evidence, and Petitioner is not entitled to habeas relief on this ground. To the
25 extent Petitioner asserts ineffective assistance of counsel for failing to question Ms. Cervantes at
26 trial regarding the tattoo, the Court will address Petitioner’s claim in section IV(E)(2), infra.
27
7

California Evidence Code section 402(b) provides that the “court may hear and determine the question of the

28 admissibility of evidence out of the presence or hearing of the jury[.]” Cal. Evid. Code § 402(b).
16

1
2

b. Victim’s Sexual History
With respect to questions regarding the victim’s past or present sexual history or

3 activities with anyone other than Petitioner, the trial court granted the prosecution’s motion in
4 limine. (1 RT 20; CT 108). At the motion in limine hearing, defense counsel stated that he
5 intended to ask the DNA expert and the victim about the male DNA, which came back negative
6 for Petitioner, but that the questions would not be sexual in nature. (1 RT 12–13). The trial court
7 indicated that if evidence from the 402 hearing or trial established that it was possible another
8 person supplied the DNA in an inappropriate manner, then the issue could be addressed further at
9 that time. (1 RT 16–17, 20). Subsequently during the trial, the court stated that the victim would
10 be subject to recall with respect to the third-party DNA if it appeared necessary after the DNA
11 expert’s testimony. (5 RT 1212). Although defense counsel initially planned to recall the victim
12 for further testimony, counsel subsequently informed the court that for “strategic reasons” he was
13 no longer going to do so. (8 RT 2115; 9 RT 2428).
14

Petitioner has failed to show any harm in the trial court’s limitation related to cross-

15 examining the victim regarding her past or present sexual history or activities with anyone other
16 than Petitioner. Defense counsel was able to cross-examine the victim extensively regarding the
17 incidents with Petitioner. There was evidence introduced at trial that Petitioner was eliminated as
18 a contributor to the male DNA found on the victim’s breast, the nurse practitioner found no
19 physical injuries or abnormalities on the victim’s body, and the victim’s hymen was normal with
20 no lacerations, cuts, or bruises. (6 RT 1520–22, 1545, 1549). Petitioner has not established that
21 the inability to cross-examine the victim regarding her sexual history or activities with anyone
22 other than Petitioner “had substantial and injurious effect or influence” on the verdict. Brecht,
23 507 U.S. at 637. Accordingly, Petitioner is not entitled to habeas relief on this ground.
24

C. Admission of Confession

25

In his third claim for relief, Petitioner asserts that his conviction was based on an

26 unlawful confession. (ECF No. 21 at 10, 54). Respondent argues that the state court’s denial of
27 this claim was on the merits, is entitled to AEDPA deference, and does not offend any United
28 States Supreme Court precedent. (ECF No. 34 at 25–27, 35). For the reasons set forth in section

17

1 IV(B)(1), supra, the Court will review Petitioner’s claim de novo. See Thompkins, 560 U.S. at
2 390.
3

1. Factual Background

4

Petitioner was interviewed by Sergeant Zachary Zamudio of the Madera County Sheriff’s

5 Department. (6 RT 1558–60). The interview was recorded. (6 RT 1560–61). After first asking
6 Petitioner if he knew why he was being interviewed, Petitioner’s address, date of birth, and age,
7 Sergeant Zamudio had a department certified translator read Petitioner his Miranda rights. (Supp.
8 CT 5–6; 6 RT 1560). Petitioner indicated that he understood his rights. (Supp. CT 6). During the
9 interview, Petitioner denied penetrating the victim with his fingers or penis, but admitted to
10 touching and sucking the victim’s breasts, putting his mouth on the victim’s vagina, putting his
11 fingers and penis on the victim’s vagina, and having the victim touch his penis. (Supp. CT 32–
12 59). Petitioner told the victim that she was helping his marriage and stated in the interview that
13 what they were doing excited him so he could make love to his wife. (Supp. CT 26, 52). At the
14 end of the interview, Sergeant Zamudio asked Petitioner where he was born. (Supp. CT 64–65).
Defense counsel did not move to suppress Petitioner’s statements, but rather moved in

15

16 limine to allow the entire conversation to be admitted and to introduce all relevant evidence
17 necessary to make Petitioner’s alleged admissions fully understood. (1 CT 103–05; 1 RT 24–26).
18 At the motion in limine hearing, the prosecutor stated that she intended to introduce the entire
19 conversation, and the trial court indicated that the admission of any additional evidence to
20 explain Petitioner’s alleged admissions would be addressed on a case-by-case basis. (1 RT 25–
21 26). Prior to Petitioner’s interview being introduced into evidence and played for the jury,
22 references to an arrest in Mexico, which were made at the beginning of the interview, and
23 references to a polygraph test, which were made partway through the interview, were removed
24 with the apparent agreement of the parties and the trial court. (5 Aug. RT8 1354–55; 4 RT 967–
25 68, 971). The record before this Court does not include the unredacted interview transcript or
26 recording.
27
8

“Aug. RT” refers to the Reporter’s Augmented Transcript on Appeal lodged by Respondent on March 9, 2018.

28 (ECF No. 36).

18

1

2. Legal Standard

2

Before a suspect can be subjected to custodial interrogation, he must be warned “that he

3 has the right to remain silent, that anything he says can be used against him in a court of law, that
4 he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be
5 appointed for him prior to any questioning if he so desires.” Miranda v. Arizona, 384 U.S. 436,
6 479 (1966). “After such warnings have been given, and [an] opportunity [to exercise these rights]
7 afforded him, the individual may knowingly and intelligently waive these rights and agree to
8 answer questions or make a statement.” Id. With respect to waiver of Miranda rights, “[t]he
9 inquiry has two distinct dimensions”:
10
11
12
13
14

First, the relinquishment of the right must have been voluntary in
the sense that it was the product of a free and deliberate choice
rather than intimidation, coercion, or deception. Second, the waiver
must have been made with a full awareness of both the nature of
the right being abandoned and the consequences of the decision to
abandon it. Only if the “totality of the circumstances surrounding
the interrogation” reveal both an uncoerced choice and the
requisite level of comprehension may a court properly conclude
that the Miranda rights have been waived.

15 Moran v. Burbine, 475 U.S. 412, 421 (1986) (citations omitted). “[U]nless and until such
16 warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a
17 result of interrogation can be used against” the suspect. Miranda, 384 U.S. at 479. However,
18 “[t]he requirement that Miranda warnings be given does not, of course, dispense with the
19 voluntariness inquiry.” Dickerson v. United States, 530 U.S. 428, 444 (2000).
20

The Due Process Clause of the Fourteenth Amendment requires confessions to be

21 voluntary in order to be admitted into evidence. Dickerson, 530 U.S. at 433. The due process
22 voluntariness test “examines ‘whether a defendant’s will was overborne’ by the circumstances
23 surrounding the giving of a confession” and “takes into consideration ‘the totality of all the
24 surrounding circumstances—both the characteristics of the accused and the details of the
25 interrogation.’” Id. at 434 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). In
26 sum, the voluntariness “determination ‘depend[s] upon a weighing of the circumstances of
27 pressure against the power of resistance of the person confessing.’” Dickerson, 530 U.S. at 434
28 (quoting Stein v. New York, 346 U.S. 156, 185 (1953)).

19

1

3. Analysis

2

In the traverse, Petitioner asserts that prior to receiving the Miranda advisement,

3 Petitioner made statements to Sergeant Zamudio regarding his immigration status and an arrest
4 in Mexico for failing to pay child support. (ECF No. 38 at 26). To the extent that Miranda
5 applies to the biographical questions posed to Petitioner at the beginning of the interview before
6 Petitioner received the Miranda advisement,9 Petitioner is not entitled to habeas relief on this
7 ground because Petitioner’s unwarned statements regarding his immigration status and arrest in
8 Mexico were not admitted at trial. (4 RT 967–71). See Jones v. Harrington, 829 F.3d 1128, 1141
9 (9th Cir. 2016) (“Miranda error does not entitle [a petitioner] to habeas relief if the error
10 was harmless.”).
Petitioner also contends that his admissions were coerced under the threat of a polygraph

11

12 test and deportation. (ECF No. 21 at 55–58; ECF No. 38 at 26). “[I]t is the petitioner’s burden to
13 prove his custody is in violation of the Constitution, laws or treaties of the United States. This
14 burden of proof must be carried by a preponderance of the evidence.” Silva v. Woodford, 279
15 F.3d 825, 835 (9th Cir. 2002) (citations omitted). See also Ben-Sholom v. Ayers, 674 F.3d 1095,
16 1099 (9th Cir. 2012). Here, the state court record does not establish, and Petitioner has not
17 provided the Court with sufficient factual allegations to demonstrate, that the totality of the
18 circumstances supports the conclusion that Petitioner’s statements were coerced or involuntary.
Although it is clear from the record that there were references made to a polygraph test

19

20 during the interview, the record before this Court does not include the unredacted interview
21 transcript or recording. Defense counsel described the reference to a polygraph test as follows:
22 “There was part way through the transcript it was either suggestion by my client or officer or
23 Officer Zamudio about taking a lie detector test, which my client said ‘uh-huh’ in the
24 affirmative. Of course, no lie detector was conducted and it’s not relevant in court.” (5 Aug. RT
25 1354). In the second amended petition, Petitioner merely states in conclusory fashion, without
26
9

“[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions

27 on the part of the police (other than those normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301

28 (1980).

20

1 any supporting factual allegations, that his confession was coerced by Sergeant Zamudio’s
2 comment that Petitioner take a polygraph test. (ECF No. 21 at 58, 59). However, “[t]he prospect
3 of a voluntary polygraph examination is not coercive.” United States v. Eagle, 293 F. App’x 506,
4 508 (9th Cir. 2008) (citing United States v. Haswood, 350 F.3d 1024, 1028–29 (9th Cir. 2003)).
Petitioner appears to assert that his answer to the biographical questions posed to him

5

6 prior to receiving the Miranda advisement regarding his immigration status and prior arrest in
7 Mexico led Petitioner to be afraid of being deported. (ECF No. 21 at 55, 58). The record before
8 this Court does not include the unredacted interview transcript or video, and thus, does not
9 establish what Sergeant Zamudio said regarding Petitioner’s immigration status and prior arrest
10 in Mexico. However, Sergeant Zamudio’s question regarding where Petitioner was born at the
11 end of the interview was not “the kind of misbehavior that so shocks the sensibilities of civilized
12 society as to warrant a federal intrusion into the criminal processes of the States.” Burbine, 475
13 U.S. at 433–34.
Based on the foregoing, Petitioner is not entitled to habeas relief on his third claim, and it

14

15 should be denied.
16

D. Sufficiency of the Evidence

17

In his fourth claim for relief, Petitioner asserts, inter alia, that there was insufficient

18 evidence to support his convictions on counts 1 and 3.10 (ECF No. 21 at 12, 60–63). Respondent
19 argues that the state court’s denial of this claim was on the merits, is entitled to AEDPA
20 deference, and does not offend any United States Supreme Court precedent. (ECF No. 34 at 25–
21 27, 38). For the reasons set forth in section IV(B)(1), supra, the Court will proceed to review
22 Petitioner’s claim de novo. See Thompkins, 560 U.S. at 390.
The Supreme Court has held that when reviewing a sufficiency of the evidence claim, a

23

24 court must determine whether, viewing the evidence and the inferences to be drawn from it in the
25 light most favorable to the prosecution, any rational trier of fact could find the essential elements
26 of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). A
27
10

In his fourth claim for relief, Petitioner also asserts ineffective assistance of counsel, which is discussed in section

28 IV(E), infra.

21

1 reviewing court “faced with a record of historical facts that supports conflicting inferences must
2 presume—even if it does not affirmatively appear in the record—that the trier of fact resolved
3 any such conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 326. State
4 law provides “for ‘the substantive elements of the criminal offense,’ but the minimum amount of
5 evidence that the Due Process Clause requires to prove the offense is purely a matter of federal
6 law.” Coleman v. Johnson, 566 U.S. 650, 655 (2012) (quoting Jackson, 443 U.S. at 319).
7 Jackson “makes clear that it is the responsibility of the jury—not the court—to decide what
8 conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside
9 the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could
10 have agreed with the jury.” Cavazos v. Smith, 556 U.S. 1, 2 (2011).
11

Viewing the record in the light most favorable to the prosecution and presuming the jury

12 resolved any conflicting inferences in favor of the prosecution, a rational trier of fact could have
13 found true beyond a reasonable doubt that Petitioner committed digital penetration of a child ten
14 years or younger (count 1) and engaged in oral copulation with a child ten years or younger
15 (count 3). The victim testified that Petitioner touched her breast and vagina, put his finger inside
16 her vagina, attempted to have sexual intercourse with her, rubbed his penis against her thigh and
17 vagina, licked her vagina, and put her hand on his penis. (5 RT 1232–46, 1251, 1257–59, 1286).
18 Petitioner appears to argue that the victim’s testimony was false because (1) the nurse
19 practitioner found no injuries on the victim and determined that she had a normal hymen, and (2)
20 Petitioner was eliminated as a contributor to the male DNA found on the victim’s breast. (ECF
21 No. 21 at 61–62). This evidence was presented to the jury along with Petitioner’s interview in
22 which he denied penetrating the victim with his fingers or penis, but admitted to touching and
23 sucking the victim’s breasts, putting his mouth on the victim’s vagina, putting his fingers and
24 penis on the victim’s vagina, and having the victim touch his penis. (Supp. CT 32–59).
25

In light of the verdict, the jury clearly found the victim and her testimony to be credible,

26 and “under Jackson, the assessment of credibility of witnesses is generally beyond the scope of
27 review.” Schlup v. Delo, 513 U.S. 298, 330 (1995). See also Bruce v. Terhune, 376 F.3d 950,
28 957 (9th Cir. 2004) (“A jury’s credibility determinations are therefore entitled to near-total

22

1 deference under Jackson.”). Accordingly, Petitioner is not entitled to habeas relief on this
2 ground.
3

E. Ineffective Assistance of Counsel

4

In his fourth claim for relief, Petitioner also asserts that trial counsel was ineffective for

5 not properly examining Carmen Cervantes and for failing to file a motion to suppress Petitioner’s
6 confession. (ECF No. 21 at 12, 63–65). Further, Petitioner contends that his appellate counsel
7 was ineffective for failing to raise the claims set forth in the instant habeas petition on direct
8 appeal. (Id. at 66). Respondent argues that the state court’s denial of the ineffective assistance of
9 counsel claims was on the merits, is entitled to AEDPA deference, and does not offend any
10 United States Supreme Court precedent. (ECF No. 34 at 25–27, 41, 44). For the reasons set forth
11 in section IV(B)(1), supra, the Court will proceed to review Petitioner’s claim de novo. See
12 Thompkins, 560 U.S. at 390.
13

1. Strickland Legal Standard

14

The clearly established federal law governing ineffective assistance of counsel claims is

15 Strickland v. Washington, 466 U.S. 668 (1984), which requires a petitioner to show that (1)
16 “counsel’s performance was deficient,” and (2) “the deficient performance prejudiced the
17 defense.” Id. at 687. To establish deficient performance, a petitioner must demonstrate that
18 “counsel’s representation fell below an objective standard of reasonableness” and “that counsel
19 made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
20 defendant by the Sixth Amendment.” Id. at 688, 687. Judicial scrutiny of counsel’s performance
21 is highly deferential. A court indulges a “strong presumption” that counsel’s conduct falls within
22 the “wide range” of reasonable professional assistance. Id. at 687. To establish prejudice, a
23 petitioner must demonstrate “a reasonable probability that, but for counsel’s unprofessional
24 errors, the result of the proceeding would have been different. A reasonable probability is a
25 probability sufficient to undermine confidence in the outcome.” Id. at 694. A court “asks whether
26 it is ‘reasonable likely’ the result would have been different. . . . The likelihood of a different
27 result must be substantial, not just conceivable.” Richter, 562 U.S. at 111–12 (citing Strickland,
28 466 U.S. at 696, 693).

23

1

2. Failure to Properly Examine Carmen Cervantes

2

Petitioner asserts that trial counsel was ineffective for not properly examining the

3 victim’s sister, Carmen Cervantes. Petitioner contends that Ms. Cervantes had knowledge and
4 could explain to the jury the victim’s motive for making false allegations against Petitioner.
5 (ECF No. 21 at 64). According to Petitioner, the number 13 tattoo was “made at the urging of [a]
6 male classmate to be a member of a criminal street gang,” and Petitioner had requested the trial
7 court to conduct a full investigation of the criminal activity at the victim’s school. (ECF No. 21
8 at 50, 64). In his pre-sentencing letter to the probation officer, Petitioner explained:
9
10
11
12
13
14
15

In the beginning of 2011 [the victim] was obligated to tattoo on her
hand ‘N 13’ to be a member of a criminal street gang at Cesar
Chavez Elementary School. . . . Her attitude towards me continued
and she continued to be involved in the criminal street gang. I
began to think that someone had harmed her and I began to ask
her. I looked for additional tattoos on her because in the past she
told me that she was going to get another tattoo. She always told
me it was none of my business. I continued trying to investigate to
know for myself. I know I went about it the wrong way and in the
process I made the mistake of touching her. I made it very clear
and sincere that I never had any type of penetration or oral sex, or
anything else that they accused me of.

16 Zapata, 2015 WL 6945730, at *2.
17

At the 402 hearing, Ms. Cervantes testified that the victim had returned home with a

18 marking of the number 13 on her hand. The marking was not a tattoo, but rather was made by the
19 victim “getting a pen and just writing really hard on her hand.” (4 RT 923). The victim told Ms.
20 Cervantes that a boy from her class had told her and some other girls to do it and explained that
21 her favorite singer also likes the number 13. (4 RT 923). Ms. Cervantes testified that Petitioner
22 did not discipline the victim, but “told her that she shouldn’t be doing that.” (9 RT 924).
23

Based on Ms. Cervantes’s testimony at the 402 hearing, the number 13 on the victim’s

24 hand was a marking made with pen, not a tattoo, and did not have a connection to a criminal
25 street gang. Petitioner merely told the victim “that she shouldn’t be doing that” and did not
26 discipline her. Given that Ms. Cervantes’s testimony would not have supported Petitioner’s
27 theory of the victim’s alleged motive to lie, Petitioner has not established that there is “a
28 reasonable probability that . . . the result of the proceeding would have been different” had

24

1 defense counsel questioned Ms. Cervantes at trial about the number 13 marking. Accordingly,
2 Petitioner is not entitled to habeas relief on this ground.
3

3. Failure to File Suppression Motion

4

Petitioner asserts that trial counsel was ineffective for failing to file a motion to suppress

5 Petitioner’s confession. (ECF No. 21 at 64). “Generally, a defendant claiming ineffective
6 assistance of counsel for failure to file a particular motion must not only demonstrate a
7 likelihood of prevailing on the motion, but also a reasonable probability that the granting of the
8 motion would have resulted in a more favorable outcome in the entire case.” Styers v. Schriro,
9 547 F.3d 1026, 1030 n.5 (9th Cir. 2008). As set forth in section IV(C), supra, the totality of the
10 circumstances supports the conclusion that Petitioner’s confession was voluntary. Therefore,
11 Petitioner has not established that there is “a reasonable probability that . . . the result of the
12 proceeding would have been different” had defense counsel filed a motion to suppress
13 Petitioner’s confession. Accordingly, Petitioner is not entitled to habeas relief on this ground.
14

4. Ineffective Assistance of Appellate Counsel

15

Petitioner asserts that appellate counsel was ineffective for failing to raise the claims

16 presented in the instant federal habeas petition on direct appeal. (ECF No. 21 at 66). The
17 Supreme Court has held that appellate counsel does not have a constitutional obligation to raise
18 every nonfrivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 754 (1983). Rather, the
19 “process of ‘winnowing out weaker arguments on appeal and focusing on’ those more likely to
20 prevail, far from being evidence of incompetence, is the hallmark of effective appellate
21 advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones, 463 U.S. at 751–52). As
22 discussed in sections IV(B)–(D), supra, this Court has found, applying de novo review, that
23 Petitioner is not entitled to habeas relief for the other claims he raises in the instant federal
24 habeas petition. Therefore, Petitioner has not established that there is “a reasonable probability
25 that . . . the result of the proceeding would have been different” had appellate counsel raised
26 these claims on direct appeal. Strickland, 466 U.S. at 694. Accordingly, Petitioner is not entitled
27 to habeas relief on this ground.
28 ///

25

1

V.

2

RECOMMENDATION

3

Accordingly, the undersigned HEREBY RECOMMENDS that the second amended

4 petition for writ of habeas corpus (ECF No. 21) be DENIED.
5

This Findings and Recommendation is submitted to the assigned United States District

6 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local
7 Rules of Practice for the United States District Court, Eastern District of California. Within
8 THIRTY (30) days after service of the Findings and Recommendation, any party may file
9 written objections with the court and serve a copy on all parties. Such a document should be
10 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the
11 objections shall be served and filed within fourteen (14) days after service of the objections. The
12 assigned United States District Court Judge will then review the Magistrate Judge’s ruling
13 pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within
14 the specified time may waive the right to appeal the District Court’s order. Wilkerson v.
15 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th
16 Cir. 1991)).
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IT IS SO ORDERED.
Dated:

October 30, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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