Rodriguez v. Diaz
Filing
25
MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 05/28/14 ordering the petition for writ of habeas corpus is denied. The court declines to issue a certificate of appealability. The clerk of the court is directed to enter judgment. CASE CLOSED. (Plummer, M)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
JUAN RAMON RODRIGUEZ,
No. 2:12-cv-01923-JKS
Petitioner,
MEMORANDUM DECISION
vs.
MARION SPEARMAN, Warden,
Correctional Training Facility,1
Respondent.
Juan Ramon Rodriguez, a state prisoner proceeding pro se, filed a Petition for a Writ of
Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Rodriguez is in the custody of the
California Department of Corrections and Rehabilitation and incarcerated at the Correctional
Training Facility in Soledad, California. Respondent has answered, and Rodriguez has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On April 30, 2009, Rodriguez was charged with one count of rape of a child under the
age of fourteen by a person more than ten years older than the victim and three counts of lewd
and lascivious acts on a child under the age of fourteen. On direct appeal of his conviction, the
California Court of Appeal recounted the following facts underlying the indictment:
Prosecution Evidence
On February 3, 2001, Ashley T. was 11 years old—about the same age as her
friend Antonia. That evening, Ashley and Antonia went to a sleepover at the apartment
of their friend, Blanca. The girls watched movies before turning out the lights and going
to sleep at approximately 11:00 p.m.
1
Marion Spearman, Warden, Correctional Training Facility, is substituted for R.
Diaz, former Warden, California Substance Abuse Treatment Facility and State Prison, Corcoran.
FED. R. CIV. P. 25(c).
Ashley fell asleep on a couch in the living room. She was wearing pajamas with a
drawstring and a tank top. She had covered herself with a blanket. Sometime after
midnight, [Rodriguez] woke her up and told her to turn the lights off. [Rodriguez] is
Blanca’s brother. Ashley responded “why don’t you turn off the lights,” rolled over, and
started going back to sleep. Five to 10 minutes later, [Rodriguez] again woke Ashley.
This time, [Rodriguez] put his hand on Ashley’s shoulder and rolled her onto her back.
[Rodriguez] asked whether the boy with whom Ashley often hung out was her boyfriend.
Ashley responded that the boy was not her boyfriend. [Rodriguez] then asked if she “had
ever done anything sexual before” and kissed her cheek. Ashley was scared.
[Rodriguez] climbed on top of Ashley and put his hand over her mouth. Ashley
tried to kick him, but she was unable to move. [Rodriguez] was much larger than she
was, and she felt overpowered. [Rodriguez] told her that if she was loud, he would hurt
her. Ashley believed him.
[Rodriguez] pulled Ashley’s pants and underwear off before unbuttoning his own
pants. Ashley was unable to get her pants back on. [Rodriguez] touched Ashley’s vagina
with his fingers. He then pulled his pants to his knees and inserted his penis into her
vagina. Over the next two minutes, [Rodriguez] inserted his penis three or four times.
Ashley testified that “it hurt a lot.” [Rodriguez] also kissed her on the lips. He then
threatened that if she reported what happened, he would hurt or kill her. Ashley believed
him.
[Rodriguez] got up and went to the bathroom for about 20 minutes before leaving
the apartment. During this time, Ashley pretended to be asleep. After checking that
[Rodriguez] had really left, Ashley woke up Antonia. Ashley said that she did not feel
comfortable and called her father. Fearing [Rodriguez], Ashley did not tell Antonia what
had happened.
Ashley’s father had just been released from custody following his arrest for
driving under the influence. Her father came over to walk Ashley home. For fear of
[Rodriguez], Ashley also did not tell her father what happened.
At home, Ashley found her underwear was spotted with blood. She threw the
underwear away so her mother would not see it.
The next day, Ashley saw [Rodriguez] but said nothing to him. Other than her
friend, Marcello, Ashley did not tell anyone about what had happened.
In June 2007, Ashley left her house after an argument with her father. About two
hours after she left the house, she spoke with a police officer. During the conversation,
Ashley “felt that [she] needed to deal with it” and told the officer about [Rodriguez]
raping her years earlier. She testified, “I didn’t know until a few years after it happened
how to say it to someone and then I thought that it would be too late to say something; but
I said something later because I was just sick of, you know, people saying all these things
that weren’t true about me.” Ashley was uncomfortable with a physical sexual
examination and refused to submit to one.
In March 2008, Sacramento County Sheriff’s Detective Anthony Saika
interviewed [Rodriguez]. After initially denying that he knew the victim, [Rodriguez]
admitted touching Ashley’s inner thigh near her vagina. [Rodriguez] “said something
2
came over him and he decided to touch her, and he touched her inner thigh for
approximately one to two minutes.” Ashley woke up and began to cry. [Rodriguez] said
“it’s not like I got on top of her and covered her mouth.” (Italics omitted.) The detective
had not told [Rodriguez] about Ashley’s allegation that he had done those things.
Anthony Urquiza, Ph.D., a licensed psychologist, testified as an expert on [Child
Sexual Abuse Syndrome (“CSAAS”)]. Dr. Urquiza noted that he was not rendering an
opinion about whether a particular child was molested or whether a particular individual
perpetrated an act of child molestation. The witness further noted that he had not
interviewed Ashley or reviewed the police reports in the case.
Dr. Urquiza explained that CSAAS “is a means to describe what commonly or
typically happens with a child who has been sexually abused and to dispel any
misunderstanding, misconceptions that therapists would have.” To that end, CSAAS
describes five categories of behaviors commonly engaged in by victims of child sexual
abuse: secrecy; helplessness; entrapment and accommodation; delayed and unconvincing
disclosure; and retraction or recantation. CSAAS is not a diagnostic tool and does not
predict that every victim of child sexual abuse will exhibit all five categories of reactions.
Dr. Urquiza explained that the general public has “some misperceptions” about
child sexual abuse. This is because “[m]ostly what people hear tends to be the more
sensationalistic things that hit the media or newspaper or some television show.”
On cross-examination, Dr. Urquiza acknowledged that false allegations of sexual
abuse do occur. He also admitted that CSAAS is premised on the assumption that
persons who report being sexually abused as a child are telling the truth.
Defense Evidence
Ashley’s father testified that he did not recall anything unusual about her when
walking her home from the sleepover. She did not mention anything about what had
happened. And, Ashley did not appear to behave unusually the next day either.
Ashley’s friend, Antonia, testified that she asked Ashley why she suddenly wanted
to go home from the sleepover. Ashley replied that she just wanted to go home. Antonia
did not observe anything unusual about Ashley that night or the next day at school.
Ashley did not stop coming over.
Blanca testified that she and Ashley remained friends until Ashley moved away
from the apartment complex several months after the sleepover. Blanca did not notice
anything different about Ashley after the sleepover.
[Rodriguez] testified on his own behalf, acknowledging that he initially lied to the
detective about knowing Ashley. [Rodriguez] also stated that he lied about his initial
denials about touching Ashley on the night of the sleepover. [Rodriguez] explained that
he lied because he was afraid of going to jail. [Rodriguez] admitted telling Detective
Saika that he believed a person who had sexual intercourse with a child would be
punished by 10 years’ imprisonment, but that a person who only touched the thigh of a
child would be sentenced to 2 years.
[Rodriguez] stated that he only rubbed the victim’s thigh “close to her vagina” for
one or two minutes. [Rodriguez] admitted feeling “[a]ttracted to her.” [Rodriguez]
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testified that he touched Ashley’s clothed thigh, contradicting an earlier statement to the
detective that he might have touched her bare leg. Near the end of the interview with the
detective, [Rodriguez] said that he would “come clean” but needed to go home and talk
with his family first. To this, [Rodriguez] added: “I am not ending this at all. I will come
back. I will tell you the truth, what really happened.”
Upon conclusion of trial, a jury convicted Rodriguez of aggravated sexual assault (rape)
of a minor under the age of 14 and more than 10 years younger than defendant as well as 3 counts
of forcible lewd and lascivious acts on a child under the age of 14 years. The trial court
sentenced Rodriguez to an indeterminate prison term of 15 years to life and a determinate prison
term of 6 years. The Court additionally imposed, among other fines and fees, a $242.29 jail
booking fee and a $27.22 jail classification fee.
Through counsel, Rodriguez appealed his conviction, arguing that: 1) counsel was
ineffective for failing to object to the admission of CSAAS expert testimony; 2) the trial court
erred in instructing the jury it could consider CSAAS evidence in assessing witness believability;
3) CSAAS should be “inadmissible per se in California”; 4) the trial court violated his
confrontation rights when it precluded him from cross-examining the victim about an earlier lie
to the police; 5) the court failed to give an instruction in compliance with People v. Dewberry,
334 P.2d 852 (Cal. 1959),2 6) the cumulative effect of the errors committed warranted reversal;
7) the term imposed on Count 2 should have been stayed because it was imposed for the same
course of conduct underlying Count 1 and thus prohibited by California Penal Code § 654;3 and
2
In Dewberry, the California Supreme Court held that “when the evidence is
sufficient to support a finding of guilt of both the offense charged and a lesser included offense,
the jury must be instructed that if they entertain a reasonable doubt as to which offense has been
committed, they must find the defendant guilty only of the lesser offense.” 334 P.2d at 856.
3
That section provides that “[a]n act or omission that is punishable in different
ways by different provisions of law shall be punished under the provision that provides for the
4
8) the imposed jail booking and classification fees must be reversed because there was
insufficient evidence to establish that Rodriguez could pay or that the county actually incurred
that amount. On February 22, 2011, the Court of Appeal issued a reasoned, unpublished opinion
modifying the judgment to stay his sentence on Count 2 but otherwise affirming his convictions
in their entirety. Again proceeding through counsel, Rodriguez petitioned for review to the
California Supreme Court, asserting the unsuccessful claims he raised to the Court of Appeal.
The Supreme Court denied the petition for review without comment on June 8, 2011.
Rodriguez then filed a pro se petition for a writ of habeas corpus to the state supreme
court. He claimed that both his trial and appellate counsel were ineffective for failing to argue
that there was insufficient evidence to sustain the verdict and for failing to conduct a pre-trial
investigation into “police abuse for tampering with DNA evidence and coersion [sic].” The court
denied the habeas petition without comment on June 13, 2012. Rodriguez timely filed a Petition
for a Writ of Habeas Corpus to this Court on July 18, 2012.
II. GROUNDS/CLAIMS
In his pro se Petition, Rodriguez asserts the following nine grounds for relief: 1) trial and
appellate counsel were ineffective for failing to raise a sufficiency of the evidence claim; 2) trial
and appellate counsel were ineffective for failing to perform a pre-trial investigation into “alleged
police abuse”; 3) trial counsel was ineffective for failing to object to the admission of expert
testimony on CSAAS; 4) he was denied due process when the jury was instructed to use CSAAS
as evidence; 5) CSAAS evidence should be inadmissible in California; 6) his right to
longest potential term of imprisonment, but in no case shall the act or omission be punished
under more than one provision.” CAL. PENAL CODE § 654(a).
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confrontation was violated when the trial court would not allow him to cross-examine the victim
“as to her admitted lies” to the police; 7) the trial court erred in failing to instruct the witness in
compliance with Dewberry; 8) the cumulative effect of the errors deprived him of due process
and a fair trial; and 9) there was insufficient evidence to sustain the trial court’s order to pay
booking fees. Rodriguez also requests an evidentiary hearing on his first and second claims.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that
contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that
are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives
at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)
“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the
relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon
the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where
holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it
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cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”
Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the petition raises issues of the proper application of state law, they are
beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.
Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual federalism that the states possess primary
authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,
67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and
application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state
court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536
U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)
(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Under the AEDPA, the state court’s
findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340
(2003).
IV. DISCUSSION
1.
Ineffective Assistance of Counsel Claims (Claims 1 and 2)
A.
Strickland Standard on Habeas Review
To demonstrate ineffective assistance of counsel under Strickland v. Washington, a
defendant must show both that his counsel’s performance was deficient and that the deficient
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performance prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient performance is one
in which “counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed by the Sixth Amendment.” Id. The Supreme Court has explained that, if there is a
reasonable probability that the outcome might have been different as a result of a legal error, the
defendant has established prejudice and is entitled to relief. Lafler v. Cooper, 132 S. Ct. 1376,
1385-86 (2012); Glover v. United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at
393-95. Thus, Rodriguez must show that defense counsel’s representation was not within the
range of competence demanded of attorneys in criminal cases, and that there is a reasonable
probability that, but for counsel’s ineffectiveness, the result would have been different. See Hill
v. Lockhart, 474 U.S. 52, 57 (1985).
In reviewing ineffective assistance of counsel claims in a federal habeas proceeding:
The question “is not whether a federal court believes the state court’s
determination” under the Strickland standard “was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” And, because
the Strickland standard is a general standard, a state court has even more latitude
to reasonably determine that a defendant has not satisfied that standard.
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted); see also Runningeagle v.
Ryan, 686 F.3d 758, 775 (9th Cir. 2012).
It is through this highly deferential lens that a federal habeas court reviews Strickland
claims under the § 2254(d) standard. See Knowles, 556 U.S. at 123 (citing Yarborough v.
Gentry, 540 U.S. 1, 5-6 (2003)).
B.
Failure to Allege Sufficiency of the Evidence
Rodriguez first argues that his trial and appellate counsel were ineffective for failing to
argue that his convictions for aggravated sexual assault and one of the forcible lewd and
8
lascivious acts counts were unsupported by legally sufficient evidence. Rodriguez raised this
claim in his state habeas petition, which was summarily denied.
This Court cannot find deficient performance by either trial or appellate counsel because
there was sufficient evidence to support jury verdicts on both counts. As articulated by the
Supreme Court in Jackson, the constitutional standard for sufficiency of the evidence is whether,
“after viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (emphasis in the original); see also McDaniel v. Brown, 558
U.S. 120, 132-33 (2010) (reaffirming this standard). In this case, the victim’s testimony
established the components of the alleged offenses. Under California law, the victim’s testimony
was sufficient evidence for Rodriguez’s convictions. See CALCRIM No. 1190 (“Conviction of a
sexual assault crime may be based on the testimony of a complaining witness alone.”).
Rodriguez contends that the victim’s testimony was largely fabricated. But “under
Jackson, the assessment of the credibility of witnesses is generally beyond the scope of review.”
Schlup v. Delo, 513 U.S. 298, 330 (1995); Bruce v. Terhune, 376 F.3d 950, 957-58 (9th Cir.
2004). Rodriguez also asserts in this claim that trial counsel was ineffective for failing to crossexamine the victim regarding her sexual relations with an adult boyfriend. However, the record
indicates that trial counsel attempted to cross-examine the victim as to this issue but that the trial
court properly prohibited the request under California’s Rape Shield Law.
Rodriguez likewise contends that it was implausible that the abuse could have occurred
because his cousin was in the room at the time. But the Ninth Circuit has found reasonable under
Jackson a state court’s determination that a sexual assault conviction was supported by legally
9
sufficient evidence where the victim was allegedly molested while sleeping in bed with several
other children. See Bruce, 376 F.3d at 957-58.
Because Rodriguez fails to advance any arguments that would allow this Court to find
that the challenged convictions were not supported by legally sufficient evidence, Rodriguez
cannot show that either of his counsel were ineffective for making these arguments. See
Lockhart v. Fretwell, 506 U.S. 364, 374 (1993) (O’Connor, J., concurring) (failing to raise a
meritless objection cannot constitute prejudice under a Strickland ineffective assistance of
counsel claim); Jones v. Barnes, 463 U.S. 745, 751-52 (1983) (appellate counsel does not have
an obligation to raise every nonfrivolous argument); Miller v. Keeney, 882 F.2d 1428, 1434-35
(9th Cir. 1989) (appellate counsel’s failure to raise a weak issue did not constitute ineffective
counsel).
C.
Failure to Argue that Confession was Coerced
Rodriguez next argues that his trial and appellate counsel were ineffective for failing to
perform a “pre-trial investigation” as to Rodriguez’s “alleged police abuse.” The essence of
Rodriguez’s claim appears to be that his trial counsel should have moved to exclude his
admission on the ground that it was coerced and that his appellate counsel was ineffective for
failing to raise this issue on appeal. Rodriguez also raised this claim in his state habeas petition,
which was summarily denied.
At trial, Detective Anthony Saika testified on direct examination as follows:
Q
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Q
A
Prior to leaving the interview room, did you say anything to [Rodriguez]?
Yes.
What did you say?
I posed two questions to him because we were talking about Ashley and her
allegations and I said, is there—the first question was: Is there any reason why
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Q
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Ashley would specifically pick you out of a line-up and say that you are her
perpetrator?
And question No. 2 was: Is there any reason why your DNA would be found on
her body or clothing?
What was the [Rodriguez’s] response?
He said no.
Had there been DNA evidence collected from Ashley’s body or clothing?
No.
How would you characterize your comment to the defendant about DNA being
found?
I used what is called a rouse.
Have you received training as part of your job as a detective in the Child Abuse
Unit on how to conduct interviews and interrogations?
Yes.
As part of your training, are you given instruction on the use of a rouse?
Yes.
Can you explain to the jury what that entails?
A rouse is like – it’s a tool that investigators use to elicit a possible confession
from a suspect. Oftentimes suspects are not going to tell you. They are not going
to come right out and admit guilt.
As an investigator, this is a tool we use. We have one shot sometimes to
interview a suspect, and they are not always truthful.
I like to compare the use of a rouse—well, let’s back up.
I will give you some examples of a rouse besides this example here. It is like you
have two suspects in a crime, and you have got one suspect in one interview room
and you have another suspect in another interview room.
You have two suspects and you go to one suspect and tell them your co-defendant,
your friend, is now ratting you out; and he is telling us everything so now is your
opportunity.
That is one example we can use.
Another example is telling a suspect we found your fingerprints on a counter of a
burglary; and he denies everything and so getting back to what I like to compare
this to, I like to compare an interview and interrogation as a game of poker.
I am not going to show my complete hand to a suspect I am interrogating or
interviewing. I am not going to show him my entire hand and at times I may
bluff.
I may use some type of trick or device and sometimes a suspect, he is going to call
my bluff. He is not going to say anything, and he is going to stick to his story and
that’s it.
The second part of that is, or the suspect, he is going to fold his hand. He is going
to tell me a little bit about what he did. He is not going to tell me everything, you
know.
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Q
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There is an array of things that a suspect may tell you as part of his confession. I
have seldom had an experience where they have told me everything.
Detective Saika, when you employed this rouse, after you did, did you leave the
interview room?
Yes.
When you left the interview room, is the interview still being videotaped?
Yes.
What did you do when you left the room?
Went to the monitoring room where I could still see Mr. Rodriguez in the
interview room.
What did you see him do in the interview room?
He was rubbing his face and he said the words, “Jesus Christ.”
Now, did you then go back inside the room and start your interview again.
Yes.
When you went back into the interview room, did you continue to ask [Rodriguez]
about Ashley and anything that may have happened in the apartment?
Yes.
What did he tell you?
He first denied anything again, that he didn’t know her, didn’t know who she was
and then he subsequently said that he remembered her now and had gone into the
living room where she was at and placed a blanket on her.
Did you then ask [Rodriguez] what happened when he placed the blanket on
Ashley?
Yes.
What did he tell you?
He said after he placed a blanket on Ashley, she woke up scared and he
apologized to her.
Did [Rodriguez] at that point in the interview admit touching Ashley in an
inappropriate manner?
No.
Did you employ a second rouse during that interview?
Yes.
What was the second rouse?
The first question before the break was: Is there any reason why your DNA may
be found on her clothing or body?
To follow up with that, I asked him—I mean, I told him that there was DNA
evidence; and I asked him if he would submit to what’s called buccal swabs to
obtain your saliva, the DNA off your saliva from your mouth.
When you asked [Rodriguez] if he was willing to do that, what was his response?
He was—consented to having his mouth swabbed for DNA. I’m sorry.
Later in the interview. Did [Rodriguez] say anything else about his interactions
with Ashley that evening?
12
A
After the interview progressed—this interview took, I want to say, approximately
two and-a-half hours. You know, it went from, I don’t know Ashley, I don’t know
who she is. I don’t recognize her photo to then it went to okay. I know her. I
remember that night. I was—I was in the living room and placed a blanket on
her.
And then as we were talking and I was trying to appeal to his personal side of this
incident, he said that, okay, he touched her inner thigh.
The Due Process Clause forbids the use of a defendant’s confession if it is obtained
through police coercion. Colorado v. Connelly, 479 U.S. 157, 170 (1986); Brown v. Mississippi,
297 U.S. 278, 285-86 (1936). “A statement is not ‘compelled’ within the meaning of the Fifth
Amendment if an individual ‘voluntarily, knowingly and intelligently’ waives his constitutional
privilege.” Colorado v. Spring, 479 U.S. 564, 573 (1987). A confession is involuntary if
coerced “either by physical intimidation or psychological pressure.” United States v. Crawford,
372 F.3d 1048, 1060 (9th Cir. 2004) (citation omitted). The question is therefore whether the
police used coercive activity to undermine the suspect’s ability to exercise his free will. Derrick
v. Peterson, 924 F.2d 813, 818 (9th Cir. 1990); see also Arizona v. Fulminante, 499 U.S. 279,
287-88 (1991) (confession was coerced where there was a credible threat of physical violence if
defendant did not confess); Henry v. Kernan, 197 F.3d 1021, 1026-27 (9th Cir. 1999) (“The test
of voluntariness is well established: ‘Is the confession the product of an essentially free and
unconstrained choice by its maker?’” (citation omitted)).
“Misrepresentations linking a suspect to a crime or statements which inflate the extent of
evidence against a suspect do not necessarily render a confession involuntary.” Amaya-Ruiz v.
Stewart, 121 F.3d 486, 495 (9th Cir. 1997) (misrepresentation to suspect that he had been
identified did not make confession coerced); see also Frazier v. Cupp, 394 U.S. 731, 737-39
13
(1969) (confession voluntary even though officer falsely told suspect his co-conspirator had
confessed). As the Ninth Circuit has noted:
[T]rickery is not automatically coercion. Indeed, the police commonly engage in
such ruses as suggesting to a suspect that a confederate has just confessed or that police
have or will secure physical evidence against the suspect. While the line between ruse
and coercion is sometimes blurred, confessions procured by deceits have been held
voluntary in a number of situations.
Crawford, 372 F.3d at 1061.
In this case, Rodriguez claims that trial counsel was ineffective for not moving to exclude
his confession to the police that he touched the victim on her inner thigh. But in his Petition
Rodriguez admits the “inappropriate touching of Ashley T.” and “concedes . . . [the lewd and
lascivious acts charges], as he confessed to the police detective conducting [h]is initial interview
that [h]e felt bad for touching Ashley T. on [h]er thigh and inner parts of [h]er legs.” Because he
does not claim that the confession was false, Rodriguez cannot prove that his admission to the
police should have been suppressed. See People v. Chutan, 85 Cal. Rptr. 2d 744, 747 (Cal. Ct.
App. 1999) (“So long as a police officer’s misrepresentations or omissions are not of a kind
likely to produce a false confession, confessions prompted by deception are admissible in
evidence. Police officers are thus at liberty to utilize deceptive stratagems to trick a guilty person
into confessing. The cases from California and federal courts validating such tactics are legion.”
(internal citations omitted)). Consequently, Rodriguez cannot show that his trial counsel was
ineffective for failing to move for suppression, see Lockhart, 506 U.S. at 374, or that his
appellate counsel was ineffective for failing to argue it on appeal, see Jones, 463 U.S. at 751-52;
Miller, 882 F.2d at 1434-35. Rodriguez thus cannot prevail on these ineffective assistance of
counsel claims.
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D.
Evidentiary Hearing
Rodriguez also requests that this Court grant him an evidentiary hearing on these two
ineffective assistance claims. Rodriguez fails, however, to specify what evidence he wishes to
present for each claim. A district court may not hold an evidentiary hearing on a claim for which
a petitioner failed to develop a factual basis in state court unless the petitioner shows that: (1) the
claim relies either on (a) a new rule of constitutional law that the Supreme Court has made
retroactive to cases on collateral review, or (b) a factual predicate that could not have been
previously discovered through the exercise of due diligence, and (2) the facts underlying the
claim would be sufficient to establish by clear and convincing evidence that, but for
constitutional error, no reasonable fact finder would have found the petitioner guilty of the
underlying offense. 28 U.S.C. § 2254(e)(2).
Where the failure to develop the factual basis for the claim in the state court proceedings
is not attributable to the petitioner, to receive an evidentiary hearing, the petitioner must make a
colorable claim for relief and meet one of the factors set forth in Townsend v. Sain, 372 U.S. 293
(1963). Insyxiengmay v. Morgan, 403 F.3d 657, 670-71 (9th Cir. 2005). In Townsend, the
Supreme Court concluded that a federal habeas petitioner is entitled to an evidentiary hearing on
his factual allegations if: (1) the merits of the factual dispute were not resolved in the state
hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3)
the fact-finding procedure employed by the state court was not adequate to afford a full and fair
hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts
were not adequately developed at the state-court hearing; or (6) for any reason it appears that the
state trier of fact did not afford the habeas applicant a full and fair fact hearing. Id. at 670
15
(quoting Townsend, 372 U.S. at 313), overruled in part by Keeney v. Tamayo-Reyes, 504 U.S. 1
(1992).
As discussed above, Rodriguez has failed to assert a colorable claim for relief as to either
of these claims. Because he does not cite to new laws or underlying facts that were not
developed on the record before the state courts, he also has failed to satisfy his burden of proof
under 28 U.S.C. § 2254(e)(2). Accordingly, Rodriguez’s request for an evidentiary hearing on
these claims also must be denied.
2.
CSAAS Claims (Claims 3, 4, and 5)
Rodriguez additionally brings a number of claims relating to the trial court’s admission of
CSAAS evidence. In general, CSAAS “describes various emotional stages, experienced by
sexually abused children, that may explain their sometimes piecemeal and contradictory manner
of disclosing abuse.” Brodit v. Cambra, 350 F.3d 985, 991 (9th Cir. 2003).
Rodriguez argues in claim 5 that CSAAS “should be inadmissible as it is in many other
states of the land, as it does not find whether the alleged victim has been sexually abused.”
Although Rodriguez recognizes that California law admits CSAAS evidence for certain limited
purposes, he urges this court to break with such authority and to change California law to follow
the rule in other states and jurisdictions that such CSAAS evidence is “inadmissible for any
purpose.” Although California courts have recognized the problems identified by Rodriguez and
other states regarding CSAAS evidence, see People v. Patino, 32 Cal. Rptr. 2d 345, 349 (Cal. Ct.
App. 1994); People v. Housley, 8 Cal. Rptr. 2d 431, 438 (Cal. Ct. App. 1992), those courts have
also found such evidence to be constitutionally permissible with proper admonishments to the
16
jury regarding the limits of such evidence, Patino, 32 Cal. Rptr. 2d at 349; Housley, 8 Cal. Rptr.
2d at 439.
Moreover, the Ninth Circuit has noted that expert testimony about CSAAS has been
admitted “in federal child-sexual-abuse trials, when the testimony concerns general
characteristics of victims and is not used to opine that a specific child is telling the truth.”
Brodit, 350 F.3d at 991 (citing United States v. Bighead, 128 F.3d 1329 (9th Cir. 1997) (per
curiam); United States v. Antone, 981 F.2d 1059 (9th Cir.1992)). The Ninth Circuit has found
that this type of general testimony “merely assist[s] the trier of fact in understanding the
evidence; it [does] not improperly bolster the particular testimony of the child victim.” Antone,
981 F.2d at 1062. In Brodit, a habeas case involving a similar claim, the Ninth Circuit found that
where the trial court instructed the jury that expert testimony concerning CSAAS could not be
considered as proof that the sexual abuse occurred, the petitioner did not assert a violation of
clearly established federal law in the admission of the testimony. Brodit, 350 F.3d at 991. Prior
to deliberations, the trial court made the proper admonishments here:
You have heard testimony from Anthony Urquiza regarding child sexual abuse
accommodation syndrome.
Anthony Urquiza’s testimony about child sexual abuse accommodation syndrome
is not evidence that [Rodriguez] committed any of the crimes against him.
You may consider this evidence only in deciding whether or not Ashley T.’s
conduct was not inconsistent with the conduct of someone who has been molested, and in
evaluating the believability of her testimony.
Because Urquiza’s expert testimony was not admitted to prove the ultimate question of
Rodriguez’s guilt, Rodriguez cannot show that its admission violated clearly established federal
law. Brodit, 350 F.3d at 991. And because the California law fully comports with federal law on
this point, this Court cannot say that CSAAS evidence should be per se inadmissible in
17
California. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (A “state court’s interpretation of
state law, including one announced on direct appeal of the challenged conviction, binds a federal
court sitting in habeas corpus.”).
Rodriguez likewise argues in claim 3 that his trial counsel was ineffective for failing to
object to the admission of the CSAAS evidence. Rodriguez argues in his Petition, as he did on
direct appeal, that the only category of CSAAS evidence relevant in his case concerned the
victim’s delay in reporting the crime. The appellate court rejected this claim on direct appeal,
concluding that CSAAS evidence was relevant with respect to four of its five categories:
Delayed Disclosure
Ashley did not report the rape for approximately five years until she spoke to a
police officer after walking out on an argument with her father. As [Rodriguez]
acknowledges, CSAAS evidence regarding delayed disclosure was relevant in explaining
that victims of childhood sexual abuse often wait years before reporting the crimes.
Secrecy
Ashley did not tell her father or Antonia of the rape on the night that it occurred.
Neither did she tell anyone else, other than her friend Marcello, about the rape for several
years. Thus, testimony regarding secrecy was relevant. To be relevant, evidence does not
need to be overwhelming or even strong. Instead, evidence is relevant and admissible so
long as “‘it tends to prove the issue before the jury.’” Thus, Dr. Urquiza’s testimony
regarding victims’ secrecy about childhood sex abuse was relevant and admissible.
Helplessness
During the attack, Ashley was overpowered by [Rodriguez]. Following the attack,
she believed [Rodriguez’s] threats that he would hurt or kill her if she told anyone about
the rape. Ashley testified that [Rodriguez’s] threats effectively discouraged her from
immediately reporting the rape. Thus, Dr. Urquiza’s testimony regarding the helplessness
category of CSAAS was relevant and admissible.
Entrapment and Accommodation
This category refers to the tendency of a victim of child sexual abuse to shut down
feelings regarding the molestation. Here, the evidence showed that Ashley’s father,
Antonia, and Blanca all failed to observe any unusual behavior by Ashley following the
attack. Evidence regarding the common method of coping by victims in the form of
18
ignoring and hiding their feelings about the attack was therefore relevant and admissible
in this case.
Retraction
Retraction represented the only category of reactions described by CSAAS that
was not exhibited by Ashley. However, the testimony regarding recantation by a small
percentage of child sexual abuse victims was brief—encompassing only a single question
and answer. Any error in the admission of this small amount of noninflammatory
evidence was harmless.
The determination by the state appellate court that CSAAS evidence was relevant to four
of the five CSAAS categories and that admission with regard to the fifth category was harmless
error neither contravenes or unreasonably applies federal law. Rodriguez’s counsel therefore
could not have been ineffective for failing to object to the admission of the CSAAS evidence to
the four categories because doing so would have been futile or without consequence. See
Lockhart, 506 U.S. at 374.
Finally, Rodriguez contends in claim 4 that the trial court erred in instructing the jury
with CALCRIM No. 1193. Rodriguez asserts that the instruction improperly bolstered the
victim’s credibility and “denied [him of] his right to have each element of each charge proven
true beyond a reasonable doubt.” But as discussed supra, that instruction, set forth above, meets
the requirements under California case law that the admission of CSAAS evidence be
accompanied by a limiting instruction informing the jury that the expert’s testimony should not
be used to determine whether the victim’s molestation claim is true, but only to decide whether
the victim’s reactions are consistent with having been molested. See Patino, 32 Cal. Rptr. 2d at
349; Housley, 8 Cal. Rptr. 2d at 439. This limiting instruction also ensured that the jury
considered the CSAAS evidence as required by Brodit, 350 F.3d at 991. Thus, the jury
19
instruction, rather than violating Rodriguez’s constitutional rights, protected his rights by
properly limiting the jury’s use of the CSAAS evidence.
Rodriguez nonethless argues that the instruction violated his due process rights because it
“erroneously instructed [the jury] that it could use the evidence of CSAAS in assessing her
believability as a witness.” However, because Rodriguez put the victim’s credibility in issue, it
was permissible for the jury to use this evidence to evaluate her credibility. See Jammal v. Van
de Kamp, 926 F.2d 918, 920 (9th Cir. 1991); see also People v. McAlpin, 812 P.2d 563, 569 (Cal.
1991) (CSAAS evidence permissible to rehabilitate witness’s credibility when it has been
questioned by defendant). Rodriguez has failed to show that the given instruction was
undesirable, erroneous, universally condemned, or that it violated a constitutional right. See
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Accordingly, Rodriguez cannot prevail on
any of his CSAAS claims.
3.
Confrontation Claim (Claim 6)
Rodriguez likewise asserts that the trial court violated his rights to confrontation and to
present a defense when it refused to allow him to cross-examine the victim about lying to the
police that she was a virgin. On direct appeal, the appellate court recounted the following facts
underlying this claim:
Prior to trial, defense counsel moved to impeach Ashley with a statement to the
police—made at the time she first reported the rape by [Rodriguez]—to the effect that she
was a virgin. The following colloquy ensued:
“THE COURT: [¶] . . . [¶] Let me ask you, Mr. Ruiz [defense counsel]: What
specifically are you proposing to do if the Court gives you permission?
“MR. RUIZ: Ask the victim in this case why she lied to law enforcement about
not being a virgin when she was asked that question; and she responded initially
with, yes, I am a virgin. [¶] She later told Detective Saika—I believe it was—that,
20
in fact, she lied about that, that she, in fact, was not a virgin so that was the lie that
she told law enforcement. I think that’s important.
“THE COURT: What is the answer that you expect to elicit when you ask her why
she lied?
“MR. RUIZ: Oh, I believe her answer to the detective was that she had other
boyfriends that were over the age of 18 and somehow, I think by implication, she
wanted to protect them.”
The prosecutor objected to the proposed cross-examination, arguing that the
defense had not filed a written motion as required by Evidence Code section 782FN1 and
that the sexual conduct of the victim was irrelevant and unduly prejudicial.
FN1. Evidence Code section 782 provides, in pertinent part: “(a) . . . [I]f evidence
of sexual conduct of the complaining witness is offered to attack the credibility of
the complaining witness under Section 780, the following procedure shall be
followed: [¶] (1) A written motion shall be made by the defendant to the court and
prosecutor stating that the defense has an offer of proof of the relevancy of
evidence of the sexual conduct of the complaining witness proposed to be
presented and its relevancy in attacking the credibility of the complaining witness.
[¶] (2) The written motion shall be accompanied by an affidavit in which the offer
of proof shall be stated. The affidavit shall be filed under seal and only unsealed
by the court to determine if the offer of proof is sufficient to order a hearing . . . .”
The prosecution then stated its intent to elicit testimony that Ashley reported the
rape without reference to the fact that she made the disclosure to the police after getting
into an argument with her father about her virginity. Defense counsel objected: “I think
we are getting into an area where I am not going to be able to effectively cross-examine
this alleged victim, Your Honor.” Defense counsel argued “what prompted that argument
[between Ashley and her father] is, in part, the reason why she made up many of these
allegations against [Rodriguez].”
The court allowed evidence to be presented regarding the argument between
Ashley and her father, including the fact that Ashley’s father accused her of not being a
virgin. However, the court excluded evidence regarding her lie to the detective about
being a virgin. In so ruling, the trial court explained “that does implicate [Evidence Code
section] 782, risk of confusion of issues. It has less probative value, in that she did
eventually disclose the sexual conduct. [¶] So I think the probative value is greatly
undercut by her admission that she had sexual contact with a boyfriend over the age of
18.”
The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
21
him . . . .” U.S. CONST. amend. VI. It is well settled that, under the Sixth Amendment, an
accused has the right to present witnesses, testimony and other evidence in his defense. See
Washington v. Texas, 388 U.S. 14, 19 (1967). However, “[t]he accused does not have an
unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible
under standard rules of evidence.” Taylor v. Illinois, 484 U.S. 400, 409-10 (1988). States have
considerable latitude under the Constitution to establish rules excluding evidence from criminal
trials. Holmes v. S. Carolina, 547 U.S. 319, 324 (2006). “Thus, a trial judge may exclude or
limit evidence to prevent excessive consumption of time, undue prejudice, confusion of the
issues, or misleading the jury. The trial judge enjoys broad latitude in this regard, so long as the
rulings are not arbitrary or disproportionate.” Menendez v. Terhune, 422 F.3d 1012, 1033 (9th
Cir. 2005) (citations omitted); see Montana v. Egelhoff, 518 U.S. 37, 42-43 (1996) (holding due
process rights are not violated by exclusion of relevant evidence where probative value is
outweighed by danger of prejudice or confusion).
Federal Rule of Evidence 403, the federal counterpart to California Evidence Code
section 352, permits the exclusion of evidence if its probative value is “substantially outweighed
by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” “A district court is accorded a
wide discretion in determining the admissibility of evidence under the Federal Rules. Assessing
the probative value of [the proffered evidence], and weighing any factors counseling against
admissibility is a matter first for the district court’s sound judgment under Rules 401 and
403 . . . .” United States v. Abel, 469 U.S. 45, 54 (1984); see Boyd v. City and Cnty. of San
Francisco, 576 F.3d 938, 948 (9th Cir. 2009). California employs a similar rule. See People v.
22
Harris, 118 P.3d 545, 565 (Cal. 2005) (“We review for abuse of discretion a trial court’s rulings
on the admissibility of evidence.”).
In Wood v. Alaska, 957 F.2d 1544, 1549-50 (9th Cir. 1992), the Ninth Circuit laid out a
two-part inquiry to determine whether a petitioner’s Sixth Amendment rights are violated by
restricted cross-examination. The first inquiry is whether the evidence is relevant. See id. at
1550. If the evidence is relevant, the next inquiry is whether other legitimate interests outweigh
the defendant’s interest in presenting the evidence. See id. In Wood, the Ninth Circuit explained
that there will not be a Sixth Amendment violation “so long as the jury has ‘sufficient
information’ upon which to assess the credibility of a witness.” Id. (citation omitted).
Under these guidelines, this Court cannot find that the trial court’s restriction on the
proposed cross-examination was either unreasonable or contrary to federal law. See Perry v.
Rushen, 713 F.2d 1447, 1453 (9th Cir. 1983) (“Evidence of little importance, whether merely
cumulative or of little probative value, will almost never outweigh the state interest in efficient
judicial process.”). As the appellate court concluded:
Here, the trial court did not err in concluding that the victim’s possible history of
sex with boyfriends did not have any relevance to the question of whether defendant
raped her years earlier. The trial court noted that Ashley’s initial lie to the police did have
some minimal relevance with respect to her credibility, but that delving into the issue was
more prejudicial and confusing than probative. And, as the trial court noted, Ashley’s
retraction of her initial lie to the police and explanation for why she lied further undercut
the probative value of the cross-examination proposed by the defense.
The Supreme Court’s decision in Davis v. Alaska, 415 U.S. 308 (1974), does not compel
a different conclusion. In Davis, the petitioner had been convicted of grand larceny and burglary
following a trial in which the trial judge prevented defense counsel from cross-examining a key
witness concerning his adjudication as a juvenile delinquent relating to a burglary and his
23
probation status at the time of the events. Davis, 415 U.S. at 309-11. Defense counsel sought to
introduce the witness’s juvenile record on cross-examination not as a general impeachment of the
witness’s character but rather to show bias and prejudice against the defendant because the
witness, who was then on probation, might have identified the defendant out of fear or concern
that the police might believe he had committed the crime in issue, thereby jeopardizing his
probation. Davis, 415 U.S. at 311. Following the affirmance of petitioner’s convictions by the
Alaska Supreme Court, the United States Supreme Court reversed and remanded, holding that
the jurors were entitled to have the benefit of the defense theory before them so that they could
make an informed judgment as to the weight to place on the witness’s testimony. Id. at 317. In
particular, the court ruled that counsel should have been permitted to ask the witness not only
“whether he was biased,” but also “why [he] might have been biased or otherwise lacked that
degree of impartiality expected of a witness at trial.” Id. at 318. The Davis Court emphasized
that “the exposure of a witness’ motivation in testifying is a proper and important function of the
constitutionally protected right of cross-examination.” Id. at 316-17.
The proffered evidence here, however, does not share the probative value of the evidence
at issue in Davis. As the appellate court noted, “the victim’s possible history of sex with
boyfriends did not have any relevance to the question of whether defendant raped her years
earlier ,” and thus Rodriguez’s contention that her sexual history with other boyfriends motivated
her to fabricate the charges against Rodriguez was pure speculation. Moreover, the proffered
evidence, unlike the evidence at issue in Davis, intrudes on the privacy rights of the victim which
the California legislature has sought to protect through the enactment of the state’s Rape Shield
Law. Therefore the proper question in this case is whether it was “objectively unreasonable” for
24
the California Court of Appeal to conclude that the trial court struck a proper balance between
the privacy of the victim and Rodriguez’s Sixth Amendment right to examine the victim’s
motivation for her testimony. This Court cannot say that the decision was “objectively
unreasonable” given the minimal relevance that the lie had on her credibility. Accordingly,
§ 2254(d) of the AEDPA precludes this court from granting habeas relief on this claim.
Furthermore, the denial of a defendant’s opportunity to impeach a witness is subject to
harmless error analysis. See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); Winzer v. Hall,
494 F.3d 1192, 1201 (9th Cir. 2007) (“Violation of the Confrontation Clause is trial error subject
to harmless-error analysis . . . because its effect can be quantitatively assessed in the context of
other evidence presented to the jury.” (citations and internal quotation marks omitted)). A
petitioner is therefore not entitled to relief unless he can establish that the trial court’s error “had
substantial and injurious effect or influence in determining the jury’s verdict.” See Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993). Rodriguez cannot satisfy that burden, however, because
he fails to show that he was deprived of a fair opportunity to cross-examine and impeach the
victim. The court allowed Rodriguez to cross-examine the victim about her argument with her
father—which the defense contended prompted the victim to make up allegations about
Rodriguez—including the fact that the victim’s father accused her of not being a virgin. Even
assuming that the exclusion of the victim’s statement to the police was improper, any purported
error would be deemed harmless under these circumstances. Rodriguez is therefore not entitled
to relief on this claim.
25
4.
Instructional Error (Claim 7)
Rodriguez next argues that the trial court erred by giving the standard CALCRIM
instruction No. 3517 because it “does not convey the Dewberry principle to the jury because it
does not address the question of how to choose between the greater and lesser offenses. The
instruction does not tell the jury that if they have a reasonable doubt as to whether the defendant
committed the greater or lesser offense, they must find him guilty of only the lesser offense.”
The essence of Rodriguez’s argument is that the jurors should have been instructed that, if they
had reasonable doubt as to whether Rodriguez committed the lewd and lascivious act with force,
the jury must find him guilty of lewd and lascivious conduct rather than forcible lewd and
lascivious conduct.
The trial court gave the jury the following instruction pursuant to CALCRIM No. 3517:
If all of you find the defendant is not guilty of a greater crime, you may find him
guilty of a lesser crime, if you are convinced beyond a reasonable doubt that the
defendant is guilty of that lesser crime. A defendant may not be convicted by both a
greater and a lesser crime for the same conduct.
Lewd and lascivious act upon a child under age 14 years is a lesser crime with
regard to lewd or lascivious act by force or fear upon a child under 14 years as charged in
Count Three.
It is up to you to decide the order in which you consider each crime and the
relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have
found the defendant not guilty of the corresponding greater crime.
For any charge with a lesser crime, you will receive a form for indicating your
verdict on both the greater and the lesser crime. The greater crime is listed first. When
you have reached a verdict, have the foreperson complete the form, sign it, and date it.
Follow these directions before writing anything on the form:
First, if all of you agree that the People have proved beyond a reasonable doubt
that the defendant is guilty of the greater crime as charged, check the box for guilty for
that crime and sign, date, and return the form. Do not check anything for the lesser crime.
Two, if all of you cannot agree whether the People have proved beyond a
reasonable doubt that the defendant is guilty of the greater crime as charged, inform me
only that you cannot reach an agreement and do not write anything on the verdict form.
26
Three, if all of you agree that the People have not proved beyond a reasonable
doubt that the defendant is guilty of the greater crime and you also agree that the People
have proved beyond a reasonable doubt that he is guilty of the lesser crime, check the box
for not guilty for the greater crime and check the box for guilty of the lesser crime. You
must not check anything for the lesser crime unless you have checked not guilty for the
greater crime.
Four, if all of you agree that the People have not proved beyond a reasonable
doubt that the defendant is guilty of either the greater or the lesser crime, check the box
for not guilty for both the greater and the lesser crime.
Five, if all of you agree that the People have not proved beyond a reasonable
doubt that the defendant is guilty of the greater crime but all of you cannot agree on the
verdict for the lesser crime, check the box for not guilty of the greater crime and then
sign, date, and return the form. Do not check anything for the lesser crime and inform me
only that you cannot reach an agreement about that crime.
On direct appeal, Rodriguez argued that the jury should have been instructed:
If you are convinced beyond a reasonable doubt and unanimously agree that the
defendant committed a lewd and lascivious act on a child under 14 years of age, but you
have a reasonable doubt whether that act was committed by the use of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury to the child, you must
give the defendant the benefit of the doubt and find him not guilty of count 3 and guilty of
the lesser offense of non-forcible lewd and lascivious conduct on a child under 14 years
of age.
The appellate court rejected the claim, noting that “CALCRIM No. 3517, as given, did
not violate the California Supreme Court’s decision in Dewberry because it did not allow
[Rodriguez] to be convicted of any offense for which a unanimous jury failed to agree on his
guilt.”
A challenged instruction violates the federal constitution if there is a “reasonable
likelihood that the jury has applied the challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380
(1990). The question is whether the instruction, when read in the context of the jury charges as a
whole, is sufficiently erroneous to violate the Fourteenth Amendment. Francis v. Franklin, 471
27
U.S. 307, 309 (1985). This Court must also assume in the absence of evidence to the contrary
that the jury followed those instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000);
Richardson v. Marsh, 481 U.S. 200, 206 (1987) (noting the “almost invariable assumption of the
law that jurors follow their instructions”); see Francis, 471 U.S. at 323-24 & n.9 (discussing the
subject in depth).
It is well established that not only must the challenged instruction be erroneous but it
must violate some constitutional right, and it may not be judged in artificial isolation but must be
considered in the context of the instructions as a whole and the trial record. Estelle, 502 U.S. at
72. This Court must also bear in mind that the Supreme Court has admonished that the inquiry is
whether there is a reasonable likelihood that the jury applied the challenged instruction in a way
that violates the constitution and that the category of infractions that violate “fundamental
fairness” is very narrowly drawn. Id. at 72-73. “Beyond the specific guarantees enumerated in
the Bill of Rights, the Due Process clause has limited operation.” Id. at 73 (citation omitted).
Where the defect is the failure to give an instruction, the burden is even heavier because an
omitted or incomplete instruction is less likely to be prejudicial than an instruction that misstates
the law. See Henderson v. Kibbe, 431 U.S. 145, 155 (1977). In those cases, the inquiry is
whether the trial court’s refusal to give the requested instruction “so infected the entire trial that
the resulting conviction violates due process.” See id. at 156-57; Estelle, 502 U.S. at 72.
As an initial matter, the California Supreme Court’s decision in Dewberry relied entirely
on state law, without any reference to federal constitutional rights. See Roa v. Holland, No.
SACV 12-1986, 2013 WL 2359658, at *9 (C.D. Cal. May 20, 2013) (citing Dewberry, 334 P.2d
at 856). Moreover, the United States Supreme Court has never mandated that federal due process
28
requires a comparable instruction. Rodriguez’s challenge to the jury instruction on the basis of
Dewberry therefore raises only state law and thus does not state a cognizable federal habeas
claim. Estelle, 502 U.S. at 67-68, 71-72 (federal habeas corpus relief is not available for
violations of state law or for alleged error in the interpretation or application of state law).
Nor can Rodriguez show that the omission of a Dewberry instruction “so infected the
entire trial that the resulting conviction violates due process.” Estelle, 502 U.S. at 72. As the
appellate court found, “CALCRIM No. 3517 properly instructed the jury to convict [Rodriguez]
on the lesser included charge only if it unanimously agreed that he was not guilty of the greater
offense but was guilty of the lesser offense.” There is no reasonable likelihood that the jury
failed to understand that, if it had reasonable doubt about whether the lewd and lascivious act
was forcible or non-forcible, it should find Rodriguez guilty of non-forcible lewd and lascivious
conduct. It must be presumed that the jury followed its instructions and found that Rodriguez
had committed a forcible lewd and lascious act on a child under 14 years of age because it found,
beyond a reasonable doubt, that the prosecution had proved that Rodriguez used force in the act.
See Weeks, 528 U.S. at 234. Moreover, CALCRIM No. 3517 contains similar content to
CALJIC No. 17.10, which California courts have found to comply with Dewberry. See Roa,
2013 WL 2359658 at *9 (citing People v. Barajas, 15 Cal. Rptr. 3d 858 (Cal. Ct. App. 2004)).
Rodriguez’s jury instruction claim therefore must fail.
Construing Rodriguez’s pro se Petition liberally, Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam), this Court may discern that Rodriguez’s Petition additionally alleges that the
instruction as given violated his federal constitutional rights because the standard instruction
required the jury to acquit Rodriguez of the greater offense before reaching a verdict on the lesser
29
offense. In a case arising on direct review of a federal criminal prosecution under 28 U.S.C.
§ 2255, the Ninth Circuit has held that where a defendant expresses no preference between a
strict “acquittal first” instruction, requiring a jury to acquit on the greater charge before
considering the lesser included charge, and a “disagreement instruction,” directing the jury to
consider the lesser included charge if unable to reach a verdict on the greater offense, a district
court may give either instruction. United States v. Jackson, 726 F.2d 1466, 1469 (1984) (per
curiam) (noting that “either form [of instructions] may have advantages and disadvantages for the
defendant”). The Jackson court held, however, that a “disagreement instruction” should be given
if requested because such an instruction avoids the risk that a jury will resolve doubts in favor of
conviction. Id. at 1469-1470.
In this case, the jury was instructed, “It is up to you to decide the order in which you
consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser
crime only if you have found the defendant not guilty of the corresponding greater crime.”
Unlike the instruction in Jackson, the California instructions at issue here did not preclude
consideration of the lesser charges until the jurors unanimously decided to acquit Rodriguez of
the greater charges. The instructions only required the jury to acquit Rodriguez of the greater
offenses before returning a guilty verdict on the lesser included offenses. Thus, the jury
instructions did not preclude the jury’s consideration of the lesser included offenses or give the
prosecution an unfair advantage. There is therefore no basis for finding that the instruction as
given violated Rodriguez’s due process right to a fair trial. In any event, the United States
Supreme Court has never held that an “acquittal first” instruction such as California’s is
unconstitutional and so it cannot be said that the instructions as given violated any clearly
30
established Supreme Court precedent. See Brewer v. Hall, 378 F.3d 952, 955-956 (9th Cir.
2004) (California appellate court’s decision rejecting due process challenge to jury instruction
“was not contrary to or an unreasonable application of clearly established Supreme Court
precedent, because no Supreme Court case establishes that an instruction such as [the instruction
in question] violates an existing constitutional right”). Rodriguez therefore cannot prevail on any
claim that the jury instruction violated his due process rights.
5.
Cumulative Error (Claim 8)
Rodriguez next argues that the “cumulative effect of the errors” denied him due process
and a fair trial.
“While the combined effect of multiple errors may violate due process even when no
single error amounts to a constitutional violation or requires reversal, habeas relief is warranted
only where the errors infect a trial with unfairness.” Peyton v. Cullen, 658 F.3d 890, 896-97 (9th
Cir. 2011) (citing Chambers v. Mississippi, 401 U.S. 284, 298, 302-03 (1973)). Such “infection”
occurs where the combined effect of the errors had a “substantial and injurious effect or influence
in determining the jury’s verdict.” Brecht, 507 U.S. at 623 (citation omitted). In other words,
where the combined effect of individually harmless errors renders a criminal defense “far less
persuasive than it might [otherwise] have been,” the resulting conviction violates due process.
See Chambers, 401 U.S. at 294.
As discussed above, Rodriguez does not allege any claims that amount to errors of
constitutional dimension. Accordingly, he demonstrates no errors that can accumulate to a level
of a constitutional violation, and the state courts therefore did not unreasonably deny him relief
on this claim. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002).
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6.
Erroneous Imposition of Booking Fees (Claim 9)
Finally, Rodriguez contends that “[t]he fees imposed here should be stricken because
there is insufficient evidence to support an implied finding that [Rodriguez] had the ability to pay
the fees; and, there is no sufficient evidence that the amount of the fees imposed actually reflects
the costs incurred by the county.”
A petition for a writ of habeas corpus can be entertained only on the ground that the
petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a). The Ninth Circuit has held that “§ 2254(a) does not confer jurisdiction over
a habeas corpus petition raising an in-custody challenge to a restitution order.” Bailey v. Hill,
599 F.3d 976, 984 (9th Cir. 2010) (footnote omitted). “[T]he remedy that [Petitioner] seeks, the
elimination or alteration of a money judgment, does not directly impact—and is not directed at
the source of the restraint on—his liberty.” Id. at 981. Moreover, Rodriguez’s claim that the
restitution order was unauthorized by California law is a state-law claim which is beyond the
purview of this Court in a federal habeas proceeding. Swarthout, 131 S. Ct. at 863; see also Bell
v. Cone, 543 U.S. 447, 455 (2005). Rodriguez is therefore not entitled to relief on this claim.
V. CONCLUSION AND ORDER
Rodriguez is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain a
certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree
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with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,
537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the
Ninth Circuit Court of Appeals. See FED. R. APP. P. 22(b); 9TH CIR. R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: May 28, 2014.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
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