Sanchez v. Martinez

Filing 29

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 11/16/2020 ORDERING the Clerk to randomly assign a district judge to this case and RECOMMENDING petitioner's 1 petition for a writ of habeas corpus be denied. Assigned and referred to Judge Kimberly J. Mueller; Objections to F&R due within 30 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SANTIAGO SANCHEZ,

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Petitioner,

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No. 2:17-cv-0455 DB P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

JOEL MARTINEZ,

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Respondent.

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Petitioner is a state prisoner proceeding with a petition for a writ of habeas corpus under

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28 U.S.C. § 2254. Petitioner challenges his convictions imposed by the Sacramento County

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Superior Court in 2013 for crimes involving sexual misconduct with children. Petitioner alleges:

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(1) there was insufficient evidence to support count 1; (2) the exclusion of impeachment evidence

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violated his rights to due process; (3) numerous instances of prosecutorial misconduct; (4)

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admission of evidence of Child Sexual Abuse Accommodation Syndrome violated his due

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process and other rights; and (5) the cumulative effect of all errors violated due process. For the

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reasons set forth below, this court will recommend the petition be denied.

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BACKGROUND
I. Facts Established at Trial

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The California Court of Appeal for the Third Appellate District provided the following
factual summary:

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Defendant was 19 years old and volunteering at an afterschool program when he met S.S. Despite the fact defendant was
seven or eight years older than S.S., the two became friends. About
a month later, defendant met S.S.'s mother, C.C., at the after-school
program and was invited over to their house to meet her husband,
J.A., with whom defendant shared an interest in automotive repair
and body work. At the house, defendant also met the other children
in the household, D.C., M.C., and their younger brother, E.C. Over
the course of about a year, defendant and J.A. became friends and
worked on cars together. Defendant also routinely watched the
children when their parents went out.

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In August 2011, defendant committed the crimes involved in
this case. He was 20 years old. His victims, D.C. and M.C., were
eight years old and 10 years old, respectively.

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Crimes against M.C.

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Defendant stayed the night at the family's house on August 1,
2011. While watching a movie with the children in the living room,
defendant touched M.C. twice with his hand on her vaginal area, over
her clothes, removing it about “two seconds” after M.C. told him to
“stop.” The next morning, defendant was asked to watch the children
while C.C. went to work and J.A. went to Pick–n–Pull. He agreed.
Before J.A. left, M.C. told him defendant was “bothering” her; not
understanding the seriousness of the situation, J.A. told her to “just
tell him to stop bothering you.” That day, the children had various
chores to do. Defendant contributed by helping S.S. with the yard
work. As defendant watered the front lawn, M.C. passed by him on
her way to get a hedge trimmer for S.S. Defendant reached out and
briefly touched her chest with the back of his hand. Believing
defendant did so “on purpose” because “he was smiling,” M.C. told
him to “stop.” Defendant responded that “he wasn't doing anything
wrong.” When she again passed by defendant to get a shovel for S.S.,
defendant again reached out and briefly touched her with the back of
his hand, this time on her vaginal area. M.C. again told him to “stop.”
Defendant again said he “didn't do anything.” Defendant confirmed
in his statement to police that he touched M.C.'s chest “like one time”
and he touched her vaginal area “like twice,” always over her
clothing.

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Based on these facts, as previously mentioned, defendant was
convicted of two counts of committing a lewd or lascivious act on
M.C., a child under the age of 14 years.

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Crimes against D.C.

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After defendant finished watering the lawn, the children
asked to play in the swimming pool. Defendant agreed. While he and
S.S. finished up the yard work, the other children went inside the
house to change into swimming suits. After the children had
changed, defendant went into S.S.'s bedroom to change into some
shorts. The record is unclear as to whether D.C. was already in the
bedroom when defendant came in, or whether she came into the room
after defendant had changed. Either way, she began playing with
S.S.'s guitar on the bottom bunk of the bunk beds S.S. shared with
his younger brother, E.C. Defendant took the guitar away and
climbed on top of her. By his own account, he pulled her swimming
suit to the side to expose her vagina, and pulled up one of the leg
openings of his shorts to allow him to pull out his penis. He then
attempted to insert his penis into D.C.'s vagina, but was unsuccessful
because his penis was not erect.

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Unbeknownst to defendant, S.S. had entered the house
looking for D.C. Having seen defendant touch M.C.'s buttocks on
two previous occasions, S.S. decided to keep “a closer eye on him.”
With this purpose in mind, S.S. entered the house quietly through the
back door, “snuck around the corner to check the living room,” and
then “went down the hallway a little.” From the hallway, S.S. saw
defendant on top of D.C. on the bed. Defendant's “hip area ... was
moving up and down.” D.C. told defendant to “[s]top.” Defendant
responded: “Just go with it.” S.S. “stood there for about a minute”
trying to decide what to do. He considered confronting defendant,
but “figured if [he] did that, that [defendant] would leave and would
most likely, probably, get away with it.” Instead, S.S. left the house
“to go call the cops.” On his way out, S.S. told M.C. to “stay outside”
and that he “would be back.” He then got on his bicycle and rode to
a neighbor's house. When this neighbor was not home, S.S. rode to a
nearby gas station and used a stranger's cell phone to call 911.

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Meanwhile, according to defendant's statement to police, he
stopped his assault on D.C. shortly after it began and allowed her to
go outside to play with her siblings. Defendant also told police he
penetrated D.C.'s vagina with one of his fingers while giving her a
piggyback ride down the hallway. His statement is unclear as to when
exactly this took place, except that it happened before he tried having
sex with her and she was already wearing her swimming suit.
Regardless of the precise timing, defendant admitted: “I was tryin[g]
to put it in there. My finger.” He also admitted he succeeded in
penetrating D.C.'s vagina with his finger. When asked whether it
turned him on, defendant answered: “Uh, yes, a little.” When asked
whether it probably caused him to then try something more with
D.C., defendant responded: “Yeah.”

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Based on these facts, as previously mentioned, defendant was
convicted of one count of sexual penetration, one count of attempted
sexual intercourse, and two counts of committing a lewd or
lascivious act on D.C., a child under the age of 14 years.

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Police arrived at the house a short time after S.S. made the
call to 911. Defendant was taken into custody, advised of his
Miranda rights and questioned. He eventually admitted to touching
M.C.'s vagina and chest over her clothes, penetrating D.C.'s vagina
with his finger while giving her a piggyback ride, and attempting to
penetrate her vagina with his penis while on the bed. Defendant also
wrote down that he “made a mistake” when he “tr[ied] to put
something in [D.C.],” but he “was not thrusting” and stopped when
she told him to stop. He also wrote a letter apologizing to the family
for his actions.

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People v. Sanchez, 246 Cal. App. 4th 167, 170-72 (2016) (footnotes omitted).

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II. Procedural Background
A. Judgment and Sentencing

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On February 15, 2013, a jury found petitioner guilty of the following:

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Count 1 - sexual digital penetration of a child under ten years of age in violation of Cal.

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Penal Code § 288.7(b);
Counts 2, 4, 5, and 7 - lewd and lascivious act upon a child under the age of fourteen in

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violation of Cal. Penal Code § 288(a);
Count 3 - attempted sexual intercourse or sodomy of a child under ten years of age in

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violation of Cal. Penal Code §§ 664/288.7(a); and
Count 6 - battery in violation of Cal. Penal Code § 242.

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The jury found true the allegation that appellant committed the above offenses against more than

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one victim within the meaning of California Penal Code § 667.61(e)(4). (2 RT 1081-82.)
On March 15, 2013, the court found petitioner ineligible for probation and sentenced him

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to an aggregate indeterminate term of 65 years-to-life in prison. (2 RT 1096-99.)

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B. State Appeal and Federal Proceedings

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On March 15, 2013, petitioner appealed to the California Court of Appeal, Third

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Appellate District, case no. C073360.1 (1 CT 484.) In 2016, the Court of Appeal affirmed

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Respondent lodged the following portions of the state court record: petitioner’s opening brief on
appeal (Lodged Document “LD” 1), respondent’s response (LD 2), petitioner’s reply (LD 3), the
decision of the California Court of Appeal (LD 4), the petition for review to the California
Supreme Court (LD 6), and the California Supreme Court’s denial of review (LD 7). Respondent
also lodged the Clerk’s Transcript (“CT”), the Record of Transcript (“RT”), and the Record of
Transcript on Remand (“RT REMAND”).
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petitioner’s convictions, but remanded the matter for resentencing with directions to the superior

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court to exercise its discretion under rule 4.425 of the California Rules of Court in deciding

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whether to impose consecutive or concurrent sentences for petitioner’s crimes. Sanchez, 246 Cal.

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App. 4th at 170.

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On May 9, 2016, petitioner filed a petition for review in the California Supreme Court,

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case no. S234355, which was denied in a summary order on June 29, 2016.2 (LD 6, 7.) On

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August 24, 2016, on remand, the trial court resentenced appellant to an aggregate indeterminate

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term of 50 years to life. (RT REMAND 2-5.)

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On March 1, 2017, petitioner filed the present petition for writ of habeas corpus with this

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court. (ECF No. 1.) Respondent filed an answer (ECF No. 15) and petitioner filed a traverse

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(ECF No. 24).

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STANDARDS OF REVIEW APPLICABLE TO HABEAS CORPUS CLAIMS

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An application for a writ of habeas corpus by a person in custody under a judgment of a

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state court can be granted only for violations of the Constitution or laws of the United States. 28

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U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or

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application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502

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U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

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Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:

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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 –

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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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In the answer, respondent frequently refers to this petition as a petition for a writ of habeas
corpus. That appears to be an error. The document is a petition for review of the Court of
Appeals’ decision. (See LD 6.) There is no indication that petitioner filed any petitions for
habeas corpus relief in the state courts.
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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.
For purposes of applying § 2254(d)(1), “clearly established federal law” consists of

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holdings of the United States Supreme Court at the time of the last reasoned state court decision.

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Greene v. Fisher, 565 U.S. 34, 37 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011)

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(citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent “‘may be

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persuasive in determining what law is clearly established and whether a state court applied that

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law unreasonably.’” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th

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Cir. 2010)). However, circuit precedent may not be “used to refine or sharpen a general principle

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of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not

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announced.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (citing Parker v. Matthews, 567 U.S.

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37 (2012)). Nor may it be used to “determine whether a particular rule of law is so widely

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accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be

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accepted as correct.” Id. at 1451. Further, where courts of appeals have diverged in their

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treatment of an issue, it cannot be said that there is “clearly established Federal law” governing

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that issue. Carey v. Musladin, 549 U.S. 70, 76-77 (2006).

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A state court decision is “contrary to” clearly established federal law 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. Price v. Vincent, 538 U.S. 634, 640 (2003)

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(quoting Williams, 529 U.S. at 405-06). “Under the ‘unreasonable application’ clause of §

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2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct

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governing legal principle from th[e] [Supreme] Court's decisions, but unreasonably applies that

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principle to the facts of the prisoner's case.’” Lockyer v. Andrade, 538 U.S. 63, 75 (2003)

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(quoting Williams, 529 U.S. at 413); Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). “[A]

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federal habeas court may not issue the writ simply because that court concludes in its independent

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judgment that the relevant state-court decision applied clearly established federal law erroneously

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or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 411;

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see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Andrade, 538 U.S. at 75 (“It is not
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enough that a federal habeas court, in its independent review of the legal question, is left with a

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firm conviction that the state court was erroneous.” (Internal citations and quotation marks

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omitted.)). “A state court's determination that a claim lacks merit precludes federal habeas relief

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

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Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652,

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664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a

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state prisoner must show that the state court's ruling on the claim being presented in federal court

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was so lacking in justification that there was an error well und erstood and comprehended in

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existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.

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There are two ways a petitioner may satisfy subsection (d)(2). Hibbler v. Benedetti, 693

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F.3d 1140, 1146 (9th Cir. 2012). He may show the state court’s findings of fact “were not

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supported by substantial evidence in the state court record” or he may “challenge the fact -finding

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process itself on the ground it was deficient in some material way.” Id. (citing Taylor v. Maddox,

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366 F.3d 992, 999-1001 (9th Cir. 2004)); see also Hurles v. Ryan, 752 F.3d 768, 790-91 (9th Cir.

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2014) (If a state court makes factual findings without an opportunity for the petitioner to present

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evidence, the fact-finding process may be deficient and the state court opinion may not be entitled

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to deference.). Under the “substantial evidence” test, the court asks whether “an appellate panel,

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applying the normal standards of appellate review,” could reasonably conclude that the finding is

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supported by the record. Hibbler, 693 F.3d at 1146 (9th Cir. 2012).

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The second test, whether the state court’s fact-finding process is insufficient, requires the

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federal court to “be satisfied that any appellate court to whom the defect [in the state court’s fact -

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finding process] is pointed out would be unreasonable in holding that the state court’s fact-finding

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process was adequate.” Hibbler, 693 F.3d at 1146-47 (quoting Lambert v. Blodgett, 393 F.3d

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943, 972 (9th Cir. 2004)). The state court’s failure to hold an evidentiary hearing does not

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automatically render its fact finding process unreasonable. Id. at 1147. Further, a state court may

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make factual findings without an evidentiary hearing if “the record conclusively establishes a fact

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or where petitioner’s factual allegations are entirely without credibility.” Perez v. Rosario, 459

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F.3d 943, 951 (9th Cir. 2006) (citing Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003)).
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The court looks to the last reasoned state court decision as the basis for the state court

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judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

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“[I]f the last reasoned state court decision adopts or substantially incorporates the reasoning from

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a previous state court decision, [this court] may consider both decisions to ‘fully ascertain the

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reasoning of the last decision.’” Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en

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banc) (quoting Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005)). “When a federal claim

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has been presented to a state court and the state court has denied relief, it may be presumed that

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the state court adjudicated the claim on the merits in the absence of any indication or state-law

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procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption may be

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overcome by showing “there is reason to think some other explanation for the state court's

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decision is more likely.” Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

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Similarly, when a state court decision on a petitioner's claims rejects some claims but does not

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expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that

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the federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289, 293 (2013).

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When it is clear, that a state court has not reached the merits of a petitioner’s claim, the

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deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court

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must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099,

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1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

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If a petitioner overcomes one of the hurdles posed by section 2254(d), the federal court

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reviews the merits of the claim de novo. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir.

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2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is now clear

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both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is

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such error, we must decide the habeas petition by considering de novo the constitutional issues

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raised.”). For the claims upon which petitioner seeks to present evidence, petitioner must meet

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the standards of 28 U.S.C. § 2254(e)(2) by showing that he has not “failed to develop the factual

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basis of [the] claim in State court proceedings” and by meeting the federal case law standards for

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the presentation of evidence in a federal habeas proceeding. See Cullen v. Pinholster, 563 U.S.

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170, 186 (2011).
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ANALYSIS

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Petitioner alleges the following claims: (1) there was insufficient evidence of digital

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penetration to support count 1; (2) the exclusion of impeachment evidence violated his rights to

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due process; (3) numerous instances of prosecutorial misconduct violated his due process rights;

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(4) admission of evidence of Child Abuse Accommodation Syndrome violated his due process

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rights; and (5) the cumulative effect of all errors violated due process. For the reasons set forth

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below, this court finds petitioner fails to satisfy the requirements of 28 U.S.C. § 2254(d) and

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recommends the petition be denied.

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I. Claim 1 – Insufficient Evidence of Corpus Delicti
Petitioner argues his conviction on count 1 violates the “corpus delicti rule” because there

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was no evidence to support the act of digital penetration apart from petitioner’s confession to it.

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(See ECF No. 1 at 59-60.)

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A. Applicable Legal Standards

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The United States Supreme Court has held that when reviewing a sufficiency of the

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evidence claim, a court must determine whether, viewing the evidence and the inferences to be

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drawn from it in the light most favorable to the prosecution, any rational trier of fact could find

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the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

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319 (1979). A reviewing court may set aside the jury's verdict on the ground of insufficient

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evidence only if no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 565

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U.S. 1, 2 (2011) (per curiam). Moreover, “a federal court may not overturn a state court decision

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rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with

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the state court. The federal court instead may do so only if the state court decision was

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‘objectively unreasonable.’” Id. (citing Renico v. Lett, 559 U.S. 766 (2010)). The Supreme

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Court cautioned that “[b]ecause rational people can sometimes disagree, the inevitable

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consequence of this settled law is that judges will sometimes encounter convictions that they

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believe to be mistaken, but that they must nonetheless uphold.” Id.

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B. State Court Opinion
Defendant contends the evidence was insufficient to establish
the corpus delicti of the crime of sexual penetration. He is mistaken.
“In every criminal trial, the prosecution must prove the
corpus delicti, or the body of the crime itself—i.e., the fact of injury,
loss, or harm, and the existence of a criminal agency as its cause. In
California, it has traditionally been held, the prosecution cannot
satisfy this burden by relying exclusively upon the extrajudicial
statements, confessions, or admissions of the defendant. [Citations.]
Though mandated by no statute, and never deemed a constitutional
guaranty, the rule requiring some independent proof of the corpus
delicti has roots in the common law. [Citation.] California decisions
have applied it at least since the 1860's. [Citation.]” (People v.
Alvarez (2002) 27 Cal.4th 1161, 1168–1169, 119 Cal.Rptr.2d 903,
46 P.3d 372 (Alvarez).) “The purpose of the corpus delicti rule is to
assure that ‘the accused is not admitting to a crime that never
occurred.’ ” (People v. Jones (1998) 17 Cal.4th 279, 301, 70
Cal.Rptr.2d 793, 949 P.2d 890 (Jones), quoting People v. Jennings
(1991) 53 Cal.3d 334, 368, 279 Cal.Rptr. 780, 807 P.2d 1009
(Jennings).)
“The independent proof may be circumstantial and need not
be beyond a reasonable doubt, but is sufficient if it permits an
inference of criminal conduct, even if a noncriminal explanation is
also plausible. [Citations.] There is no requirement of independent
evidence of every physical act constituting an element of an offense,’
so long as there is some slight or prima facie showing of injury, loss,
or harm by a criminal agency. [Citation.] In every case, once the
necessary quantum of independent evidence is present, the
defendant's extrajudicial statements may then be considered for their
full value to strengthen the case on all issues. [Citations.]” (Alvarez,
supra, 27 Cal.4th at p. 1171, 119 Cal.Rptr.2d 903, 46 P.3d 372;
People v. Robbins (1988) 45 Cal.3d 867, 885–886, 248 Cal.Rptr.
172, 755 P.2d 355 (Robbins), superseded by statute on another
ground as stated in Jennings, supra, 53 Cal.3d at p. 387, fn. 13, 279
Cal.Rptr. 780, 807 P.2d 1009.)
Defendant argues: “There was no evidence of count one,
digital penetration of [D.C.] when she was on [defendant's] back (
288.7, subd. (b)), other than [defendant's] own admission, in the
course of the police interrogation, that he had touched her in that way
while giving her a piggyback ride.” We agree defendant's admission
is the only direct evidence of the digital penetration. D.C. did not
testify to this specific criminal act and did not reveal it in the special
assault forensic evaluation (SAFE) interview. Nor did anyone else
witness the crime. Nevertheless, we conclude the circumstantial
evidence is more than sufficient to establish the corpus delicti of
sexual penetration.

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The court then went on to examine in detail the facts and holdings in Jones, 17 Cal. 4th 279,

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Jennings, 53 Cal.3d 334, and Robbins, 45 Cal.3d 867. The court noted that the corpus delicti
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rule required only “independent evidence establishing a slight or prima facie showing of some

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injury, loss or harm, and that a criminal agency was involved.” It then found that there was

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both direct and circumstantial evidence of sexual activity engaged in
by defendant against D.C., and since she was eight years old at the
time, [and] there can be no dispute the activity was criminal in nature.
We hold this evidence is more than sufficient to provide a prima facie
showing of injury, loss, or harm by a criminal agency, such that
defendant's confession may be considered for its full value to fill in
the precise nature of the crimes committed against D.C.

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The court concluded that “there was sufficient evidence, independent of defendant's confession to

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police, to establish the corpus delicti of sexual penetration.” Sanchez, 246 Cal. App. 4th at 173-

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78.

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C. Analysis of Claim 1 – Insufficient Evidence of Corpus Delicti

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Petitioner argues the “corpus delicti rule” requires corroboration for a confession and,

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here, the prosecution presented no evidence independent of petitioner’s confession that he

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digitally penetrated D.C. during a piggyback ride. Therefore, petitioner continues, there was

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insufficient evidence to convict him of Count 1. Petitioner points to D.C.’s testimony that he

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never gave her a piggyback ride (1 RT 384, 388), and never put anything inside her (1 RT 388,

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392).

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Respondent argues that petitioner fails to show the rule he seeks was clearly established

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by the Supreme Court within the meaning of § 2254(d). The Court of Appeal so held. See

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Sanchez, 246 Cal. App. 4th at 173 (“Though mandated by no statute, and never deemed a

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constitutional guaranty, the rule requiring some independent proof of the corpus delicti has roots

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in the common law.”) This court agrees.

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Petitioner’s only federal law basis for his claim is the following Supreme Court statement

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- “[i]t is a settled principle of the administration of criminal justice in the federal courts that a

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conviction must rest upon firmer ground than the uncorroborated admission or confession of the

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accused.” Wong Sun v. United States, 371 U.S. 471, 488 (1963) (citing Smith v. United States,

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348 U.S. 147, 153 (1954)). To the extent petitioner argues that this “corpus delicti rule” was

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violated by a lack of corroboration for his confession to digital penetration of D.C., he fails to

28

show the rule is clearly established federal constitutional law for purposes of 28 U.S.C. § 2254(d).
11

1

While the Supreme Court has held that such corroboration is necessary in federal criminal

2

cases, Opper v. United States, 348 U.S. 84, 89-90 (1954), the Supreme Court has not held that

3

states are constitutionally required to enforce an independent corroboration rule. Thus, in Opper,

4

Smith, and Wong Sun, the Supreme Court established a federal common law rule that requires

5

corroboration of confessions by criminal defendants. The Supreme Court has not, however, held

6

that rule to be an element of constitutional due process. See Jackson v. Virginia, 443 U.S. 307,

7

330 n.1 (1979) (Stevens, J., concurring) (noting the “federal nonconstitutional rule, which surely

8

would not apply in habeas review of state convictions, ‘that a conviction must rest upon firmer

9

ground than the uncorroborated admission or confession of the accused’” (internal citation

10

omitted)); Tash v. Roden, 626 F.3d 15, 18 (1st Cir. 2010) (“Opper and Smith made no reference

11

to constitutional compulsion; corroboration was merely deemed a better rule sanctioned by

12

common law.”); Johnson v. Gibson, No. 99-7089, 2000 WL 1158335, at *9 (10th Cir. Aug. 16,

13

2000) (“Although Oklahoma law relies on authority from federal criminal cases, petitioner fails to

14

cite any clearly established Supreme Court authority holding that the need for independent

15

corroboration of a defendant’s confession is constitutionally required.”); Williams v. Chapleau,

16

No. 97-6015, 2000 WL 32015, at *4 (6th Cir. Jan. 4, 2000) (“Although federal courts typically

17

require corroboration of a criminal defendant’s out-of-court admissions, ... we are aware of no

18

authority for the proposition that the Constitution requires state courts to apply a similar rule.”);

19

Lucas v. Johnson, 132 F.3d 1069, 1078 (5th Cir. 1998) (petitioner’s argument that the state failed

20

to corroborate his confession did not raise an issue of constitutional dimension); Aschmeller v.

21

South Dakota, 534 F.2d 830, 832 n.1 (8th Cir. 1976) (noting that “[t]he corroboration rule has

22

never been termed a constitutional requirement”); Amezcua v. Lizarraga, No. 18-cv-1317 GPC

23

(MSB), 2019 WL 2289323, at *13 (S.D. Cal. May 29, 2019) (“Although the corpus delicti rule is

24

applied in federal criminal cases, it has not been held by the Supreme Court a requirement under

25

the U.S. Constitution.” (footnote omitted)); cf. Al Alwi v. Obama, 653 F.3d 11, 19 (D.C. Cir.

26

2011) (“The corroboration rule is a ‘common law’ rule, with neither constitutional nor statutory

27

bases . . . .”).

28

////
12

1

At least one federal court referred to the corroboration requirement as a rule of

2

constitutional dimension. See Evans v. Luebbers, 371 F.3d 438, 443 n. 3 (8th Cir. 2004)

3

(referring to Wong Sun and Smith as announcing a “clear constitutional rule . . . that a

4

defendant’s conviction not rest solely upon his or her confession or extra-judicial statements”).

5

However, the weight of authority is to the contrary. Further, to meet the § 2254(d) standard,

6

petitioner must cite to clearly established Supreme Court authority that the Constitution requires

7

independent corroboration for a defendant’s confession. He fails to do so.

8

To the extent petitioner argues there was insufficient evidence to support his conviction on

9

Count 1, that argument fails as well. The jury heard evidence that petitioner confessed to

10

digitally penetrating D.C. as well as evidence of other sexual abuse of both D.C. and M.C.

11

Petitioner fails to show that no rational trier of fact could have agreed with the jury’s finding of

12

guilt on Count 1. Cavazos, 565 U.S. at 2. Petitioner’s first habeas claim should fail.

13

II. Claim 2 – Exclusion of Impeachment Evidence

14

Petitioner next argues that his due process rights were violated when the trial court

15

excluded evidence to impeach S.S., the older brother of the victims and the prosecution’s primary

16

witness. (ECF No. 1 at 66-74.)

17

A. Applicable Legal Standards

18

“[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to present a

19

complete defense.’” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v.

20

Trombetta, 467 U.S. 479, 485 (1984)). It is also true, however, that “state and federal rulemakers

21

have broad latitude under the Constitution to establish rules excluding evidence from criminal

22

trials.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting United States v. Scheffer,

23

523 U.S. 303, 308 (1998)). “Such rules do not abridge an accused’s right to present a defense so

24

long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’”

25

Scheffer, 523 U.S. 303 at 308 (quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)). A rule is

26

“arbitrary” where it “exclude[s] important defense evidence but ... [does] not serve any legitimate

27

interests.” Holmes, 547 U.S. at 325. “[A] federal habeas court may overturn a state court's

28

application of federal law only if it is so erroneous that ‘there is no possibility fairminded jurists
13

1

could disagree that the state court’s decision conflicts with [the Supreme] Court's precedents.’”

2

Nevada v. Jackson, 569 U.S. 505, 508-09 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102

3

(2011)). “Only rarely [has the Supreme Court] held that the right to present a complete defense

4

was violated by the exclusion of evidence under a state rule of evidence.” Id. at 509.

5

The United States Supreme Court has not “squarely addressed” whether a state court's

6

exercise of discretion to exclude testimony violates a criminal defendant’s right to present

7

relevant evidence. Moses v. Payne, 555 F.3d 742, 758-59 (9th Cir. 2009). Nor has the Court

8

clearly established a “controlling legal standard” for evaluating discretionary decisions to exclude

9

such evidence. Id. at 758; see also Brown v. Horell, 644 F.3d 969, 983 (9th Cir. 2011) (“Between

10

the issuance of Moses and the present, the Supreme Court has not decided any case either

11

‘squarely address[ing]’ the discretionary exclusion of evidence and the right to present a complete

12

defense or ‘establish [ing] a controlling legal standard’ for evaluating such exclusions.”). Rather,

13

the Supreme Court has focused only on whether an evidentiary rule, by its own terms, violated a

14

defendant’s right to present evidence, and found that AEDPA does not permit a federal habeas

15

court to conclude that a state court’s discretionary exclusion of evidence pursuant to a valid

16

evidentiary rule violated clearly established Supreme Court precedent. Moses, 555 F.3d at 756–

17

60; Horell, 644 F.3d at 983.

18

Subsequently, the Supreme Court held that its precedent did not clearly establish that the

19

Constitution “requires a case-by-case balancing of interests” before a state rule precluding the

20

admission of extrinsic evidence to impeach a witness could be enforced. The Court held that it

21

“has never held that the Confrontation Clause entitles a criminal defendant to introduce extrinsic

22

evidence for impeachment purposes.” Jackson, 569 U.S. at 509-11 (exclusion of evidence under

23

state law for the purpose of focusing the fact-finder and conserving judicial resources was

24

appropriate and did not impinge on a defendant's right to present a complete defense.).

25

The Ninth Circuit has noted that “under AEDPA, ‘even clearly erroneous’ evidentiary

26

errors ‘that render a trial fundamentally unfair may not permit the grant of federal habeas corpus

27

relief if not forbidden by ‘clearly established federal law,’ as laid out by the Supreme Court.’”

28

Hale v. Cate, 530 F. App’x 636, 637 (9th Cir. 2013) (quoting Holley v. Yarborough, 568 F.3d
14

1

1091, 1101 (9th Cir. 2009). Moses only addressed the exclusion of expert testimony under a

2

Washington state statute. However, both the Ninth Circuit and district courts in this circuit have

3

extended the holding in Moses to preclude habeas claims arguing that exclusion of other, non-

4

expert evidence by state courts was contrary to, or an unreasonable application of, controlling

5

Supreme Court precedent, or warranted habeas relief under AEDPA. See, e.g., Smith v. Small,

6

697 F. App’x 538 (9th Cir. 2017) (California court’s decision to exclude defense witness

7

testimony was not contrary to or an unreasonable application of clearly established Supreme

8

Court precedent); Borges v. Davey, 656 F. App’x 303, 304 (9th Cir. 2016) (California court’s

9

exclusion of proposed cross-examination pursuant to Cal. Evid. Code § 352 because questioning

10

would be cumulative and time-consuming did not warrant habeas relief under AEDPA); Dugger

11

v. Brown, 469 F. App’x 534 (9th Cir. 2012) (Supreme Court has established no controlling legal

12

standards to evaluate a state court’s decision to preclude defense impeachment testimony under

13

Cal. Evid. Code § 352); see also Gentry v. Grounds, No. 2:13-cv-0142 WBS KJN P, 2015 WL

14

3733395, at *10 (E.D. Cal. June 11, 2015) (state court’s decision to exclude defense impeachment

15

evidence under Cal. Evid. Code § 352 did not violate any clearly established federal law under §

16

2254(d)), rep. and reco. adopted, No. 2:13-cv-0142 WBS KJN P (E.D. Cal. July 10, 2015); Chein

17

v. Powers, No. CV 13-0126 ABC (AN), 2013 WL 6535301, at *10 (C.D. Cal. Dec.13, 2013)

18

(state trial court’s exclusion of proposed defense evidence regarding conduct of victim because it

19

was irrelevant did not warrant habeas relief under AEDPA); White v. Knipp, No. 2:11-cv-3016

20

TLN DAD P, 2013 WL 5375611, at *19 (E.D. Cal. Sept. 24, 2013) (state court’s exclusion of

21

third party culpability evidence did not warrant relief under AEDPA), rep. and reco. adopted, No.

22

2:11-cv-3016 TLN DAD P (E.D. Cal. Nov. 18, 2013).

23

B. State Court Decision

24

Exclusion of Impeachment Evidence

25

Defendant also claims the trial court abused its discretion and
his right to due process by excluding evidence [of] certain school
records pertaining to S.S. [which] indicated he exhibited
oppositional, defiant, and atypical behaviors purportedly relevant to
his credibility as a witness. We disagree.

26
27
28

15

1

A.

2

Additional Background

3

Defendant subpoenaed S.S.’s school records that the trial
court reviewed in camera. Certain of these records were made
available to defense counsel. The prosecution then asked the trial
court to limit cross-examination of S.S. concerning a
psychoeducational study (PS) prepared in May 2011. The
prosecution asked the trial court to preclude , as “irrelevant and
unduly prejudicial,” any questioning concerning the following
contents of the study: “[R]eferrals for ‘[in]subordinate and defiant
behavior; [¶] Anger outburst when frustrated over academics or
social injustices; [¶] Demonstrating victimizing behaviors; [¶]
Seizures, setting fires, and thoughts of suicide; [¶] Prior diagnoses
and use of medication to control behavior; [¶] Conclusions based on
limited hearsay that suggest potential for maladjustment including:
cruelty to animals, threats to hurt others . . , bullying classmates, and
other aggression and conduct problems.” The prosecution did not,
however, object to cross-examination concerning two reported
incidents of theft at school and requested a hearing under Evidence
Code section 402 to determine whether a reported statement made by
S.S. to the school psychologist, i.e., that he sometimes heard voices
in his head that no one else could hear, would be relevant to his
perception of defendant’s behavior on August 2, 2011.

4
5
6
7
8
9
10
11
12
13
14
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16
17
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19
20
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23
24
25
26
27
28

Prior to defense counsel’s cross-examination of C.C., the first
witness called by the prosecution, defense counsel raised the issue of
addressing the foregoing subjects with this witness. The trial court
ruled that S.S.’s “oppositional, defiant behavior at school that is
reflected in the [PS] doesn’t seem to me to have any bearing on his
truth or veracity.” The court also ruled such evidence inadmissible
under Evidence Code section 352 as an “unduly prejudicial” attack
on S.S.’s character. The trial court did, however, indicate that defense
counsel might be able to cross-examine S.S. concerning “his selfreport of hearing things that might not be there” and the “specific
incidents of . . .theft.”
During S.S.’s testimony, defense counsel again raised the
issue of questioning him concerning his oppositional and defiant
behavior at school. Defense counsel argued: “I suspect [defendant]
is going to get on the stand, deny that any of this happened,
absolutely deny it. And so, ultimately, I have got to come up with a
theory for the jury as to why these children would make up
allegations against their babysitter who they had no problems with in
the past. [¶] And certainly seems to me with [S.S.], who is the oldest
of the children and the only one that’s allowed to leave the property
on a bicycle – the rest of the children weren’t – it seems to me I
should be able to ask that, if the response is merited, about the fact
he was defiant to authority and didn’t like to listen to other people,
especially people in position[s] of authority.” The trial court again
ruled the evidence inadmissible to the question of “whether this
witness is telling the truth or not” and also barred by Evidence Code
section 352.
16

1

3

S.S. was then questioned about the two reported thefts. He
admitted one of them. He was also questioned about his reported
statement that he was hearing voices no one else could hear. He
denied making this statement. The parties stipulated the school
psychologist would testify that S.S. made the statement.

4

B.

5

Analysis

6

Defendant asserts the jury should have heard that S.S. “‘had
numerous referrals and suspensions for [in]subordinate and defiant
behavior’” at school, a teacher noted he “will have anger outbursts
when he becomes frustrated over academics or social injustice[,]
struggles on the yard and in small group situations[,] and he often
demonstrates victimizing behaviors,’” his “‘ primary disability is
Emotional Disturbance’” he was “identified as showing
‘Oppositional Defiant Disorder and Bipolar Disorder,’” his mother
was “‘ recently having more difficulty helping [him] control his
behavior,’” he had been ‘“ receiving therapy for one month. . . but
[was] not presently taking medication,’” “parent and teacher
responses suggested ‘a high level of maladjustment for . . .
aggression’ [and] that he ‘often threatens to hurt other and bullies
others,’” and parent and teacher responses also suggested “‘ a high
level of maladjustment for. . . atypicality (seems out of touch with
reality, has strange ideas, says things that make no sense, acts
strangely, seems unaware of others).’” He argues the foregoing
evidence “was highly relevant to the jury’s assessment of whether
his report of what he saw in the bedroom was one of his ‘strange
actions’—a product perhaps of his anger, defiance, or lack of contact
with reality.” We are not persuaded.

2

7
8
9
10
11
12
13
14
15
16
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19
20
21
22
23
24
25
26
27
28

We first note the foregoing evidence falls into two categories:
(1) evidence of S.S.’s past misconduct, i.e., insubordinate,
oppositional, defiant, aggressive, threatening, and victimizing
behavior; and (2) evidence S.S. appeared to be out of touch with
reality. With respect to the second category, aside from the report of
S.S. hearing voices no one else could hear, which was admitted into
evidence, defense counsel did not ask the trial court to admit this
evidence. Accordingly, any claim of error based on this category is
forfeited.[fn 6] (Evid. Code, § 354, subd. (a); see, e.g., People v
Panah (2005) 35 Cal.4th 395, 481.) We therefore address only the
first category.
1. Relevance of the Proffered Evidence
“No evidence is admissible except relevant evidence” and,
“except as otherwise provided by statute, all relevant evidence is
admissible.” (Evid. Code, §§ 350, 351.) Evidence is relevant if it has
“any tendency in reason to prove or disprove any disputed fact that
is of consequence to the determination of the action.” (Evid. Code, §
210.)
“Not all past misconduct has a ‘tendency in reason to prove
or disprove a witness’s honesty and veracity.” (People v. Wheeler
17

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

(1992) 4 Cal. 4th 284, 295.) it is misconduct “involving moral
turpitude” that “may suggest a willingness to lie [citations], and this
inference is not limited to conduct which resulted in a felony
conviction.” (Id. at pp. 295-296.) Thus, “the admissibility of any past
misconduct for impeachment is limited at the outset by the relevance
requirement of moral turpitude.” (Id. at p. 296; see also People v.
Clark (2011) 52 Cal.4th 856, 931.)
Here, based on the offer of proof, we cannot conclude S.S.’s
prior conduct rises to the level of moral turpitude, i.e., a “ ‘general
readiness to do evil.’” (People v. Castro (1985) 38 Cal. 3d 301, 315.)
While the assessment indicates S.S. “threatens to hurt others, teases
others, argues [w]hen denied own way, bullies others, seeks revenge,
hits and calls other adolescents names,” we do not know precisely
what S.S. did to warrant these comments. However, arguing, teasing,
and name-calling certainly do not rise to the level of moral turpitude.
Nor does committing a battery. (See People v. Mansfield (1988) 200
Cal.App.3d 82, 89.) Moreover, while the crimes of making a criminal
threat (§ 422) and arson (§ 451) have been held to involve moral
turpitude (see People v. Thornton (1992) 3 Cal.App.4th 419, 424;
People v. Miles (1985) 172 Cal.App.3d 474, 482), S. S. was not
convicted of these crimes. Instead, the school assessment simply
notes, based on parent and teacher responses, that S.S. “threatens to
hurt others.” This does not reveal “[t]he knowing infliction of mental
terror” held to be “deserving of moral condemnation” in People v
Thornton, supra, 3 Cal.App.4th at page 424. Similarly, the parent
response that S.S. “sets fires” does not reveal whether he set fire to
“any structure, forest land, or property,” as those terms are used in
the arson statute, or whether he did so “willfully and maliciously.”
(§ 451.) At most, the school assessment reveals a troubled young man
who was acting out in school and at home, not a person possessing a
general readiness to do evil, such that the jury could reasonably infer
a willingness to lie. We agree with the trial court that his evidence
was not relevant to S.S.’s credibility as a witness.

18
2. Evidence Code Section 352
19
20
21
22
23
24
25
26
27
28

Even assuming the evidence was relevant to S.S.’s
credibility, we would nevertheless conclude the evidence was
properly excluded under Evidence Code section 352. This section
provides the trial court with discretion to exclude relevant evidence
“if its probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time or
(b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.”
We review the trial court’s decision to exclude evidence
under Evidence Code section 352 for abuse of discretion. (People v.
Minifie (1996) 13 Cal.4th 1055, 1070.) However, while this
provision “permits the trial judge to strike a careful balance between
the probative value of the evidence and the danger of prejudice,
confusion and undue time consumption,” it also “requires that the
danger of these evils substantially outweigh the probative value of
the evidence. This balance is particularly delicate and critical where
what is at stake is a criminal defendant’s liberty.” (People v.
18

1

Lavergne (1971) 4 Cal.3d 735, 744; see People v. Holford (2012)
203 Cal.App.4th 155, 168 [section 352 objection should be overruled
“unless the probative value is ‘substantially’ outweighed by the
probability of a ‘substantial danger” ‘ of one of the statutory
counterweights].) Thus, Evidence Code section 352 “must bow to the
due process right of a defendant to a fair trial and his right to present
all relevant evidence of significant probative value to his defense.
[Citations.] Of course, the proffered evidence must have more than
slight relevancy to the issues presented. [Citation.]” (People v.
Burrell-Hart (1987) 192 Cal.App.3d 593, 599.)

2
3
4
5
6

We have already concluded the proffered evidence was not
relevant to the issues presented. However, even if relevant, the
probative value was slight. In People v. Lightsey (2012) 54 Cal.4th
668, our Supreme Court upheld the trial court’s decision, under
Evidence Code section 352, to exclude evidence of a prosecution
witness’s misdemeanor conviction for assault with a deadly weapon,
explaining: “[E]vidence of [the witness’s] misdemeanor conductstriking her ex-husband with a rock during a dispute-does not
strongly demonstrate moral turpitude, i.e., a “‘general readiness to do
evil”‘ [citation], and thus would not have provided the jury much
assistance in assessing[her] credibility. ‘This was a routine matter of
weighing the evidence’s probative value against the probability its
admission would “necessitate undue consumption of time” [citation],
and the trial court’s ruling was both reasoned and reasonable.’
[Citation.]” (Id. at p. 714.) The same reasoning applies here.

7
8
9
10
11
12
13
14

The trial court did not abuse its discretion or violate defendant’s right
to due process by excluding the proffered evidence.

15
16

[fn 6] In any event, even if properly preserved for review,
while evidence S.S. seemed out of touch with reality about
three months before defendant tried to have sex with his sister
would be relevant to his ability to perceive the even (see Evid.
Code, §§ 210, 780), and further assuming the evidence was
not subject to exclusion as inadmissible hearsay or under
Evidence Code section 352, we would nevertheless conclude
any error was harmless since the jury heard evidence S.S.
reported hearing voices no one else could hear. This
additional, non-specific, evidence that parent and teacher
responses revealed S.S. seemed out of touch with reality, had
strange ideas, said strange things, acted strangely, and
seemed unaware of others would have added little to the
jury’s assessment of his ability to perceive the event that
occurred on his bed. Moreover, the evidence against
defendant was overwhelming.
Indeed, defendant’s
admission to trying to have sex with D.C. on the bed
corroborated S.S.’s testimony and confirmed he accurately
perceived the event.

17
18
19
20
21
22
23
24
25
26

(LD 4 at 16-22 (some footnotes omitted).3 )

27
The Court of Appeal published only the analysis of claim 1. It did not certify for publication its
analyses of petitioner’s other claims. See Sanchez, 246 Cal. App. 4th at 179 n. *
19
3

28

1

C. Analysis of Claim 2 – Exclusion of Impeachment Evidence

2

As described above, there is no clearly established federal law that a state court’s

3

application of California Evidence Code § 352 may violate due process. See Smith, 697 F. App’x

4

538; Borges, 656 F. App’x 303; Dugger, 469 F. App’x 534. Petitioner attempts to argue that

5

because the Court of Appeal misapplied state evidentiary rules, “application of state law in this

6

case is no bar to federal review of petitioner’s confrontation claim.” Petitioner’s argument is

7

nonsensical in the habeas context. Whether state law was violated is not a relevant question

8

before this court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (violation of state law is not

9

cognizable on federal habeas). Rather, the first question under the § 2254(d) analysis is whether

10

petitioner asserts a claim supported by clearly established federal law as decided by the Supreme

11

Court. The authorities binding this court are clear that he does not.

12

Even if this court could consider a claim that the limitation on impeachment evidence

13

rendered petitioner’s trial fundamentally unfair, that claim would fail. The evidence against

14

petitioner was overwhelming and the trial court did permit S.S. to be impeached with questions

15

regarding two reported thefts and his statement to a school psychologist that S.S. told her he

16

heard voices no one else could hear. In addition, the parties stipulated that if the school

17

psychologist testified, she would confirm that statement.

18

In particular, the evidence that S.S. may have heard voices provided the defense with a

19

good basis to impeach his ability to perceive and report petitioner’s abuse of D.C. and M.C.

20

Petitioner fails to show that any additional impeachment of S.S. with evidence of his oppositional

21

behavior and challenges to authority would have affected the jury’s determination of petitioner’s

22

guilt. Petitioner’s claim 2 should fail.

23

III. Claim 3 – Prosecutorial Misconduct/Ineffective Assistance of Counsel

24

Petitioner raises the following claims of prosecutorial misconduct. Petitioner alleges the

25

prosecutor: (1) misled the jury regarding D.C.’s injuries; (2) disparaged defense counsel; (3)

26

indicated that she knew evidence not before the jury; (4) mispresented the parties’ stipulation and

27

urged the jury to speculate about evidence not in the record; and (5) asked the jury to sanction

28

petitioner for exercising his right to trial. What petitioner fails to point out in his petition, and
20

1

respondent fails to argue, is that petitioner defaulted these prosecutorial misconduct claims

2

because none of the instances of alleged misconduct were objected to at trial. The Court of

3

Appeal noted the default and analyzed the claims under petitioner’s fall-back argument that the

4

failure of counsel to object violated petitioner’s Sixth Amendment rights to the effective

5

assistance of counsel. (See LD 4 at 28.)

6

This court must decline to consider a claim that has been defaulted for failure to

7

contemporaneously object. See Fairbank v. Ayers, 650 F.3d 1243, 1256-57 (9th Cir. 2011)

8

(finding that California's contemporaneous objection rule was independent and adequate to bar

9

federal review when a defense attorney failed to object to alleged prosecutorial misconduct).

10

Accordingly, as the state court did, this court considers petitioner’s claims that his trial counsel

11

was ineffective for failing to object to the five instances of prosecutorial misconduct set out

12

above.4

13

A. Applicable Legal Principles

14

To succeed on a claim of ineffective assistance of counsel, a petitioner must show that (1)

15

his counsel's performance was deficient and that (2) the “deficient performance prejudiced the

16

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel is constitutionally

17

deficient if his or her representation “fell below an objective standard of reasonableness” such

18

that it was outside “the range of competence demanded of attorneys in criminal cases.” Id. at

19

687-88 (internal quotation marks omitted). Prejudice is found where “there is a reasonable

20

probability that, but for counsel's unprofessional errors, the result of the proceeding would have

21

been different.” Id. at 694. A reasonable probability is “a probability sufficient to undermine

22

confidence in the outcome.” Id. “The likelihood of a different result must be substantial, not just

23

conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011).

24
Petitioner appears to raise the ineffective assistance of counsel claims only in his reply. (See
ECF No. 24 at 31-31.) Generally, this court may not consider claims raised for the first time in a
reply. See Lopez v. Dexter, 375 F. App’x 724 (9th Cir. 2010) (district court appropriately
rejected claim that “surfaced for the first time in [the] traverse to the state’s answer” (citing
Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994)). However, because the ineffective
assistance of counsel issue was raised, and considered, in the state court, this court will consider it
here.
21
4

25
26
27
28

1

A reviewing court “need not determine whether counsel’s performance was deficient

2

before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. .

3

. . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice

4

. . . that course should be followed.” Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002)

5

(quoting Strickland, 466 U.S. at 697), amended and superseded on other grounds, 385 F.3d 1247

6

(9th Cir. 2004); United States v. Ray, No. 2:11-cr-0216-MCE, 2016 WL 146177, at *5 (E.D. Cal.

7

Jan. 13, 2016) (citing Pizzuto, 280 F.3d at 954), aff’d, 735 F. App’x 290 (9th Cir. 2018).

8

B. State Court Decision

9

The Court of Appeal found petitioner’s trial attorney did not act unreasonably when he did

10

not object to the alleged misconduct because the prosecutor’s actions did not amount to

11

misconduct and/or they were not prejudicial to petitioner.

12

Prosecutorial Misconduct

13

Defendant further asserts the prosecutor engaged in
prejudicial misconduct in violation of his right to due process by (1)
misleading the jury about the evidence, (2) misleading the jury about
a stipulation and suggesting facts not in evidence, (3) assuring the
jury the case would not have been brought if the evidence was
lacking, (4) implying defendant was not human, except for the
moment when he confessed to police, and (5) appealing to the
passions of the jury and disparaging defense counsel in front of the
jury. This assertion of error is forfeited because defendant did not
object to the prosecutor’s alleged misconduct or request curative
admonitions. (People v. McDowell (2012) 54 Cal.4th 395, 436.)
Anticipating forfeiture, defendant argues reversal is nevertheless
required because defense counsel’s failure to object and request
admonitions amounted to ineffective assistance of counsel. We
disagree. Because the asserted instances of alleged misconduct were
either not misconduct or not prejudicial, we conclude counsel’s
failure to object and request admonitions did not fall below an
objective standard of reasonableness.

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24
25
26
27
28

A criminal defendant has the right to the assistance of counsel
under both the Sixth Amendment to the United States Constitution
and article I, section 15, of the California Constitution. (People v.
Ledesma (1987) 43 Cal.3d 171, 215.) This right “entitles the
defendant not to some bare assistance but rather to effective
assistance. [Citations.] Specifically, it entitles him [or her] to ‘the
reasonably competent assistance of an attorney acting as his [or her]
diligent conscientious advocate.’ [Citations.]” (Ibid., quoting United
States v. DeCoster (D.C.Cir. 1973) 487 F.2d 1197, 1202.) “‘In order
to demonstrate ineffective assistance of counsel, a defendant must
first show counsel’s performance was “deficient” because his [ or
her] “representation fell below an objective standard of
22

reasonableness ... under prevailing professional norms.” [Citations.]
Second, he [or she] must also show prejudice flowing from counsel’s
performance or lack thereof. [Citation.] Prejudice is shown when
there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”’” (In re Harris (1993) 5
Cal.4th 813, 832-833; accord, Strickland v. Washington (1984) 466
U.S. 668, 687 [80 L.Ed.2d 674, 693].) The burden of proving a claim
of ineffective assistance of counsel is squarely upon the defendant.
(People v. Camden (1976) 16 Cal.3d 808, 816.)

1
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5
6

We must first determine whether defense counsel’s failure to
object to the specific instances of alleged misconduct fell below an
objective standard of reasonableness. “Under the federal
Constitution, a prosecutor commits reversible misconduct only if the
conduct infects the trial with such ‘“unfairness as to make the
resulting conviction a denial of due process.”’ [Citation.] By
contrast, our state law requires reversal when a prosecutor uses
‘deceptive or reprehensible methods to persuade either the court or
the jury’ [citation] and “‘it is reasonably probable that a result more
favorable to the defendant would have been reached without the
misconduct’” [citation].” (People v. Davis (2009) 46 Cal.4th 539,
612.)

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9
10
11
12
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14
15

(LD 4 at 28-29.)
The Court of Appeal then went on to address each instance in which petitioner alleged his

16

attorney unreasonably failed to object to misconduct. That court’s reasoning on each contention

17

is set out in the discussion of petitioner’s claims below.

18

C. Analysis of Ineffective Assistance of Counsel

19

1. Misstating Evidence re Injury to D.C.

20

Petitioner argues the prosecutor improperly mischaracterized the evidence by describing

21

an interviewer’s question of petitioner as asking whether anything went “into her vagina that we

22

need to know about when her hymen broke?” (2 RT 993.) Petitioner contends there was no

23

evidence D.C.’s hymen was ruptured as a result of any action by petitioner and the statement was

24

prejudicial.

25

The question before this court is whether the Court of Appeal reasonably held that

26

petitioner’s trial attorney acted appropriately when he failed to object to this argument. As the

27

Court of Appeal points out, counsel’s reasonableness would have been based on a consideration

28

of whether the prosecutor’s actions would have been found by the state court to amount to
23

1

prejudicial misconduct. That inquiry is not limited to federal law. If the prosecutor’s actions

2

would have been considered prejudicial misconduct under state law, then petitioner’s trial

3

attorney acted unreasonably in failing to object to them. In recounting the standards for

4

determining prosecutorial misconduct under both federal and state law, the Court of Appeal

5

shows that the state law standards are more lenient. In other words, proving prejudicial

6

prosecutorial misconduct would have been easier under state, rather than federal, standards.

7

Accordingly, those state standards must be considered by this court as well. The prosecutor thus

8

committed objectionable misconduct under state law if she used “‘deceptive or reprehensible

9

methods to persuade either the court or the jury’ [citation] and “‘it is reasonably probable that a

10

result more favorable to the defendant would have been reached without the misconduct’”

11

[citation].”” (LD 4 at 29 (citing People v. Davis (2009) 46 Cal.4th 539, 612).
The Court of Appeal rejected petitioner’s claim by finding the prosecutor’s argument did

12
13

not, in fact, misstate the evidence. Therefore, any objection by counsel would have been futile.

14

The first instance of alleged misconduct occurred during the
prosecutor’s closing argument. Describing defendant’s interview
with police, the prosecutor stated: “This is when the officers are
saying, [D.C.] is going to get examined; did you give her any STDs.
Did anything go into her vagina that we need to know about when
her hymen broke? They explained that to him.” (Italics added.)
Defendant complains the prosecutor misled the jury about the
evidence because there was no evidence D.C. ‘s hymen broke. While
“mischaracterizing the evidence is misconduct” (People v. Hill
(1998) 17 Cal.4th 800, 823), where the prosecutor’s comments are
ambiguous, the question is “whether there is a reasonable likelihood
that the jury misconstrued or misapplied” the comments. (People v.
Clair (1992) 2 Cal.4th 629, 663.) Here, “when her hymen broke”
could be construed to indicate it did actually break, while the doctor
who performed the sexual assault examination on D.C. testified there
were no findings of sexual trauma. However, the prosecutor was
clearly referring to defendant’s police interview, in which defendant
was asked whether he penetrated D.C.’s vagina “however slight,”
because any such penetration “breaks the hymen.” Viewed in
context, we conclude the jury likely understood the challenged
language to refer to the detective’s suggestion to defendant that
D.C.’s hymen broke, and not that the hymen was in fact perforated.
So viewed, the challenged statement did not mischaracterize the
evidence and defense counsel was not ineffective for failing to
object.

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26
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(LD 4 at 29-30.)

28

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24

1

Petitioner contends the prosecutor’s statement, simply read, asserted that D.C.’s hymen

2

had been ruptured. Petitioner argues that such a statement was a mischaracterization of the

3

evidence that would have been extremely prejudicial.

4

This court agrees with the Court of Appeal that the statement, while certainly not well

5

said, did not amount to misconduct. The prosecutor was recounting the interviewer’s testimony

6

that he told petitioner D.C. was going to be examined and asked whether petitioner gave her any

7

STDs or whether anything went into her vagina that could have ruptured her hymen. While not

8

identical to the testimony, the jury would not have been misled. Moreover, even if misconduct,

9

the statement was not prejudicial. There was medical testimony that doctors found no evidence

10

of sexual trauma. And, the jury was reminded in the defense closing argument that there was “not

11

one sign of sexual abuse or trauma.” (2 RT 1023.) Finally, the jury was instructed that

12

“[n]othing that the attorneys say is evidence.” (2 RT 946.) Petitioner fails to show his trial

13

counsel acted unreasonably in failing to object to the prosecutor’s argument or that the absence of

14

an objection prejudiced him.

15
16

2. Disparaging Defense Counsel
Petitioner argues the prosecutor disparaged defense counsel numerous times when she

17

questioned the victims and accused counsel of going “on the attack” in his questioning of those

18

victims and their families.

19

The Court of Appeal held that the prosecutor’s comments did amount to misconduct. It

20

further held, however, that there was no reasonable probability counsel’s failure to object affected

21

the verdict.

22
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[D]efendant asserts the prosecutor committed misconduct by
appealing to the passions of the jury and disparaging defense counsel.
The prosecutor stated during her rebuttal argument: “Can you
imagine what that must feel like, to be an eight-year-old kid, with 12
adults -- 14 staring at her; and the most important person in her life
on August 2, 2011, looking right at her. But, yet, [defense counsel],
with his many years of experience, was able to twist her up. And how
hard is that, to twist up an eight-year-old girl to the point where she
is crumpled in her seat, unable to even talk about anything?”
Additionally, defendant complains the prosecutor asked M.C. “how
she felt there on the stand” and whether defense counsel’s questions
about her body made her “feel embarrassed,” stated in her closing
argument that the SAFE interview is different from trial, “where you
25

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have an experienced defense attorney doing leading questions and
getting answers that they want out of a kid who is oftentimes trained
to obey adults,” and stated in her closing and rebuttal arguments that
defense counsel went “on the attack” in cross-examining the children
and also “attacked” their parents and the police. It is improper for a
prosecutor “to portray defense counsel as the villain in the case”; this
is because a “defendant’s conviction should rest on the evidence, not
on derelictions of his [or her] counsel. [Citations.] Casting uncalled
for aspersions on defense counsel directs attention to largely
irrelevant matters and does not constitute comment on the evidence
or argument as to inferences to be drawn therefrom.” (People v.
Thompson (1988) 45 Cal.3d 86, 112.) In People v. Turner (1983) 145
Cal.App.3d 658, disapproved on other grounds in People v. Newman
(1999) 21 Cal.4th 413, 422-423, footnote 6, and People v. Majors
(1998) 18 Cal.4th 385, 410-411, the Court of Appeal held the
prosecutor “overreacted” to defense counsel’s cross-examination of
the victim and engaged in misconduct by portraying defense counsel
as “an additional villain who was attacking the victim.” (Turner,
supra, 145 Cal.App.3d at p. 674.) The same can be said of the
prosecutor’s argument here. However, as in Turner, we conclude the
misconduct was harmless. (Ibid.) In light of the overwhelming
evidence of defendant’s guilt, there is no reasonable probability a
result more favorable to the defendant would have been reached
without the misconduct. (See People v. Davis, supra, 46 Cal.4th at p.
612.) For the same reason, even if we were to conclude defense
counsel’s failure to object to the foregoing statements fell below an
objective standard of reasonableness, there would be no prejudice.
(LD 4 at 34-35.)
While petitioner argues the prosecutor’s statements were misconduct, and there appears to

17

be no dispute that they were, petitioner makes no real attempt to argue the statements were

18

prejudicial. This court finds they were not. Those statements were not specifically focused on

19

the evidence and this court finds no basis to conclude, based on the substantial evidence of

20

petitioner’s guilt, including his admissions, that had counsel objected to those statements, there is

21

a reasonable probability the result of the proceeding would have been different. The Court of

22

Appeal’s decision was not contrary to or an unreasonable application of clearly established

23

federal law and does not rest on an unreasonable determination of the facts.

24
25

3. Vouching
Petitioner argues that the prosecutor’s assertion that she would not be arguing to the jury if

26

she thought the evidence was insufficient to convict him amounts to improper vouching. A

27

prosecutor’s expression of a personal opinion of the guilt of the accused can “convey the

28

impression that evidence not presented to the jury, but known to the prosecutor, supports the
26

1

charges against the defendant and can thus jeopardize the defendant's right to be tried solely on

2

the basis of the evidence presented to the jury.” United States v. Young, 470 U.S. 1, 18-19

3

(1985) (citing Berger v. United States, 295 U.S., 78, 88-89 (1935)).

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The California Court of Appeal rejected petitioner’s contention that the prosecutor’s
comment amounted to vouching:
[D]efendant complains the prosecutor stated during her
rebuttal argument: “No evidence at all? I promise you, I would not
be arguing in front of you that there was.” Defendant argues: “The
prosecutor’s statement that she would not be arguing to the jury if
she did not have sufficient evidence invites the jury to rely on the
prosecutor’s personal probity rather than on the evidence in the case
and may be understood by the jury as an assurance that the prosecutor
is relying on additional evidence.” A prosecutor may not “express a
personal opinion or belief in a defendant’s guilt, where there is
substantial danger that jurors will interpret this as being based on
information at the prosecutor’s command, other than the evidence
adduced at trial. The danger is acute when the prosecutor offer his
[or her] opinion and does not explicitly state that it is based solely on
the inferences from the evidence at trial.” (People v. Bain (1971) 5
Cal.3d 839, 848.) However, viewing in context, we cannot agree
with defendant’s characterization of the challenged statement as an
assurance to the jury that there is sufficient evidence, perhaps outside
that adduced at trial, to support defendant’s guilty. The challenged
statement was made in response to defense counsel’s argument there
was not evidence of sexual penetration, or that a piggyback ride took
place. The prosecutor responded: “[W]hat are you expecting? A
picture of the piggy-back ride? [¶] I – at this point, you have the
defendant’s statement, and you have [the doctor’s] exam; and, ladies
and gentlemen, you need evidence that a crime occurred, however
slight that evidence is. You got -- you’ll get the instructions in the
deliberation room. You have a lot of evidence that a crime occurred:
Touching breasts, touching butt, touching vagina, being in a room
with [D.C.], [S.S.] seeing him on top of her .... No evidence at all? I
promise you, I would not be arguing in front of you that there was.”
Viewed in context, we conclude the jury likely understood the
challenged statement to refer to the evidence the prosecutor recited
immediately before the statement. So viewed, there was no
misconduct and defense counsel was not ineffective for failing to
object.
(LD 4 at 32-33.)
Read in context, the prosecutor’s argument did not imply the prosecutor had knowledge of

26

evidence not presented to the jury. Rather, the statement was made as part of a summary of that

27

evidence and was made in direct response to argument by the defense. It was not misconduct and

28

petitioner’s trial counsel did not act unreasonably in failing to object to it.
27

1
2

4. Misstating Evidence re Parties’ Stipulation
Petitioner next contends that, despite stipulating to the testimony of a school psychologist

3

regarding a statement made to her by S.S., the prosecutor argued in closing that some of the

4

psychologist’s testimony, had the jury heard it, would have been false and implied that the

5

prosecutor could have adduced different testimony upon cross-examination.

6

The Court of Appeal found the prosecutor’s argument was not misconduct and, to the

7

extent the prosecutor made one comment that could be construed as referring to a fact not in

8

evidence, that comment was not so prejudicial that there was a reasonable probability the result of

9

trial would have been different if counsel had objected.

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[D]efendant claims the prosecutor misled the jury about the
stipulation entered into between the parties, i.e., the school
psychologist would testify S.S. told her on one occasion in May 2011
that “sometimes he heard voices in his head that no one else could
hear.” The prosecutor stated during her closing argument: “[S.S.]
told –allegedly told a school psychologist -- a school counselor that
he heard things that no one else could hear. And, first of all, there is
a stipulation that, if she were to take the stand, she would have said
that. But you can’t just assume that it is true just because she would
say that. She was not subject to cross-examination. She did not give
you the context under which that statement was said. She didn’t tell
you any of the good things that possibly she knows about him either.
The fact that that fact was given -- that she would testify to that single
fact in isolation doesn’t tell you have to believe it. It is just a fact that
you can consider [of a statement] that he made in 2011.”
Defendant argues the prosecutor “implied to the jury that
defense counsel was preventing cross-examination and the elicitation
of testimony helpful to the prosecution” and “suggested there were
facts not in evidence, favorable to the prosecution, to which the
absent witness would have testified.” We disagree. A prosecutor
“should not, of course, argue facts not in evidence” (People v.
Osband (1996) 13 Cal.4th 622; 698), and “[w]here the circumstances
do not indicate suppression of material evidence or any other
impropriety in failing to call a witness, it may be misconduct for the
prosecutor ... to assert that a particular person, if called, would give
certain testimony.” (5 Witkin, Cal. Criminal Law (4th ed. 2012)
Criminal Trial, § 762, p. 1186.) Here, however, the prosecutor
informed the jury that, while the stipulation created a conflict in the
evidence as to whether S.S. told the school psychologist he heard
voices no one else could hear, the stipulation did not resolve that
conflict. If called as a witness, the psychologist would have testified
S.S. made the statement; S.S. testified he did not. The parties did not
stipulate that the psychologist’s testimony would have been true. It
was for the jury to decide who was (or would have been) telling the
truth. Pointing this out to the jury was not misconduct. Nor was the
prosecutor’s subsequent comment that the stipulation provided
28

1

limited information from which the jury could assess the
psychologist’s credibility. The only arguable suggestion of facts not
in evidence was the comment that the psychologist might “possibly”
know “good things” about S.S. But anyone might possibly know
good things about anyone. This statement does not assert the
psychologist actually had good things to say about S.S., or defendant
somehow prevented her from sharing these good things with the jury.
Defense counsel was not ineffective for failing to object to these
comments.

2
3
4
5
6
7

(LD 4 at 30-31.)
This court agrees that the prosecutor statements did not amount to misconduct. The

8

parties stipulated to the substance of the psychologist’s testimony but did not stipulate that the

9

testimony was necessarily true. Further, to the extent the prosecutor’s argument called for

10

speculation that the psychologist might “possibly” know some good things about S.S., that

11

suggestion was brief and did not imply the prosecutor was aware of evidence not before the jury.

12

Petitioner fails to show counsel’s failure to object to this argument was unreasonable under

13

Strickland.

14
15

5. Denigration of Petitioner’s Decision to go to Trial
In the final instance of alleged prosecutorial misconduct, petitioner argues that the

16

prosecutor’s statement that petitioner was “human” when he accepted responsibility for his

17

actions implied that he was inhuman in disputing his crimes and going to trial.

18
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22
23
24
25
26
27
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The Court of Appeal found petitioner’s claim simply a mischaracterization of the
prosecutor’s statements.
[D]efendant takes issue with the following statement made
during the prosecutor’s closing argument, again referring to
defendant’s police interview: “And for a moment, the defendant
becomes a human, and he starts to talk and gives this information
up.” Defendant argues: “By suggesting that [defendant] was human
only for a moment, when he responded with admissions of
wrongdoing to the officers’ expressions of concern for the family,
the prosecutor implied that [ defendant] has behaved inhumanly since
then. The prosecutor implied that, after that fleeting moment of
humanity, [defendant] reprehensibly reverted to inhumanity by
denying the truth of his admissions and demanding a trial, and thus
implicitly
invited the jury to chastise [defendant’s]
presumptuousness in demanding a trial. The argument thus infringed
on [defendant’s] constitutional trial right.” The foregoing quote, with
a single citation to the Sixth Amendment to the federal Constitution,
is the entirety of defendant’s argument. It is insufficient to raise the
issue. (See In re S.C. (2006) 138 Cal.App.4th 396,408 [appellate
29

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4
5
6
7
8
9
10
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brief must contain “meaningful legal analysis supported by citations
to authority and citations to facts in the record that support the claim
of error”].)
In any event, we disagree with defendant’s characterization
of the prosecutor’s argument. No reasonable juror would have taken
it as an invitation to hold defendant’s decision to demand a trial
against him. Moreover, while stating defendant was human only
when he confessed does imply he was otherwise inhuman, we do not
view this as misconduct. “Argument may be vigorous and may
include opprobrious epithets reasonably warranted by the evidence.
[Citations.]” (People v. Edelbacher (1989) 47 Cal.3d 983, 1030; see
also People v. Terry (1962) 57 Cal.2d 538, 561-562 [reference to the
defendant as an “animal”]; People v. Jones (1970) 7 Cal.App.3d
358,362 [reference to the defendant’s “animalistic tendencies”].)
Merriam-Webster defines “inhuman” to mean “lacking pity,
kindness, or mercy.” (Merriam-Webster’s Collegiate Dict. (11th ed.
2003) p. 643, col. 2.) Defendant’s crimes against D.C. and M.C.
certainly qualify. We therefore conclude the prosecutor’s comments
were warranted by the evidence and amounted to vigorous but fair
argument. Defense counsel was not ineffective for failing to object.
(LD 4 at 33-34.)
Petitioner’s claim has no basis in the facts. The prosecutor’s argument did not compel or

14

even suggest that petitioner’s behavior in going to trial was “inhuman.” Petitioner presents no

15

basis to conclude his attorney’s failure to object to this statement was unreasonable.

16

Finally, petitioner’s contention that the cumulative effect of the prosecutorial misconduct

17

prejudiced him is baseless. First, this court considers here petitioner’s claim of ineffective

18

assistance of counsel, not prosecutorial misconduct. Second, this court finds only the

19

prosecutor’s disparagement of defense counsel to have amounted to misconduct of any weight.

20

And, as described above, given the significant evidence of petitioner’s guilt presented at trial,

21

even had petitioner’s trial attorney objected to those statements, it cannot be said that there is a

22

reasonable probability the result of the proceeding would have been different.

23

IV. Admission of Evidence of Child Sexual Abuse Accommodation Syndrome

24

At trial, an expert, Dr. Anthony Urquiza, testified about Child Sexual Abuse

25

Accommodation Syndrome (“CSAAS”). The jury was told he had not examined the victims and

26

was testifying generally to common responses of child victims of sexual abuse. Petitioner argues

27

that California law permits expert testimony about CSAAS only for the purpose of rehabilitating

28

a victim’s credibility. According to petitioner, that was not the case here.
30

1

Petitioner argues strenuously that the admission of the CSAAS evidence violated state

2

law. He cites few federal cases and in none of those cases did the Supreme Court hold that the

3

Constitution limits general expert testimony about the conduct of sex abuse victims to only that

4

testimony necessary to rehabilitate a victim’s credibility.

5

First, petitioner cites to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

6

(1993). Any argument based on Daubert is unavailing. The Court held in Daubert that Federal

7

Rule of Evidence 702 requires district judges to be gatekeepers for proposed scientific evidence

8

by assuring “that any and all scientific testimony or evidence admitted is not only relevant, but

9

reliable.” 509 U.S. at 589. Accordingly, an expert’s testimony must be based on scientific

10

knowledge that is grounded “in the methods and procedures of science,” and consists of more

11

than just “subjective belief or unsupported speculation.” Id. at 590–91. Daubert states a non-

12

constitutional evidentiary rule that applies in the federal trial courts. See Kumho Tires Co., Ltd.

13

v. Carmichael, 526 U.S. 137, 147 (1999) (“In Daubert, this Court held that Federal Rule of

14

Evidence 702 imposes a special obligation upon a trial judge to ‘ensure that any and all scientific

15

testimony...is not only relevant, but reliable.’” (citations omitted)); see also Wilson v. Sirmons,

16

536 F.3d 1064, 1101-02 (10th Cir. 2008) (“Daubert does not set any specific constitutional floor

17

on the admissibility of scientific evidence.”). As such, “Daubert does not bind the states, which

18

are free to formulate their own rules of evidence subject only to the limits imposed by the

19

Constitution.” Kinder v. Bowersox, 272 F.3d 532, 545 n.9 (8th Cir. 2001). Accordingly, Daubert

20

provides no basis for habeas relief.

21

Second, petitioner invokes the Confrontation Clause. He argues that the expert testimony

22

“advised the jury” to disregard ambiguities and inconsistencies in the victims’ testimony, thereby

23

limiting his right to confront those witnesses. Petitioner fails to state any plausible claim that his

24

confrontation rights were violated. The defense had the ability to fully cross-examine Dr.

25

Urquiza and the victims. Moreover, Dr. Urquiza did not testify about the reactions of the specific

26

victims in this case. Petitioner’s Confrontation Clause argument is baseless.

27
28

While, as discussed above, state court evidentiary rulings are generally considered to fall
outside the scope of habeas, there is some case law indicating that the admission of “flawed
31

1

expert testimony” can amount to a due process violation where the introduction of that evidence

2

“undermined the fundamental fairness of the entire trial.”5 Giminez v. Ochoa, 821 F.3d 1136,

3

1145 (9th Cir. 2016) (quoting Lee v. Houtzdale SCI, 798 F.3d 159, 162 (3d Cir. 2015)). On the

4

basis that petitioner may arguably state a federal claim, this court considers whether the

5

California Court of Appeal’s rejection of this claim was unreasonable under § 2254(d).

6

The California Court of Appeal thoroughly examined the state law issues. It concluded

7

that Dr. Urquiza testified consistent with state law principles that limit the testimony of an expert

8

on child sexual abuse. Those principles, as established by the California Supreme Court, are that:

9

“[E]xpert testimony on the common reactions of child molestation
victims is not admissible to prove that the complaining witness has
in fact been sexually abused; it is admissible to rehabilitate such
witness’s credibility when the defendant suggests that the child’s
conduct after the incident----e.g., a delay in reporting-is inconsistent
with his or her testimony claiming molestation. [Citations.] ‘Such
expert testimony is needed to disabuse jurors of commonly held
misconceptions about child sexual abuse, and to explain the
emotional antecedents of abused children’s seemingly selfimpeaching behavior.”’

10
11
12
13
14
15

(LD 4 at 22 (quoting People v. McAlpin 53 Cal.3d 1289, 1300-01 (1991)). Dr. Urquiza’s

16

testimony explained the five stages of CSAAS: “(1) secrecy; (2) helplessness; (3) entrapment and

17

accommodation; (4) delayed and unconvincing disclosure; and (5) retraction or recantation.” (LD

18

4 at 22.) The court noted that Urquiza testified that “he was not there to render an opinion as to

19

whether or not the alleged victims in this case were sexually abused .” He explained that CSAAS

20

is “an educational tool for therapists” and “often is used to educate jurors about sexual abuse and

21

to dispel myths or misunderstandings that they may have about sexual abuse.” (Id.)

22

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The Court of Appeals made this statement in Giminez in the context of considering whether Mr.
Giminez should be permitted to seek habeas relief for a second time. New evidence had come to
light which contradicted the prosecution’s scientific evidence introduced at trial. The Court held
that “habeas petitioners can allege a constitutional violation from the introduction of flawed
expert testimony at trial if they show that the introduction of this evidence undermined the
fundamental fairness of the entire trial. 821 F.3d at 1145 (internal citations and quotation marks
omitted). It appears to be limited to a showing that the prosecution’s forensic evidence was
scientifically flawed. That is not the case here. Nonetheless, this court considers the fundamental
fairness issue out of an abundance of caution.
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The evidence was appropriate, the Court of Appeal held, because it was used to counter

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suggestions that the victims’ conduct and statements were inconsistent with having been sexually

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abused. With respect to petitioner’s arguments that Dr. Urquiza’s testimony violated petitioner’s

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due process rights. The court simply noted that “[s]imilar arguments were raised and rejected in

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People v. Patino (1994) 26 Cal.App.4th 1737, at pages 1746-1747. We agree with that decision.”

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(LD 4 at 22.) In Patino, the court held that the “[a]ppellant has failed to demonstrate how his

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fundamental right to a fair trial was violated by the introduction of CSAAS testimony to

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rehabilitate [the victim’s] testimony after a rigorous defense cross-examination calling into

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question the victim's credibility.”
This court similarly finds no basis to conclude that petitioner’s right to a fair trial was

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fundamentally undermined by the testimony of Dr. Urquiza. The jury was repeatedly told,

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through testimony and questioning, that Dr. Urquiza was not rendering an opinion on the

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truthfulness of the victim witnesses or on the underlying issue of petitioner’s guilt. Petitioner

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makes no showing that the state court’s rejection of this claim was contrary to or an unreasonable

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application of clearly established federal law or based on an unreasonable determination of the

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facts.

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V. Cumulative Error
The Court of Appeal simply held that because it had “rejected each of defendant’s

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assertions of error, . . . his claim of cumulative prejudice requiring reversal of conviction also

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fails.” (LD 4 at 38.) Particularly in light of petitioner’s confessions to the charged conduct, it can

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hardly be said that any errors discussed above rendered petitioner’s trial fundamentally unfair.

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Petitioner’s final claim that the cumulative effect of all errors unfairly prejudiced him should be

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rejected.

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CONCLUSION

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For the foregoing reasons, the Clerk of the Court IS HEREBY ORDERED to randomly

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assign a district judge to this case, and

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IT IS RECOMMENDED that petitioner’s petition for a writ of habeas corpus be denied.

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These findings and recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty days after

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being served with these findings and recommendations, any party may file written objections with

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the court and serve a copy on all parties. The document should be captioned “Objections to

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Magistrate Judge's Findings and Recommendations.” Any response to the objections shall be

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filed and served within seven days after service of the objections. The parties are advised that

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failure to file objections within the specified time may result in waiver of the right to appeal the

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district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In the objections, the

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party may address whether a certificate of appealability should issue in the event an appeal of the

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judgment in this case is filed. See Rule 11, Rules Governing § 2254 Cases (the district court must

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issue or deny a certificate of appealability when it enters a final order adverse to the applicant).

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Dated: November 16, 2020

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DLB:9
DB/prisoner-habeas/sanc0455.fr

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