Wills v. McDonald
Filing
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MEMORANDUM OPINION and ORDER signed by Magistrate Judge Dennis M. Cota on 9/20/2018 DENYING petitioner's amended petition for a writ of habeas corpus; DECLINING to issue a certificate of appealability; and the Clerk shall enter judgment and close this file. CASE CLOSED. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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RODNEY A. WILLS,
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Petitioner,
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No. 2:15-CV-01515-DMC-P
v.
MEMORANDUM OPINION AND ORDER
KAMALA D. HARRIS, et al.,
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Respondents.
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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the written consent of all parties (Docs.
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5 and 12), this case is before the undersigned as the presiding judge for all purposes, including
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entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are petitioner’s first
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amended petition for a writ of habeas corpus (Doc. 6) and respondent’s answer (Doc. 16).
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Petitioner did not file a traverse.
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I. BACKGROUND
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A.
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Facts1
The California Court of Appeal, Third District, recited the following facts, and
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Petitioner has not offered any clear and convincing evidence to rebut the presumption that these
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facts are correct:
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The People's Case
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Tristen Doe
On December 14, 2011, 16–year–old Tristen Doe was walking home from
the bus stop after getting out of school at around 2:13 p.m. Defendant
drove up very close to her in a green Honda. He stopped, rolled down the
window, and asked Tristen if she wanted to get in the car. She declined
and kept walking. Defendant revved the engine, moved the car forward,
and told Tristen to “get in the fucking car.”
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Defendant looked as if he were about to open the car door when Tristen's
next door neighbor, Cynthia Pendergast, brought her trash can out to the
curb. Tristen saw Pendergast and called out her name. Defendant told
Tristen, “Don't call her over here, bitch.” Tristen told Pendergast, “Can
you come over here, please?” When Pendergast looked at Tristen and
came toward them, defendant told Tristen “man, fuck you” before driving
away. Tristen wrote down the license plate number of defendant's car.
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Patrice Doe
Between 2:00 and 3:00 p.m. that afternoon, 13–year–old Patrice Doe was
walking when she saw a green Honda driven by defendant. Defendant
asked Patrice her name, which she provided. Defendant asked Patrice
where she lived, and she told him the north side. He asked whether she
wanted to “kick it” at his apartment. Patrice declined, but defendant
“forced” her to take a folded piece of paper containing his phone number.
She did not want to go with him, but took his number because she was
“scared” not to.
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At some point, defendant grabbed Patrice's arm and tried to get her in his
car. She jerked away from his grasp, ripping her sweatshirt in the process.
She started to run away, but fell for a moment. Patrice looked back and
saw defendant looking at her before he got into his car and drove off. She
then ran all the way to school, where she called her mother and told her a
man tried to grab her.
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Pursuant to 28 U.S.C. § 2254(e)(1), “. . . a determination of a factual issue made
by a State court shall be presumed to be correct.” See also Runningeagle v. Ryan, 686 F.3d
759 n.1 (9th Cir. 2012). Petitioner bears the burden of rebutting this presumption by clear and
convincing evidence. See id. These facts are, therefore, drawn from the state court’s
opinion(s), lodged in this court. Petitioner may also be referred to as “defendant.”
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Keeva and Anjuanune Doe
That same afternoon, 14–year–old ninth graders Keeva and Anjuanune
Doe were walking after school. As they crossed the street, they noticed a
man driving slowly in a green car. The car drove off, but returned from
around the block and pulled up as if it were going to stop. The girls tried
to ignore the man; he caught their attention by nodding his head and
making hand gestures telling them to come to the car. The girls responded
by throwing rocks at the car. The man drove off.
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Uncharged Misconduct Evidence
On November 7, 2011, 12–year–old Amanda Doe was walking home from
school when she noticed a man in a green car driving slowly and staring at
her while saying something she could not understand. She shook her head
and kept walking. The man drove around and back to her a second and
then a third time, staring and gesturing at her.
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Amanda ran home and told her older sister. The two drove around to look
for the car. They saw a four-door green Honda, which Amanda thought
was the car that followed her. She believed that the man standing next to
the car was the man who followed her.
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Other Evidence
On December 14, 2011, at around 3:00 p.m., Stockton Police Officer
Loreen Gamboa responded to a report of a car approaching a young
female. Officer Gamboa met Tristen, who was crying and hysterical. She
spoke to Tristen and a neighbor.
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Gamboa received a similar report at 5:17 p.m. the same day regarding a
car that matched the description police had been given. She drove to the
location and found the car and the driver (defendant) detained. When
Gamboa asked another officer what was going on, defendant said, “Is this
about the underage girls I was talking to? I didn't do anything. I left.”
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Gamboa later met Patrice, who was afraid and appeared to have been
crying. Patrice identified defendant and his car in a field identification.
Tristen was also brought to the identification and identified defendant as
well as his car. Anjuanune went to the identification; she identified
defendant's car but was not sure defendant was the man. Keeva went to the
identification and also identified defendant's car but was uncertain about
defendant.
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Defendant was interviewed by the police. He confirmed owning a dark
green Honda Accord. He said that on the day of the incidents, he was
driving to pick up his check at around 3:30 p.m. when he saw someone
walking and “hit her up.” The girl said she was picking up her sisters and
visiting her mother; defendant said he wanted to talk to her later and asked
for her number. She did not have a phone but said defendant could give
her his number. She also agreed to go to his house and “kick it.”
Defendant, who thought the girl was 18 or 19 years old, gave her his
number. He denied grabbing her or getting out of the car.
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Asked to define “kicking it,” defendant said it meant going to his house,
watching television, getting to know each other, and “if it be something
else, it'll be something else.” “[S]omething else” meant sex; if a girl
“feels” him like he “feel[s]” her, it will lead to sex. He admitted that
regarding the girl he wanted to “kick it” with, he was hoping to have sex
with her if she was of age. He did not know that any of the girls he
contacted were underage and did not intend to force any of them to do
anything.
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Defendant was carrying unopened condoms in his wallet when he was
arrested.
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The Defense
Defendant testified that he attended to errands on the morning of the
incidents, returned to his Stockton home for a nap, and then left at 3:00
p.m. to pick up his check from work. He thought the first female he
encountered was at least 18. He followed her in his car to see who she was
and to talk to her. He drove up close to her and said hello. She ignored
him, but he kept talking to her and finally drove off when she “call[ed] out
to some lady.”
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Defendant kept driving; at around 3:25 or 3:30 p.m., he saw Patrice.
Thinking she was 18 or older, defendant drove up and said hello to her.
When she walked to the passenger window of defendant's stopped car,
defendant rolled down the window and conversed with Patrice, eventually
asking her to “kick it” with him. Defendant asked for her phone number,
but she did not have one, so he gave her his number which she accepted.
He then drove to work. After leaving work and driving to various
locations, at around 5:00 p.m., defendant met the two girls from the prior
encounter. Defendant drove past them and said, “What's up, ladies?” He
never stopped the car or waved the girls over. He did not see them throw
any rocks. He testified that he understood the term “kicking it” to mean
hanging out, watching movies, or going out to eat.
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People v. Wills, No. C073028, 2014 WL 2880221 (Cal. Ct. App. June 24,
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2014) (unpublished).
B.
Procedural History
A jury convicted Petitioner of two counts of attempted kidnapping and four counts
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of contacting a minor with the intent to commit a sex offense or kidnapping. Petitioner was
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sentenced to eight years eight months in state prison. Petitioner’s conviction and sentence were
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affirmed by the California Court of Appeal, Third District, on June 25, 2014, and on April 15,
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2015, the California Supreme Court summarily denied Petitioner’s petition for review. Petitioner
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filed his initial federal habeas corpus petition on July 15, 2015. On July 22, 2015, this court
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dismissed Petitioner’s petition with leave to amend. On August 10, 2015, Petitioner filed his first
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amended petition for a writ of habeas corpus.
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II. STANDARDS OF REVIEW
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On April 24, 1996, Congress enacted the Antiterrorism and Effective Death
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Penalty Act of 1996 (AEDPA), which applies to cases filed after its enactment. See Lindh v.
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Murphy, 521 U.S. 320, 326-27 (1997); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d
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1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). This action was filed after April
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24, 1996, thus the provisions of AEDPA are presumptively applicable.
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Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) is
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not available for any claim decided on the merits in state court proceedings unless the state
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court’s adjudication of the claim:
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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
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(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
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Under § 2254(d)(1), federal habeas relief is available only where the state court’s
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decision is “contrary to” or represents an “unreasonable application of” clearly established law.
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Under both standards, “clearly established law” means those holdings of the United States
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Supreme Court as of the time of the last reasoned state court decision. See Carey v. Musladin,
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549 U.S. 70, 74 (2006) (citing Williams, 529 U.S. at 412). The holdings of the Supreme Court,
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not the holdings of lower federal courts, determine clearly established law. Plumlee v. Masto,
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512 F.3d 1204, 1210 (9th Cir. 2008) (en banc). The Supreme Court precedent must “squarely
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address” an issue or establish a legal principle that “clearly extends” to a new context. See Moses
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v. Payne, 555 F.3d 742, 753-54 (9th Cir. 2009) (citing Wright v. Van Patten, 552 U.S. 120, 28 S.
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Ct. 743, 746 (2008)). For federal law to be clearly established, the Supreme Court must provide a
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“categorical answer” to the question before the state court. See id.; see also Carey, 549 U.S. at
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76-77.
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Circuit court precedent “may be persuasive in determining what law is clearly
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established and whether a state court applied that law unreasonably.” Stanley v. Cullen, 633 F.3d
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852, 859 (9th Cir. 2011) (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However,
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circuit precedent may not be “used to refine or sharpen a general principle of Supreme Court
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jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall
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v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S. Ct. 2148, 2155
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(2012) (per curiam)). Nor may it be used to “determine whether a particular rule of law is so
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widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court,
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be accepted as correct. Id. Further, where courts of appeals have diverged in their treatment of an
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issue, it cannot be said that there is “clearly established Federal law” governing that issue. Carey
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v. Musladin, 549 U.S. 70, 77 (2006).
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A state court decision is “contrary to” Supreme Court precedent if it applies a rule
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contradicting a holding of the Supreme Court or reaches a result different from Supreme Court
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precedent on “materially indistinguishable” facts. Williams v. Taylor, 529 U.S. 362, 405 (2000)
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(O’Connor, J., concurring). In sum, a petitioner must demonstrate that Supreme Court precedent
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requires a contrary outcome because the state court applied the wrong legal rules.
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Under the “unreasonable application” clause of § 2254(d)(1), a federal court may
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grant a writ of habeas corpus if the state court identifies the correct governing legal principle from
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the Supreme Court’s decisions, but unreasonably applies that principle to the facts of the
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prisoner’s case. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v.
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Chambra, 360 F3d 997, 1002 (9th Cir. 2004). In this regard, a federal court “may not issue the
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writ simply because that court concludes in its independent judgment that the relevant state-court
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decision applied clearly established federal law erroneously or incorrectly. Rather, that
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application must also be unreasonable.” Williams, 529 U.S. at 412. See also Schriro v.
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Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal
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habeas court, in its independent review of the legal question, is left with a ‘firm conviction’ that
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the state court was ‘erroneous.’”). Accordingly, “[a]s a condition for obtaining habeas corpus
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from a federal court, a state prisoner must show that the state court’s ruling on the claim being
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presented in federal court was so lacking in justification that there was an error well understood
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and comprehended in existing law beyond any possibility for fairminded disagreement.”
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Harrington v. Richter, 562 U.S. 86, 103 (2011)
The “unreasonable application of” standard also applies where the state court
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denies a claim without providing any reasoning whatsoever. See Himes v. Thompson, 336 F.3d
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848, 853 (9th Cir. 2003); Delgado v. Lewis, 233 F.3d 976, 982 (9th Cir. 2000). Such decisions
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are considered adjudications on the merits and are, therefore, entitled to deference under the
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AEDPA. See Green v. Lambert, 288 F.3d 1081 1089 (9th Cir. 2002); Delgado, 233 F.3d at 982.
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The federal habeas court assumes that state court applied the correct law and analyzes whether the
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state court’s summary denial was based on an objectively unreasonable application of that law.
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See Himes, 336 F.3d at 853; Delgado, 233 F.3d at 982.
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III. DISCUSSION
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Petitioner alleges there is insufficient evidence to support his multiple convictions
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of attempted kidnapping and multiple convictions of contacting a minor with the intent to commit
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sexual offenses. Petitioner raises four arguments in his petition. First, Petitioner contends that
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Patricia Doe testified that Petitioner exited his vehicle and forced his phone number in her hand,
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whereas in her statement to the police, Patricia Doe stated that Petitioner was in his car during
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this encounter. Further, Petitioner asserts that during trial Patricia Doe recanted her statements
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about Petitioner grabbing her and trying to force her into his car. Second, Petitioner alleges that
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during trial Officer Gamboa stated that she “had the crime lab take picture of [Patricia Doe’s] torn
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sweatpants at the knee.” But then, during cross examination Petitioner’s attorney established that
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“there was no mention to take any pictures of torn sweatpants or. . .giving a command to the
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crime lab to take any pictures.” Third, Petitioner argues he could not have interacted with Keeva
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Doe and Ajuanune Doe when alleged because he was on the other side of town interacting with
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Tristen Doe. Fourth, Petitioner contends that Keeva Doe and Anjuanune Doe left at different
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times, thus corroborating one of his statements.
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When a challenge is brought alleging insufficient evidence, federal habeas corpus
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relief is available if it is found that, upon the record of evidence adduced at trial, viewed in the
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light most favorable to the prosecution, no rational trier of fact could have found proof of guilt
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beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).2 Under Jackson,
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the court must review the entire record when the sufficiency of the evidence is challenged on
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habeas. See id. It is the province of the jury to “resolve conflicts in the testimony, to weigh the
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evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. “The question
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is not whether we are personally convinced beyond a reasonable doubt. It is whether rational
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jurors could reach the conclusion that these jurors reached.” Roehler v. Borg, 945 F.2d 303, 306
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(9th Cir. 1991); see also Herrera v. Collins, 506 U.S. 390, 401-02 (1993). The federal habeas
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court determines sufficiency of the evidence in the context of the substantive elements of the
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criminal offense, as defined by state law. See Jackson, 443 U.S. at 324 n.16.
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The California Court of Appeal, Third Appellate District, rejected the sufficiency
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of the evidence arguments and affirmed Petitioners convictions. In doing so the California Court
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of Appeal applied the following legal rule:
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Under the state and federal constitutional due process clauses, “the
test of whether evidence is sufficient to support a conviction is
whether, after viewing the evidence in the light most favorable to
the prosecution, any rational tier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
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People v. Wills, No. C073028, 2014 WL 2880221 (Cal. Ct. App.
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June 24, 2014) (unpublished).
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Even though Jackson was decided before AEDPA’s effective date, this expression
of the law is valid under AEDPA’s standard of federal habeas corpus review. A state court
decision denying relief in the face of a record establishing that no rational jury could have found
proof of guilt beyond a reasonable doubt would be either contrary to or an unreasonable
application of the law as outlined in Jackson. Cf. Bruce v. Terhune, 376 F.3d 950, 959 (9th Cir.
2004) (denying habeas relief on sufficiency of the evidence claim under AEDPA standard of
review because a rational jury could make the finding at issue).
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Because the state court applied the correct legal standard under Jackson, the
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analysis turns to whether the state court’s decision involved an unreasonable application of the
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Jackson standard. See Lockyer, 538 U.S. at 75; Williams, 529 U.S. at 413; Chia, 360 F3d at
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1002.
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In determining whether the evidence was sufficient in this case, the California
Court of Appeal held:
Defendant contends there is insufficient evidence to support his
convictions as to count 4 (unlawful contact with Tristen), count 3
(attempted kidnapping of Tristen), count 5 (unlawful contact with
Anjuanune), and count 6 (unlawful contact with Keeva). We disagree.
In determining the sufficiency of the evidence, our role is limited. Under
the state and federal constitutional due process clauses, “the test of
whether evidence is sufficient to support a conviction 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.’ [Citations.]” (People v.
Holt (1997) 15 Cal.4th 619, 667.)
A. Count 4
Section 288.3, subdivision (a) states: “Every person who contacts or
communicates with a minor, or attempts to contact or communicate with a
minor, who knows or reasonably should know that the person is a minor,
with intent to commit an offense specified in Section 207, 209, 261, 264.1,
273a, 286, 288, 288a, 288.2, 289, 311.1, 311.2, 311.4 or 311.11 involving
the minor shall be punished by imprisonment in the state prison for the
term prescribed for an attempt to commit the intended offense.”
The jury found defendant intended to commit two offenses in count 4,
kidnapping (§ 207, subd. (a)) and forcible rape (§ 261, subd. (a)(2)).
Defendant claims there is insufficient evidence to support either finding.
He argues that the evidence shows no more than an intent to have
consensual sex with Tristen, and does not indicate he intended to have
forced intercourse with her. He further asserts the evidence does not show
an intent to kidnap Tristen because defendant did not touch Tristen, did
not open the car door, get out of the car, or block her path, and his “verbal
‘insistence’ was unaccompanied by any aggressive physical act.”
Intent is “‘rarely susceptible of direct proof’” and instead “‘must usually
be inferred from all the facts and circumstances disclosed by the
evidence.’ [Citations.]” (People v. Falck (1997) 52 Cal.App.4th 287, 299.)
While there is no direct proof of intent, there is enough circumstantial
evidence to infer the requisite intent. “An appellate court must accept
logical inferences that the jury might have drawn from the circumstantial
evidence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 396.)
“Before the judgment of the trial court can be set aside for the
insufficiency of the evidence, it must clearly appear that on no hypothesis
whatever is there sufficient substantial evidence to support the verdict of
the jury. [Citation.]” (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
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Evidence of other charged or uncharged offenses is relevant to show intent
or plan. (Evid.Code, § 1101, subd. (b).) Where, as here, all of the charged
and uncharged acts followed a similar pattern, we can consider the
evidence of all charged and uncharged acts as relevant to the intent as to
each charged crime. (Cf. People v. Jones (2013) 57 Cal.4th 899,
925 [joinder of offenses not prejudicial to defendant where joined offenses
shared a distinctive modus operandi, rendering the evidence of each crime
cross admissible as to “intent, plan or identity”].)
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Taken together, the evidence shows defendant wanted to have sex with
these underage girls. The definition of “kicking it” defendant gave to the
police indicated the hope of sexual relations with them. Defendant's intent
to have intercourse with the girls is also supported by the unopened
condoms he was carrying when he was arrested. The jury did not have to
accept defendant's self-serving statements to the police and his testimony
that he intended only consensual sex or a consensual meeting with the
girls. Defendant's conduct towards Tristen and Patrice showed he intended
to force the matter if the girls did not consent to his advances. Although
defendant's demands to Tristen to get in his car were not accompanied by
any physical acts, any doubts regarding his intent were resolved by his
attempt to pull Patrice into his car shortly after the incident with Tristen.
(See People v. Nye (1951) 38 Cal.2d 34, 37–38, disapproved on other
grounds in People v. Rincon–Pineda (1975) 14 Cal.3d 864, 876 [evidence
of intent to rape shown by defendant's attempt to rape another woman in
similar circumstances].)
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Rape is sexual intercourse with another person “against a person's will by
means of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the person or another.” (§ 261, subd. (a)(2).)
“Every person who forcibly, or by any other means of instilling fear, steals
or takes, or holds, detains, or arrests any person in this state, and carries
the person into another country, state, or county, or into another part of the
same county, is guilty of kidnapping.” (§ 207, subd. (a).)
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Defendant approached three sets of underage girls within a short time,
demonstrated the desire to have sex with them, and manifested a
willingness to force them into his car if necessary. Taken together, these
facts support an inference that defendant intended to kidnap and rape
Tristen if she did not willingly go with him. Substantial evidence supports
defendant's conviction under section 288.3, subdivision (a) in count 4.
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B. Count 3
Relying on the authorities cited in support of his claim regarding count 4,
defendant claims there is insufficient evidence to support his conviction
for attempted kidnapping of Tristen in count 3.
Section 21a provides that “[a]n attempt to commit a crime consists of two
elements: a specific intent to commit the crime, and a direct but ineffectual
act done toward its commission.” As we previously discussed, there is
substantial evidence that defendant harbored an intent to kidnap Tristen.
Defendant's attempt to order her into his car when she did not want to do
so constitutes a direct but ineffectual act done towards the intended
kidnapping. Substantial evidence supports the conviction for attempted
kidnapping in count 3.
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C. Counts 5 and 6
Defendant also contends his convictions for unlawful contact with
Anjuanune (count 5) and Keeva (count 6) must be reversed because there
is insufficient evidence that he had an intent to commit kidnapping, or an
intent to commit a lewd act on a 14– or 15–year–old. As previously noted,
the evidence of all the charged and uncharged offenses shows a common
intent to have sex with the girls defendant contacted and an intent to
kidnap them if necessary to achieve that goal. His statement at his
arrest, “Is this about the underage girls I was talking to? I didn't do
anything. I left,” indicates he knew the girls were underage. Since the
evidence supports an inference defendant intended to have sex with the
underage girls and would kidnap them if provided the opportunity,
substantial evidence supports the convictions and special findings as to
both counts.
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Wills, 2014 WL 2880221 at *3-4.
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The Court of Appeal engaged in a thorough and reasoned review of all relevant
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evidence, in the light most favorable to the prosecution, and determined that a rational trier of fact
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could find the essential elements of each crime beyond a reasonable doubt. This court agrees.
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Petitioner argues that the evidence does not support a conviction, but rather corroborates his
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statements. However, as the Court of Appeal properly explained a jury is not required to accept
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defendant’s statements and arguments during trial. See Wills, 2014 WL 2880221 at *3.
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Petitioner’s argument focusses on what he believes the evidence establishes, not, as Jackson
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requires, whether a rational juror could reach the same verdict as the jury did in this case. On this
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record, looking at the testimony of the alleged victims, the physical evidence, including the
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unopened condoms in Petitioner’s pocket, a rational jury could conclude, as the jury in this case
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did, that Petitioner is guilty of the alleged offenses. Given the Court of Appeal’s review of the
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evidence and application of the proper law, it cannot be said that the court’s review was
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unreasonable or that there is insufficient evidence to support Petitioner’s convictions. Thus, the
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California Court of Appeal’s decision did not involve an unreasonable application of clearly
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established federal law.
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IV. CONCLUSION
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Based on the foregoing, the court concludes that petitioner is not entitled to federal
habeas corpus relief.
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Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the
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court has considered whether to issue a certificate of appealability. Before petitioner can appeal
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this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P.
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22(b). Where the petition is denied on the merits, a certificate of appealability may issue under
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28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a
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constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of
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appealability indicating which issues satisfy the required showing or must state the reasons why
11
such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on
12
procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that
13
jurists of reason would find it debatable whether the district court was correct in its procedural
14
ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid
15
claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir.
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2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604 (2000)). For the reasons
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stated herein, the court finds that issuance of a certificate of appealability is not warranted in this
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case.
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Accordingly, IT IS HEREBY ORDERED that:
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1.
Petitioner’s amended petition for a writ of habeas corpus (Doc. 6) is
22
2.
The court declines to issue a certificate of appealability; and
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3.
The Clerk of the Court is directed to enter judgment and close this file.
21
denied;
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Dated: September 20, 2018
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE
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