Lopez v. People of the State of California
Filing
37
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/16/2017 RECOMMENDING that the 1 Petition for Writ of Habeas Corpus filed by Jesus Andres Lopez be denied. Referred to District Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (York, M)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
JESUS ANDRES LOPEZ,
12
13
14
15
No. 2:15-cv-1756-KJM-EFB P
Petitioner,
FINDINGS AND RECOMMENDATIONS
vs.
PEOPLE OF THE STATE OF
CALIFORNIA
Respondent.
16
17
18
Petitioner is a state prisoner proceeding without counsel with a petition for a writ of
19
habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction
20
entered against him on June 19, 2012 in the Superior Court of Colusa County on charges of: (1)
21
one count of orally copulating a child under fourteen; (2) two counts of committing lewd acts on a
22
child under the age of fourteen; (3) one count of sodomizing a child under the age of fourteen;
23
(4) six1 counts of exhibiting harmful matter to a minor; (5) one count of orally copulating a child
24
under sixteen; (6) one count orally copulating a disabled person; (7) two counts of committing
25
lewd acts on a child under sixteen; (8) one count sodomizing a child under sixteen; and (9) one
26
27
28
1
Two of these counts were subsequently reversed by the California Third District Court
of Appeal. People v. Lopez, No. C072072, 2014 WL 5796683, at *8 (Cal. Ct. App. Nov. 7,
2014), review denied (Jan. 14, 2015).
1
1
count of sodomizing a disabled person. He seeks federal habeas relief on the following grounds:
2
(1) prosecutorial misconduct resulted in an unfair trial; (2) his convictions are not supported by
3
sufficient evidence; and (3) his due process rights were violated by the trial court’s decision to
4
admit evidence of a prior, uncharged sex offense. Upon careful consideration of the record and
5
the applicable law, the undersigned recommends that petitioner’s application for habeas corpus
6
relief be denied.
7
I. Background
8
9
10
11
12
13
14
15
16
17
18
In its unpublished memorandum and opinion affirming petitioner’s judgment of
conviction on appeal, the California Court of Appeal for the Third Appellate District provided the
following procedural and factual summary:
Defendant Jesus Andres Lopez was convicted of 16 counts of various sex
crimes against seven boys. He asserts reversible error on the following
grounds:
1. The prosecutor committed misconduct in his rebuttal jury argument;
2. Insufficient evidence supports his six convictions of exhibiting harmful
matter to a minor;
3. The trial court erred by admitting evidence of a prior uncharged sex
crime;
4. The trial court imposed unauthorized restitution and parole revocation
fines; and
19
20
21
22
23
24
25
26
27
5. The abstract of judgment incorrectly records his presentence custody
credits.
In addition, the Attorney General asks us to modify the judgment to impose
sentences on subordinate consecutive terms in the correct manner and to
order the abstract of judgment be similarly corrected. Defendant agrees
with the Attorney General's requests.
We reverse the judgment as to two of the convictions for exhibiting
harmful matter; we modify the judgment to impose the correct restitution
and parole revocation fines and sentences on the subordinate consecutive
terms; and we order the abstract of judgment amended to record
defendant's sentencing, restitution fines, and presentence custody credit
accurately. In all other respects, we affirm the judgment.
28
2
1
FACTS
2
We need not recite all of the sordid facts in order to address defendant's
contentions. Suffice it to say, defendant, who turned 39 years old three
days after trial in 2012, was convicted of committing the following crimes
against seven boys in 2010 and 2011:
3
4
5
6
7
One count of orally copulating a child under the age of 14 (Pen.Code, §
288a, subd. (c)(1))1 (count I);
Two counts of committing lewd acts on a child under the age of 14 (§ 288,
subd. (a)) (counts II and XVII);
8
9
10
11
12
13
14
15
16
17
18
One count of sodomizing a child under the age of 14 (§ 286, subd. (c)(1))
(count III);
Six counts of exhibiting harmful matter to a minor (§ 288.2, subd. (a))
(counts IV, VIII, XVI, XVIII, XIX, and XX);
One count of orally copulating a child under the age of 16 (§ 288a, subd.
(b)(2)) (count IX);
One count of orally copulating a disabled person (§ 288a, subd. (g)) (count
X);
Two counts of committing lewd acts on a child under the age of 16 (§ 288,
subd. (c)(1)) (counts XI and XIV);
One count of sodomizing a child under the age of 16 (§ 286, subd. (b)(2))
(count XII); and
19
One count of sodomizing a disabled person (§ 286, subd. (g)) (count XIII).
20
The jury also found true a multiple victim enhancement under section
667.61, subdivisions (b), (c)(8), and (e)(4), as to counts II and XVII.
21
22
23
24
25
26
27
28
The trial court sentenced defendant to state prison for an indeterminate
term of 30 years to life, plus 19 years four months, calculated as follows:
Consecutive 15 years to life terms on counts II and XVII (lewd acts on a
child under 14) pursuant to the multiple victim enhancement; a consecutive
upper term of eight years on count III (sodomy on a child under 14);
consecutive middle terms of six years stayed except for one-third of the
middle term sentences of two years on counts I, X, and XIII (oral
copulation of a child under 14, oral copulation of a disabled person, and
sodomy of a disabled person); and consecutive middle terms of two years
stayed except for one-third of the middle term sentences of eight months on
counts IV, VIII, XVI, XVIII, XIX, and XX (exhibiting harmful matter to a
minor) and counts XI and XIV (lewd acts on a child under 16).
3
1
2
3
4
The court also imposed and stayed under section 654 the middle term
sentences of two years on counts IX and XII (oral copulation of a child
under 16 and sodomy of a child under 16).
The court imposed restitution and parole revocation fines of $100,000
each. It also granted defendant a total of 499 days of custody credit; 434
days for actual custody and 65 days for worktime credits.
5
6
People v. Lopez, No. C072072, 2014 WL 5796683, at *1-2 (Cal. Ct. App. Nov. 7, 2014), review
7
denied (Jan. 14, 2015).
8
II. Standards of Review Applicable to Habeas Corpus Claims
9
An application for a writ of habeas corpus by a person in custody under a judgment of a
10
state court can be granted only for violations of the Constitution or laws of the United States. 28
11
U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or
12
application of state law. See Wilson v. Corcoran, 562 U.S. 1,5 (2010); Estelle v. McGuire, 502
13
U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim (1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
For purposes of applying § 2254(d)(1), “clearly established federal law” consists of
holdings of the United States Supreme Court at the time of the last reasoned state court decision.
Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 565 U.S. 34,
(2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S.
362, 405-06 (2000)). Circuit court precedent “may be persuasive in determining what law is
clearly established and whether a state court applied that law unreasonably.” Stanley, 633 F.3d at
4
1
859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent
2
may not be “used to refine or sharpen a general principle of Supreme Court jurisprudence into a
3
specific legal rule that th[e] [Supreme] Court has not announced.” Marshall v. Rodgers, 133 S.
4
Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (per curiam)).
5
Nor may it be used to “determine whether a particular rule of law is so widely accepted among
6
the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct.
7
Id. Further, where courts of appeals have diverged in their treatment of an issue, it cannot be said
8
that there is “clearly established Federal law” governing that issue. Carey v. Musladin, 549 U.S.
9
70, 77 (2006).
10
A state court decision is “contrary to” clearly established federal law if it applies a rule
11
contradicting a holding of the Supreme Court or reaches a result different from Supreme Court
12
precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003).
13
Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the
14
writ if the state court identifies the correct governing legal principle from the Supreme Court’s
15
decisions, but unreasonably applies that principle to the facts of the prisoner’s case. 2 Lockyer v.
16
Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002
17
(9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ simply because that
18
court concludes in its independent judgment that the relevant state-court decision applied clearly
19
established federal law erroneously or incorrectly. Rather, that application must also be
20
unreasonable.” Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473
21
(2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its independent
22
review of the legal question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”).
23
“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as
24
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v.
25
Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
26
27
28
2
Under § 2254(d)(2), a state court decision based on a factual determination is not to be
overturned on factual grounds unless it is “objectively unreasonable in light of the evidence
presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford,
384 F.3d 628, 638 (9th Cir. 2004)).
5
1
Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner
2
must show that the state court’s ruling on the claim being presented in federal court was so
3
lacking in justification that there was an error well understood and comprehended in existing law
4
beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.
5
If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing
6
court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford,
7
527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)
8
(en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of §
9
2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering
10
11
de novo the constitutional issues raised.”).
The court looks to the last reasoned state court decision as the basis for the state court
12
judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If
13
the last reasoned state court decision adopts or substantially incorporates the reasoning from a
14
previous state court decision, this court may consider both decisions to ascertain the reasoning of
15
the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When
16
a federal claim has been presented to a state court and the state court has denied relief, it may be
17
presumed that the state court adjudicated the claim on the merits in the absence of any indication
18
or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption
19
may be overcome by a showing “there is reason to think some other explanation for the state
20
court’s decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
21
Similarly, when a state court decision on a petitioner’s claims rejects some claims but does not
22
expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that
23
the federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289, 292 (2013).
24
Where the state court reaches a decision on the merits but provides no reasoning to
25
support its conclusion, a federal habeas court independently reviews the record to determine
26
whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.
27
Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo
28
review of the constitutional issue, but rather, the only method by which we can determine whether
6
1
a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no
2
reasoned decision is available, the habeas petitioner still has the burden of “showing there was no
3
reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98.
4
A summary denial is presumed to be a denial on the merits of the petitioner’s claims.
5
Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze
6
just what the state court did when it issued a summary denial, the federal court must review the
7
state court record to determine whether there was any “reasonable basis for the state court to deny
8
relief.” Richter, 562 U.S. at 98. This court “must determine what arguments or theories ... could
9
have supported, the state court's decision; and then it must ask whether it is possible fairminded
10
jurists could disagree that those arguments or theories are inconsistent with the holding in a prior
11
decision of [the Supreme] Court.” Id. at 102. The petitioner bears “the burden to demonstrate
12
that ‘there was no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709 F.3d
13
925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98).
14
When it is clear, however, that a state court has not reached the merits of a petitioner’s
15
claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal
16
habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462
17
F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
18
III. Petitioner’s Claims
19
A. Prosecutorial Misconduct
20
The prosecutor, by way of his rebuttal closing argument, stated that the defense had failed
21
to offer a reasonable explanation as to why the victims would choose to lie about the crimes
22
perpetrated against them. The petitioner, who had staked his defense on a theory that the victims
23
were lying, argues that the prosecutor’s comment imposed an unwarranted burden of proof on
24
him. The Court of Appeal rejected this argument:
25
26
27
28
Defendant contends the prosecutor committed misconduct in his rebuttal
closing argument by stating the defense, whose theory was the victims
were lying, had not introduced a reasonable explanation as to why the
victims would lie. Defendant asserts the comment imposed on him a
burden of proof. We conclude defendant has forfeited this argument. If we
considered the argument on its merits, we would conclude the statement
7
1
2
3
4
5
6
7
was merely a comment on the state of the evidence and was not
misconduct.
A. Additional background information
Defendant's trial theory was that the victims lied. In closing argument,
defense counsel referenced a letter written by one of the victims, K.S.
Counsel argued another victim, Anthony, learned of the molestations by
reading that letter. Counsel called the letter a “smoking gun” that
contaminated the case and created reasonable doubt.
10
In his rebuttal argument, the prosecutor spoke of the facts on which all
parties agreed. Defendant, a man in his thirty's, hung out with young boys
at his house. Boys spent the night there in defendant's bedroom. In his
bedroom, defendant kept a rubber vagina, a bag of condoms, lubricant, and
also a bowl of candy on the bed's headboard. To get to the candy, boys had
to go onto the bed, and defendant would invite them to do so.
11
The dialogue continued as follows:
12
“[PROSECUTOR:] What else? We have seven boys come in, into this
courtroom, seven, and they tell you that in that room they're watching porn.
The Defendant is showing them porn. So that's changing everything to
something different and sexual. It's not just weird that he has them spend
the night. Now there's something sexual going on in there. Five of those
boys tell you they were molested.... Five kids tell you that they were
molested in there. And what's the explanation for all of this? Why all these
kids would lie?
8
9
13
14
15
16
17
18
19
20
21
“Defense Counsel says there's a smoking gun of a note written by [K.S.] So
we're supposed to believe that these kids saw a note, and because they read
that note are willing to tell people, come in here and say that they had sex
with a man. Is that believable? The question is reasonable doubt. Is it
reasonable that seven boys, who we know were sleeping in his bedroom or
spending time with him, would just make up lies for no reason? What were
we told? Defense had an opportunity to explain something to you.
“[DEFENSE COUNSEL]: Judge, I'm going to object. This is rebuttal.
22
23
“THE COURT: Objection is sustained. It is not a rebuttal comment. [¶]
You may go into your next area.
24
“[PROSECUTOR]: Defense never provided you with an explanation.
25
“[DEFENSE COUNSEL]: Same objection, Judge.
26
27
“THE COURT: Objection will be sustained. It is a valid objection. Rebuttal
must be made to comments.
28
8
1
4
“[PROSECUTOR]: Is it reasonable to believe that these boys lied? Why
did they lie? To believe that they're lying, it must be reasonable to believe
it, and something to be reasonable needs an explanation. You must know
why you believe it. You can't just believe it. Why? And in detail, different
details.... Why did it happen? Why would they lie? The fact is, they didn't
lie.” No objection was made to this part of counsel's argument.
5
B. Analysis
6
Defendant asserts the prosecutor, by stating the defense had an opportunity
to explain something to the jury, improperly shifted the burden of proof to
the defense to explain why the victims would lie.
2
3
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Defendant has forfeited this claim on appeal. “ ‘[A] defendant may not
complain on appeal of prosecutorial misconduct unless in a timely
fashion—and on the same ground—the defendant made an assignment of
misconduct and requested that the jury be admonished to disregard the
impropriety. [Citation.]’ [Citation.]” (People v. Stanley (2006) 39 Cal.4th
913, 952, italics added.) At trial, defense counsel did not request an
admonition to the jury when he objected to the prosecutor's argument, and
he objected on grounds of improper rebuttal, not burden shifting. The
argument is thus forfeited.
Defendant asserts for the first time in his reply brief that should we
conclude his claim of prosecutorial misconduct is forfeited, we should
review the matter for ineffective assistance of counsel. By failing to raise a
claim of ineffective assistance of counsel in his opening brief, defendant
has forfeited that contention as well. Arguments raised for the first time in
a reply brief may be deemed forfeited absent a showing of good cause.
(Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10.) Defendant
makes no showing as to why he should be permitted to raise his claim for
ineffective assistance of counsel in his reply brief. Accordingly, the claim
is deemed forfeited.
Even were we to consider defendant's claim of prosecutorial misconduct on
the merits, we would conclude the prosecutor committed no error. For
purposes of prosecutorial misconduct, “[a] distinction clearly exists
between the permissible comment that a defendant has not produced any
evidence, and on the other hand an improper statement that a defendant has
a duty or burden to produce evidence, or a duty or burden to prove his or
her innocence.” (People v. Bradford (1997) 15 Cal.4th 1229, 1340.) The
latter constitutes prosecutorial misconduct, but the former does not. The
prosecutor's comment was of the former; a comment on the lack of
evidence providing a reason for why the victims would lie.
“A prosecutor may comment on the state of the evidence or on the failure
of the defense to introduce material evidence or to call logical witnesses.
[Citation.] So, too, may a prosecutor point out in final argument that
9
1
defense counsel have been silent in their argument on crucial factors in the
evidence, and thus have, presumably, no explanation to offer for these
factors.” (People v. Singleton (1980) 112 Cal.App.3d 418, 423.)
2
3
By his comment, the prosecutor addressed the state of the evidence on the
issue of reasonable doubt. In doing so, he did not impose on defendant any
burden to establish reasonable doubt. He simply argued the jury could not
reasonably rely upon the evidence defendant had submitted and had
referenced in closing argument to find reasonable doubt. The prosecutor
was free to make this argument.
4
5
6
7
Moreover, the jury was properly instructed on the presumption of
innocence, the prosecution's burden to prove the crime beyond a reasonable
doubt, and that attorney arguments were not evidence. We presume the jury
followed those instructions, and thus we would conclude the prosecutor's
argument did not constitute prosecutorial misconduct.
8
9
10
11
Lopez, 2014 WL 5796683, at *2-4. Petitioner raised this issue in a petition to the California
12
Supreme Court which was summarily denied. Lodg. Doc. No. 11 (Petition for Review); Lodg.
13
Doc. No. 12 (Order Denying Review).
1. Applicable Legal Standards
14
15
A habeas petition raising prosecutorial misconduct will not be granted unless the
16
misconduct “so infect[ed] the trial with unfairness as to make the resulting conviction a denial of
17
due process.” Greer v. Miller, 483 U.S. 756, 765 (1987). “[T]he touchstone of due process
18
analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability
19
of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, (1982). As such, in deciding whether a
20
prosecutor’s remarks rendered a trial fundamentally unfair, those remarks must be weighed in the
21
context of the entire proceeding. Boyde v. California, 494 U.S. 370, 385 (1990); Darden v.
22
Wainwright, 477 U.S. 168, 179-182 (1986). Additionally, because “improvisation frequently
23
results in syntax left imperfect and meaning less than crystal clear. . . . a court should not lightly
24
infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a
25
jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less
26
damaging interpretations.” Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974). Lastly, even
27
where prosecutorial misconduct gives rise to a due process violation, habeas relief is only
28
/////
10
1
warranted if that misconduct is prejudicial under the harmless error test established in Brecht v.
2
Abrahamson, 507 U.S. 619, 637-638 (1993).
3
4
2. Analysis
As a preliminary matter, respondent argues, inter alia, that this claim should be dismissed
5
as procedurally barred. ECF No. 31 at 21-22.3 The court need not reach this question, however,
6
as petitioner’s prosecutorial misconduct claim is meritless and will be resolved on that basis. See
7
Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (holding that judicial economy might favor
8
resolving claims on grounds other than procedural bar if “the procedural bar issue involved
9
complicated issues of state law”); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002)
10
(“Procedural bar issues are not infrequently more complex than the merits issues . . . , so it may
11
well make sense in some instances to proceed to the merits if the result will be the same.”).
12
It is well settled that prosecutors are permitted to argue reasonable inferences from the
13
evidence. Duckett v. Godinez, 67 F.3d 734, 742 (9th Cir. 1995); see also United States v. Birges,
14
723 F.2d 666, 672 (9th Cir. 1984) (“The prosecutor’s interpretation of [the defense theory] as a
15
“fabrication” is also well within the bounds of acceptable comment.”). Here, the prosecutor
16
emphasized what he perceived as a weakness in the defense theory of the case. Nothing in his
17
comments explicitly referred to or articulated an additional burden for the defendant to meet. To
18
the contrary, he referred to the proper standard of reasonable doubt and permissibly argued that
19
any doubts as to the veracity of the victims were not reasonable in light of the evidence. Even if
20
the prosecutor’s comments could be interpreted as ambiguous or confusing, the court will not
21
presume, absent some supportive evidence, either that he intended his remarks to raise a new
22
burden for the defense to overcome or that the jury independently interpreted such a burden from
23
those remarks. See Donnelly, 416 U.S. at 647. Indeed, the record reflects that the jury was
24
instructed as to both the presumption of innocence and the prosecution’s burden to prove guilt
25
beyond a reasonable doubt. Lodg. Doc. No. 2 (Clerk’s Transcript Vol. 2) at 290. And juries are
26
presumed, absent evidence to the contrary, to follow their instructions. Richardson v. Marsh, 481
27
28
3
Page number citations such as this one are to the page numbers reflected on the court’s
CM/ECF system and not to page numbers assigned by the parties.
11
1
U.S. 200, 211 (1987). Finally, as respondent points out, the evidence used to convict petitioner
2
was strong insofar as it featured testimony from multiple victims (Lodg. Doc. No. 4 (Reporter’s
3
Transcript Vol. II) at, e.g., 412 – 439, 440-464, 465-492) and his defense – that the victims were
4
lying - was weak. United States v. Young, 470 U.S. 1, 19 (1985) (overwhelming evidence of guilt
5
“eliminates any lingering doubt that the prosecutor's remarks unfairly prejudiced the jury's
6
deliberations . . .”).
7
B. Sufficiency of the Evidence
8
Next, petitioner contends that the evidence was not sufficient to sustain his convictions for
9
exhibiting harmful matter to a minor. ECF No. 25 at 16. Two of these convictions (showing
10
harmful matter to Chris and Ronald) were reversed by the Court of Appeal, but the remaining
11
four (showing harmful matter to N.C., G.W., Anthony, and K.S.) were upheld. The Court of
12
Appeal reasoned:
13
14
15
16
17
18
19
20
Defendant was convicted of six counts of exhibiting harmful matter to a
minor. Section 288.2 makes it a crime for an individual to knowingly
exhibit to a minor any “harmful matter,” as defined in Section 313, with the
intent of seducing the minor to engage in sexual conduct. (§ 288.2,
subds.(a), (c).) Defendant contends the evidence is insufficient to support
these convictions because the prosecution failed to prove the material was
“harmful matter” as defined in section 313; specifically, that it was
“patently offensive” to an adult. We conclude sufficient evidence supports
four of the six convictions.
Additional background information
We first review the victims' testimony concerning what defendant showed
them.
21
22
23
24
25
26
27
N.C. (count XX), 14 years old at trial, met defendant when he was 12.
Defendant showed him and four other victims “porn” in defendant's
bedroom on a laptop computer from a Web site named Porn Hub, and from
another Web site which had the word “hamster” in its name. The porn was
“guy on girl” and “boy on boy;” they were “having sex” in both instances.
N.C. also testified that defendant showed him a cell phone video of another
of defendant's victims, J.B., masturbating. Expert testimony at trial
established J.B. suffered from autism and mild mental retardation, and he
did not have the ability or understanding to consent to sex. Watching the
28
12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
cell phone video of J.B., N.C. heard J.B.'s and defendant's voices on the
video. J.B. told defendant to get out of there because he was “doing his
own thing.”
G.W. (count XVIII), 14 years old at trial, met defendant when he was 11 or
12. Defendant showed him and three other boys “porno” in defendant's
bedroom. Defendant always locked his bedroom door when he showed
pornography to the boys. Defendant would show it on “DVD, computer,
Internet.” The porn was videos of “boys on girls and boys on boys. Like
Asian boys on boys.” The videos of boys on girls and the Asian boys on
boys showed them having anal sex. The Web sites were named something
like “X and XX porn.”
Defendant also showed G.W. a video from his cell phone that depicted J.B.
masturbating. G.W. could hear defendant's voice on the video telling J.B.
to “keep going.” From the video, it appeared defendant was watching J.B.
and telling him to “keep going.”
Ronald (count XIX), 12 years old at trial, met defendant two years before
trial. Defendant showed Ronald and two to four other boys “porn” on his
television and on a computer. Defendant would lock his bedroom door
when he showed the videos to Ronald. The porn was “a guy and a girl.”
Anthony (count VIII) was 14 years old at the time of trial. He watched
“porn” on a computer in defendant's bedroom. The materials were on Web
sites named X Hamster and Porn Hub. Anthony said he saw in the porn
videos “very disturbing things,” “girl on girl and guy on girl.” Regarding
the “guy on girl” video, Anthony saw the guy insert his penis in the girl's
vagina.
K.S. (count IV), 14 years old at trial, was about 12 years old when he met
defendant. Defendant showed “porn” to K.S. in his bedroom on a
computer. Defendant would show the porn either to K.S. alone or to K.S.
and other boys. He would lock his bedroom door when he showed the porn.
The porn was from a Web site named X Hamster. K.S. saw “girl on girl,
guy on guy,” and “guy on woman.” The “guy on woman” were “having
sex.” The girl on girl were “touching each other,” and the guy on guy
“were fucking each other.”
Chris (count XVI), 16 years old at trial, was 14 when he met defendant.
Defendant showed Chris “adult clips” on his laptop and his television while
Chris was in his bedroom. The clips on television were from VHS tapes.
One tape depicted a “girl and a guy having sex.” The clips on the computer
were from the X Hamster Web site.
In addition to introducing the testimony of the victims, the prosecution
introduced the testimony of Cindy DeWoody, a child abuse sexual assault
investigator with the District Attorney's office. DeWoody viewed the Porn
13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Hub and X Hamster Web sites. She testified a person could view any kind
of pornography at these Web sites. She saw “[g]ay porn, lesbian porn, elder
porn, if you're into the elderly. Everything from hard-core porn with force,
mother-in-law relationships, threesomes. You name it, you were able to
access it.” She explained how the sites worked: “Each of these porn sites
had categories like a menu, and you could click on the categories, and it
would take you to numerous icons of different videos. All you had to do
was click on that icon, and the video immediately popped up, and you
watched it.”
DeWoody testified the videos on the Porn Hub and X Hamster Web sites
were much more explicit than pornography depicted in Playboy or an Rrated movie. In these videos, “you are seeing everything, and it's action.
Everything from masturbation to anal sex, oral copulation, intercourse. It's
all there and it's all in action.” When asked if there was any sort of artistic
value to what she saw, DeWoody said, “No artwork that I know anybody
would have.”
Analysis
We turn to determine whether sufficient evidence supports all six of the
convictions for exhibiting harmful matter to a minor. Section 313 defines
“‘[h]armful matter’ ” as “matter, [ (1) ] taken as a whole, which to the
average person, applying contemporary statewide standards, appeals to the
prurient interest, and [ (2) ] is matter which, taken as a whole, depicts or
describes in a patently offensive way sexual conduct and [ (3) ] which,
taken as a whole, lacks serious literary, artistic, political, or scientific value
for minors.” (§ 313, subd. (a).) This definition “essentially ‘tracks' the
three-prong test for obscenity articulated by the United States Supreme
Court in Miller v. California (1973) 413 U.S. 15 [37 L.Ed.2d 419],” adding
that the lack of serious artistic, political or scientific value must be
evaluated with regard to minors. (People v. Dyke (2009) 172 Cal.App.4th
1377, 1382–1383 (Dyke ).) “As to the first two prongs of the test for
harmful matter, nothing in section 313 indicates that the ‘average person’
applying ‘contemporary statewide standards' is anything other than an
average adult applying adult standards, or that the determination of whether
sexual conduct is depicted or described in a patently offensive way should
be made using anything but adult standards.” (Dyke, supra, at p. 1383,
italics & fn. omitted.)
“[I]n order to determine whether a portrayal of sex is patently offensive to
the average adult, ‘[a] reviewing court must, of necessity, look at the
context of the material, as well as its content.’ [Citation.]” (Dyke, supra,
172 Cal.App.4th at p. 1385.) “[T]he question of what is ‘“patently
offensive” ’ under the community standard obscenity test is essentially a
question of fact. [Citation.]” (Id. at p. 1384.)
28
14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Judicial decisions have defined the “patently offensive” prong under
sections 288.2 and 313 to prohibit the exhibition of hard-core pornography
to a minor, and, to affirm a conviction under section 288.2, have required a
sufficient factual showing for the fact finder to determine from the
exhibited material's content and context that the material was hard-core
pornography. In Dyke, the 16–year–old minor testified that, while she was
at the house of a friend, the defendant, who was her friend's father,
displayed what she referred to as “ ‘pornography’ ” on the television while
flipping through the channels. The minor remembered seeing a naked
woman dancing for somewhere between one and eight minutes and, for
around 45 seconds, the upper bodies of a naked man and woman who were
“ ‘having sex’ ” with the woman “on top.” The defendant stated to the
minor: “ ‘ “I shouldn't have this on because then you will have funny
dreams and feel funny.” ’ ” After the minor went to bed, defendant came
in, rubbed her breast, kissed her mouth and asked her if she was “horny.”
In addition to being convicted of section 288.2, subdivision (a), the
defendant was found guilty of misdemeanor sexual battery. (Dyke, supra,
172 Cal.App.4th at pp. 1380–1381, 1385.)
The appellate court held the evidence was insufficient to establish that the
television images constituted “harmful matter” for purposes of section
288.2, subdivision (a), noting that “nudity alone” and “portrayals of sexual
activity” are not per se obscene, even as to minors and “even if they may
be characterized as ‘dismally unpleasant, uncouth, and tawdry.’ [Citation.]”
(Dyke, supra, 172 Cal.App.4th at pp. 1384–1385.) The court cited United
States Supreme Court authority stating: “ ‘[A]n essential First Amendment
rule [is]: The artistic merit of a work does not depend on the presence of a
single explicit scene. [Citation.]’ ” (Id. at p. 1386.) The court observed that,
“in order to determine whether a portrayal of sex is patently offensive to
the average adult, ‘[a] reviewing court must, of necessity, look at the
context of the material, as well as its content’ [citation]” and the record
before it was missing “any context” from which it could be determined
whether what was depicted was patently offensive to the average adult. (Id.
at p. 1385.) The court concluded that, “[w]ithout more, neither we nor the
jury are permitted to presume that such content [a nude woman dancing
and a naked couple having sex, shown from the waist up] is patently
offensive to the average adult, applying statewide community standards.”
(Ibid.) The court found the minor's reference to “ ‘pornography’ ” equally
lacking in evidentiary weight without any testimony “as to what she meant
by that term, or how broadly it may have been intended.” (Id. at p. 1384,
fn. 5; see also People v. Powell (2011) 194 Cal.App.4th 1268, 1291
(Powell ).) It noted additionally: “[I]t is not the minor's opinion that
matters; the sexual conduct depicted must be judged patently offensive
under a single contemporary statewide standard.” (Dyke, supra, 172
Cal.App.4th at p. 1384, fn. 5.)
27
28
In Powell, supra, 194 Cal.App.4th 1268, the defendant was convicted of
raping his daughter (who was 10 years old or younger) and exposing her to
15
1
2
3
4
pornographic movies. (Id. at p. 1274.) With regard to the movies she was
shown, the victim testified they depicted “ ‘girls and boys' ” with their
penises and vaginas exposed, and they would engage in sexual activity. (Id.
at pp. 1284–1286.) She also described the man in these movies uncovering
his penis and “ ‘put[ting] his penis in the vagina,’ ” but the penis was
obscured by pixelization. (Id. at p. 1286.) Then they would have sex, which
she could see and hear them perform. (Ibid.)
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
In evaluating the sufficiency of the evidence as to section 288.2, the
appellate court noted that “nudity or depictions of sexual intercourse or
other sexual activity do not, by themselves, make a movie obscene.”
(Powell, supra, 194 Cal.App.4th at p. 1291.) The court noted that in Miller,
the Supreme Court held “ ‘no one will be subject to prosecution for the sale
or exposure of obscene materials unless these materials depict or describe
patently offensive “hard core” sexual conduct specifically defined by the
regulating state law, as written or construed.’ [Citation.]” (Powell, supra,
194 Cal.App.4th at p. 1293.) The Powell court observed: “Miller makes
plain that ‘hard-core pornography is synonymous with obscene
pornography.’ [Citation.] ‘Based on Miller, the law distinguishes between
hard-core pornography and soft-core pornography, which involves
depictions of nudity and limited and simulated sexual conduct. Because it
is not as graphic or explicit as hard-core pornography, soft-core
pornography is protected under the First Amendment.’ [Citation.]” (Powell,
supra, at p. 1293.)
“‘Softcore (or soft porn) is a form of pornography, either video or nude
glamour photography, that is less explicit than hardcore material in
depicting or describing sexual behavior. Softcore does not depict explicit
sexual contact, but ranges from nudity to simulated intercourse. While both
softcore and hardcore feature sexual situations with the intention of
arousing the viewer, the key difference is that softcore does not clearly
show aroused genitalia (including masturbation), ejaculation, or penetration
(vaginal, anal and/or oral).’ [Citation.] ‘In contrast to hard-core
pornography, which depicts full male nudity and actual sex, soft-core sex is
more simulated than real, and the films usually attempt to have coherent
storylines and dialogue.’ [Citation.]” (Powell, supra, at p. 1294.)
The appellate court in Powell concluded that, for the most part, the victim's
description of the movies she was shown was insufficient to determine
whether the material was “obscene.” (Powell, supra, at p. 1293.) However,
the victim's description of seeing a movie depicting people engaged in
sexual activity in which “ ‘some of their men parts and women parts
weren't blocked,’ ” and “[p]enises, breasts, and vaginas [were] featured in
lewd displays as the actors ‘did it,’ i.e., engaged in sexual activity and not
just kissing” established she had been shown hard-core pornography and
was sufficient to satisfy the “harmful matter” element of the offense. (Id. at
p. 1295.)
28
16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
In the present matter, the victims' testimony, the investigator's testimony,
and the reasonable inferences drawn from those statements, make it clear
that what defendant showed the victims was hard-core pornography, except
as to Ronald and Chris. Defendant showed N.C. and G.W. a cell phone
video of a young man who suffers from autism and mental retardation
masturbating. Defendant apparently participated in making the video, as he
is heard in the background encouraging the young man to go on. This was
hard core pornography in one of its vilest forms, exploiting a disabled
minor who lacked the mental acuity to consent to sex solely for defendant's
prurient interest.
Defendant also showed G.W. videos from Web sites that depicted men
having anal sex. G.W. would not have been able to say what the videos
depicted unless he had actually seen the performance of anal sex while
viewing them. These videos constituted hard-core pornography.
Sufficient evidence also supports the jury's findings that defendant showed
hard-core pornography to Anthony and K.S. From the X Hamster and Porn
Hub Web sites, defendant showed Anthony a video that depicted a man
inserting his penis into a woman's vagina. From the X Hamster Web site,
defendant showed K.S. videos that depicted couples “having sex” and
“fucking each other.” These videos were accessed through Web sites
whose function was to exhibit hard-core pornography. It was thus
reasonable for the jury to infer from the victims' testimony in light of the
investigator's description of the Web sites that the videos defendant showed
Anthony and K.S. were hard-core pornography.
16
17
18
19
20
21
22
23
24
25
The evidence supporting defendant's convictions of showing harmful
matter to Ronald and Chris, however, is insufficient. Ronald described the
videos he saw as “porn” involving “a guy and a girl,” but he did not
explain the source or context of the videos he saw. Chris described the
videos he saw as “adult clips.” One was from a VHS tape that depicted a
“girl and a guy having sex.” Other clips were from the X Hamster Web
site, but Chris did not describe what he saw in those clips. The testimony of
these two victims does not provide sufficient descriptions of content and
context from which the jury could infer the videos defendant showed them
were hard-core pornography.
We conclude there is sufficient evidence to support defendant's convictions
under section 288.2 for showing harmful matter to N.C., G.W., Anthony,
and K.S. (counts XX, XVIII, VIII, and IV), but not for showing harmful
matter to Chris and Ronald (counts XVI and XIX).
Lopez, 2014 WL 5796683, at *4–8. Petitioner raised his sufficiency of evidence claims in a
26
petition for review to the California Supreme Court which was summarily rejected. Lodg. Doc.
27
No. 11 (Petition for Review); Lodg. Doc. No. 12 (Order Denying Review).
28
17
1
1. Applicable Legal Standards
2
The Due Process Clause “protects the accused against conviction except upon proof
3
beyond a reasonable doubt of every fact necessary to constitute the crime with which he is
4
charged.” In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a
5
conviction if, “after viewing the evidence in the light most favorable to the prosecution, any
6
rational trier of fact could have found the essential elements of the crime beyond a reasonable
7
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “[T]he dispositive question under Jackson
8
is ‘whether the record evidence could reasonably support a finding of guilt beyond a reasonable
9
doubt.’” Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318).
10
Put another way, “a reviewing court may set aside the jury's verdict on the ground of insufficient
11
evidence only if no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 565
12
U.S. 1,2 (2011). Sufficiency of the evidence claims in federal habeas proceedings must be
13
measured with reference to substantive elements of the criminal offense as defined by state law.
14
Jackson, 443 U.S. at 324 n.16.
15
In conducting federal habeas review of a claim of insufficient evidence, “all evidence
16
must be considered in the light most favorable to the prosecution.” Ngo v. Giurbino, 651 F.3d
17
1112, 1115 (9th Cir. 2011). “Jackson leaves juries broad discretion in deciding what inferences
18
to draw from the evidence presented at trial,” and it requires only that they draw “‘reasonable
19
inferences from basic facts to ultimate facts.’” Coleman v. Johnson, 566 U.S. 650, 655 (2012)
20
(per curiam ) (citation omitted). “‘Circumstantial evidence and inferences drawn from it may be
21
sufficient to sustain a conviction.’” Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (citation
22
omitted).
23
If the record supports conflicting inferences, the reviewing court “must presume — even
24
if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts
25
in favor of the prosecution, and must defer to that resolution.” McDaniel v. Brown, 558 U.S. 120,
26
133 (2010) (per curiam) (quoting Jackson, 443 U.S. at 326). In evaluating the evidence presented
27
/////
28
/////
18
1
at trial, this court may not weigh conflicting evidence or consider witness credibility. Wingfield
2
v. Massie, 122 F.3d 1329, 1332 (10th Cir. 1997). Instead, as noted above, the Court must view
3
the evidence in the “light most favorable to the prosecution,” Jackson, 443 U.S. at 319.
4
Juries have broad discretion in deciding what inferences to draw from the evidence
5
presented at trial. This court may not “impinge[ ] on the jury's role as factfinder,” or engage in
6
“fine-grained factual parsing.” Coleman, 566 U.S. at 655. As the Ninth Circuit has explained,
7
“[t]he relevant inquiry is not whether the evidence excludes every hypothesis except guilt, but
8
whether the jury could reasonably arrive at its verdict.” United States v. Mares, 940 F.2d 455,
9
458 (9th Cir. 1991). Under Jackson, the Court need not find that the conclusion of guilt was
10
compelled, only that it rationally could have been reached. Drayden v. White, 232 F.3d 704, 709-
11
10 (9th Cir. 2000).
12
“A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging
13
the sufficiency of the evidence used to obtain a state conviction on federal due process grounds.”
14
Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). Because this case is governed by the Anti-
15
Terrorism and Effective Death Penalty Act, this court owes a “double dose of deference” to the
16
decision of the state court. Long v. Johnson, 736 F.3d 891, 896 (9th Cir. 2013) (quoting Boyer v.
17
Belleque, 659 F.3d 957, 960 (9th Cir. 2011)). See also Coleman, 565 U.S. at 651 (“Jackson
18
claims face a high bar in federal habeas proceedings because they are subject to two layers of
19
judicial deference.”); Kyzar v. Ryan, 780 F.3d 940, 943 (9th Cir. 2015) (same).
20
21
2. Analysis
Section 288.2 of the California Penal Code prohibits exhibiting “harmful matter” to a
22
minor with “the intent of arousing, appealing to, or gratifying the lust or passions or sexual
23
desires of that person or of the minor . . .” Cal. Pen. Code § 288.2, subd. (a), (c). ‘Harmful
24
matter’ is, per section 313 of the code, defined as:
25
26
27
[M]atter, taken as a whole, which to the average person, applying contemporary
statewide standards, appeals to the prurient interest, and is matter which, taken as a
whole, depicts or describes in a patently offensive way sexual conduct and which,
taken as a whole, lacks serious literary, artistic, political, or scientific value for
minors.
28
19
1
Cal. Pen. Code § 313 (a). The Court of Appeal, as previously indicated, found that there was
2
sufficient evidence to uphold four4 convictions for exhibiting harmful matter to four (N.C., G.W.,
3
Anthony, and K.S.) of the six victims. It noted that testimony from the both the victims and
4
investigators indicated that: (1) petitioner showed N.C. and G.W. video of an autistic youth
5
masturbating; (2) petitioner showed G.W. video of men having anal sex; (3) petitioner showed
6
Anthony a video of vaginal intercourse from a hard-core pornographic website; and (4) petitioner
7
showed K.S. videos of couples engaging in intercourse on a hard-core pornographic website.
8
Lopez, 2014 WL 5796683, at *7-8. This testimony is clearly presented in the record. Lodg. Doc.
9
No. 4 (Reporter’s Transcript Vol. II) at 451-52, 472-73, 519, 566-67. For his part, petitioner has
10
only vaguely alleged that the evidence is insufficient. ECF No. 25 at 16. He has not explained
11
how the Court of Appeal’s rejection of his challenge to the sufficiency of the evidence was
12
contrary to, or an unreasonable application of, any clearly established Federal Law. It bears
13
reiterating that, under Jackson, the court need conclude only that the jury could have rationally
14
reached its verdict. Here, the record simply does not support petitioner’s conclusory contention
15
that a finding in his favor on these counts was the only reasonable outcome.
16
17
18
19
20
21
22
23
24
25
26
27
28
C. Admission of Prior, Uncharged Sex Offense
Finally, petitioner contends that the admission of prior, uncharged sex offenses violated
his due process rights.5 ECF No. 25 at 17-18. The Court of Appeal rejected this claim:
The trial court admitted evidence under Evidence Code section 1108 of a
prior uncharged sex offense committed by defendant. Defendant contends
the court abused its discretion by admitting the evidence because, under
Evidence Code section 352, the evidence was more prejudicial than
probative. He asserts the evidence was more prejudicial because it
concerned an event that was not in close proximity to the charged offenses,
was not corroborated, and did not result in conviction or punishment. He
4
As noted supra, two of these convictions were overturned by the Court of Appeal.
Accordingly, this court does not reach them. North Carolina v. Rice, 404 U.S. 244, 246 (1971)
(“[F]ederal courts are without power to decide questions that cannot affect the rights of litigants
in the case before them.”).
5
Petitioner also alleges that his state due process rights were violated. ECF No. 25 at 1718. These claims are not cognizable, however. Estelle v. McGuire, 502 U.S. 62, 68, 112 S. Ct.
475, 116 L. Ed. 2d 385 (1991) (“In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”).
20
1
2
3
claims admitting the evidence violated his constitutional rights to due
process. We disagree with his contentions. The trial court did not abuse its
discretion by admitting the evidence.
Additional background information
4
5
6
7
8
9
10
11
12
13
14
15
Defendant moved in limine to exclude evidence offered under Evidence
Code section 1108, arguing the evidence was unduly prejudicial under
Evidence Code section 352. The prosecution opposed. It sought to
introduce the testimony of Sergio A. concerning an uncharged sex act
committed by defendant against him some six years before defendant
committed the acts at issue here, and it argued the evidence was not unduly
prejudicial.
The trial court denied plaintiff's motion. It found the testimony to be highly
probative and no more inflammatory than the testimony to be introduced
by the other victims. It found the testimony was not stale, and that it would
not distract the jury or consume an undue amount of time.
Sergio A. testified at trial. At that time, he was 19 years old. He became
acquainted with defendant, his mother's friend, in about 2004 at the age of
11. Defendant gave Sergio A. money and gifts. They would smoke
marijuana and watch pornography together. Defendant told Sergio A. he
was “really cute.” He occasionally would smack Sergio A.'s buttocks, or
would give him very long hugs. These statements and actions made Sergio
A. uncomfortable. Defendant gave Sergio A. marijuana and alcohol.
16
17
18
19
20
21
22
One night, Sergio A. was falling asleep on his bed lying on his stomach.
Defendant sat next to him and massaged his back. Defendant was saying
something, but Sergio A. was “half asleep.” Then defendant pulled down
Sergio A.'s pants. Sergio A. turned around quickly to look at defendant,
and saw that defendant had exposed his penis. Sergio A. asked defendant
what he was doing, but defendant tried “to play it off” and denied doing
anything. Sergio A. then called out for his uncle. On cross-examination,
Sergio A. stated defendant had pulled his pants down to his “butt cheek,”
was “massaging [his] back,” and “then he tried to touch me with his
freakin' wiener.” Defendant testified he told this point to the prosecutor's
investigator.
23
Analysis
24
25
26
27
28
Evidence Code section 1108 authorizes a trial court to admit evidence of a
defendant's prior sexual offenses as propensity evidence in a sex crime case
when the evidence is not inadmissible under Evidence Code section 352.
(Evid.Code, § 1108, subd. (a).) When determining whether evidence of
prior sex offenses is prejudicial under Evidence Code section 352, “ ‘trial
judges must consider such factors as its nature, relevance, and possible
remoteness, the degree of certainty of its commission and the likelihood of
21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
confusing, misleading, or distracting the jurors from their main inquiry, its
similarity to the charged offense, its likely prejudicial impact on the jurors,
the burden on the defendant in defending against the uncharged offense,
and the availability of less prejudicial alternatives to its outright admission,
such as admitting some but not all of the defendant's other sex offenses, or
excluding irrelevant though inflammatory details surrounding the offense.’
(People v. Falsetta [ (1999) 21 Cal.4th 903,] 917.) The court's ruling under
[Evidence Code] section 1108 is subject to review for abuse of discretion.
(People v. Story [ (2009) 45 Cal.4th 1282,] 1295.)” (People v. Loy (2011)
52 Cal.4th 46, 61.)
We conclude the trial court did not abuse its discretion in admitting Sergio
A.'s testimony. The testimony was probative and not unduly inflammatory.
It was probative of defendant's propensity to groom and molest young men
in their early teens, as he did with the victims here. And Sergio A.'s
testimony was far less inflammatory than the victims' testimony of what
defendant did to them.
The event of which Sergio A. testified was not so remote as to be
irrelevant. Under Evidence Code section 1108, courts have admitted
evidence of similar uncharged sex acts committed up to 30 years before the
charged acts were committed. (See, e.g., People v. Branch (2001) 91
Cal.App.4th 274, 284 [30 years]; People v. Waples (2000) 79 Cal.App.4th
1389, 1393–1395 [between 15 and 22 years].) Six years is not too remote,
particularly due to the similarities between defendant's actions against
Sergio A. and the victims here.
16
17
18
19
20
21
22
23
24
25
26
27
28
The testimony also did not distract the jury or consume an undue amount of
time. Sergio A.'s testimony takes up only 20 pages of the 954–page
reporter's transcript.
Defendant complains Sergio A.'s testimony was unduly prejudicial because
it was not corroborated by any other eyewitnesses, Sergio A. had a motive
to lie because he believed defendant introduced his mother to drugs, Sergio
A. never disclosed the incident until he learned about this case, and Sergio
A.'s claim was never presented to a jury for determination. These issues go
more toward credibility than admissibility and prejudice.
“The prejudice that [Evidence Code] section 352 ‘ “is designed to avoid is
not the prejudice or damage to a defense that naturally flows from relevant,
highly probative evidence.” [Citations]. “Rather, the statute uses the word
in its etymological sense of ‘prejudging’ a person or cause on the basis of
extraneous factors. [Citation.]” [Citation.]' [Citation.] In other words,
evidence should be excluded as unduly prejudicial when it is of such nature
as to inflame the emotions of the jury, motivating them to use the
information, not to logically evaluate the point upon which it is relevant,
but to reward or punish one side because of the jurors' emotional reaction.
In such a circumstance, the evidence is unduly prejudicial because of the
22
1
2
3
4
5
6
substantial likelihood the jury will use it for an illegitimate purpose.”
(Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009.)
Defendant has not demonstrated Sergio A.'s testimony was so
inflammatory as to motivate the jurors to decide his case based solely on
their emotional reaction to uncharged sex act evidence, or that the trial
court's admission of the evidence was arbitrary or capricious. We thus
conclude the court did not abuse its discretion admitting the evidence, and
defendant suffered no loss of his due process rights.
7
Lopez, 2014 WL 5796683, at *8–10. Petitioner raised his sufficiency of evidence claims in a
8
petition for review to the California Supreme Court which was summarily rejected. Lodg. Doc.
9
No. 11 (Petition for Review); Lodg. Doc. No. 12 (Order Denying Review).
10
11
1. Applicable Legal Standards
The United States Supreme Court has not ruled on the question of whether admission of
12
propensity evidence violates due process. Estelle, 502 U.S. at 75, n.5 (“Because we need not
13
reach the issue, we express no opinion on whether a state law would violate the Due Process
14
Clause if it permitted the use of ‘prior crimes’ evidence to show propensity to commit a charged
15
crime.”). As such, there is no clearly established federal law addressing this issue. Habeas relief
16
may still issue on this claim, however, if petitioner can show that the admission of these
17
uncharged acts was fundamentally unfair and resulted in a denial of due process. Id. at 72.
18
Constitutional due process is violated if there are no permissible inferences to be drawn from the
19
challenged evidence. Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991). “Evidence
20
introduced by the prosecution will often raise more than one inference, some permissible, some
21
not; we must rely on the jury to sort them out in light of the court's instructions.” Id. at 920. “A
22
habeas petitioner bears a heavy burden in showing a due process violation based on an
23
evidentiary decision.” Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005).
24
25
2. Analysis
As noted above, there is no clearly established federal law proscribing the admission of
26
propensity evidence. As such, he would be entitled to relief only if the jury could draw no
27
permissible inferences from it. The Court of Appeal held that the testimony was “probative of
28
23
1
defendant’s propensity to groom and molest young men in their early teens, as he did here.”
2
Lopez, 2014 WL 5796683, at *9. The court finds that this was not an unreasonable determination
3
and that such an inference would be permissible under federal law. See Alberni v. McDaniel, 458
4
F.3d 860, 863-67, 866 n.1 (9th Cir. 2006) (recognizing that the Supreme Court has not clearly
5
established that the introduction of propensity evidence violates due process and that it has denied
6
certiorari on the issue at least four times). Accordingly, petitioner is not entitled to habeas relief
7
on this claim.
8
IV. Conclusion
9
10
Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of
habeas corpus be denied.
11
These findings and recommendations are submitted to the United States District Judge
12
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
13
after being served with these findings and recommendations, any party may file written
14
objections with the court and serve a copy on all parties. Such a document should be captioned
15
“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
16
shall be served and filed within fourteen days after service of the objections. Failure to file
17
objections within the specified time may waive the right to appeal the District Court’s order.
18
Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
19
1991). In his objections petitioner may address whether a certificate of appealability should issue
20
in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing
21
Section 2254 Cases (the district court must issue or deny a certificate of appealability when it
22
enters a final order adverse to the applicant).
23
DATED: November 16, 2017.
24
25
26
27
28
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?