Vergason v. Lizarraga

Filing 17

MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 4/10/2018 ORDERING that the petition for writ of habeas corpus is DENIED. The Court DECLINES to issue certificate of appealabilty. The Clerk of the Court is to enter judgment accordingly. CASE CLOSED. (Zignago, K.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
TIMOTHY VERGASON,
No. 2:17-cv-01996-JKS
Petitioner,
MEMORANDUM DECISION
vs.
J. LIZARRAGA, Warden, Mule Creek
State Prison,
Respondent.

Timothy Vergason, a state prisoner proceeding pro se, filed a Petition for a Writ of
Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Vergason is in the custody of the
California Department of Corrections and Rehabilitation and incarcerated at Mule Creek State
Prison. Respondent has answered, and Vergason has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On June 26, 2015, Vergason was charged with committing two lewd acts—one each
against half-sisters J. and F. (Counts 1 and 2, respectively)—and an act of sexual penetration
against F. (Count 3). On direct appeal of his conviction, the California Court of Appeal laid out
the following facts regarding the charges against Vergason and the evidence presented at trial:
J. (born in 1996) and her half sister F. (born in 1999) lived with their mother and
her boyfriend in Weaverville. Starting in 2003, the boyfriend regularly beat the girls, but
their mother would do nothing to stop it. The girls often spent weekends at [Vergason’s]
house; they referred to [Vergason] as an uncle. While at [Vergason’s] house, he touched
both girls. At this time, J. was seven and F. was five.
In 2004, there was a sleepover at [Vergason’s] house. J. “caught [her] sister
sitting on top of [Vergason] and then [J.] was told to get on top as well,” but J. “ran into
the living room, where [she] was forced to touch” his penis. When J. initially caught F.
sitting on top of [Vergason], his pants were down to his knees, and F. did not have any
clothes over her genitals. He was holding her hips and rocking her back and forth. On

other occasions, [Vergason] “felt [J.] up.” She did not tell her mother because “it made
[J.] feel guilty and dirty.”
[Vergason] also molested F. on more than one occasion. Once, he told her to
straddle him and then “attempted to make an insertion, but as [she was] a five-year-old, it
became just skin to skin contact.” In a later incident, [Vergason] put his fingers inside
her vagina.
F. was removed from her mother’s house at age seven. She did not tell her
adopted mother about [Vergason’s] sexual abuse until age 12, when the adoptive mother
received a phone call from a detective about the molest and then talked to F. to confirm
it.
J. eventually disclosed the molestations in June 2011 when interviewed by Denise
Hinchcliff, a child molestation investigator with the Lake County District Attorney’s
Office. Hinchcliff had interviewed several hundred other child molest victims and
assisted in several hundred more. She was an expert in “the interviews of victims of
sexual assault and the special characteristics common in victims of sexual assault and
knowledge of sexual assault investigations.” Based on her experience in those
interviews, disassociation is common, which is when the victim is reluctant to talk and
displays a flat affect. Some molest victims say they do not remember the assault, but
later admit to her they remember, or sometimes the opposite is true (they admit the
molest to her but then recant after being removed from the house of their custodial
parent). The reasons for initial denials vary from being afraid to tell because they had
been sworn to secrecy or because they believed something bad may happen to their
families. When she interviewed J., J. crossed her arms a lot and did not show a lot of
emotion. J. at first just said that “something had happened.” Only later in the interview
did she describe the molestations in detail. Hinchcliff had “just a couple” hours of
training on child sexual abuse accommodation syndrome. That training did not play as
much of a role in her forming opinions about common characteristics of sexual assault
victims as her actual participation in interviews of sexual assault victims.
On September 7, 2011, Detective Jeremy Ammon of the Trinity County Sheriff’s
Department interviewed [Vergason]. The DVD of the interview was played for the jury
during Detective Ammon’s testimony, and the jury was also given a transcript of that
interview. The prosecutor asked Detective Ammon: “During your interview with
[Vergason] on September 7, 2011, did [he] apologize for his acts against the two victims
in this case?” Detective Ammon answered, “Yes, he did.” The transcript reflects the
following apology: “Yes, I apologize. For allowing them to umm carry on and umm,”
which [Vergason] then explained was oral sex between the two victims, not involving
him, that he failed to stop. According to Detective Ammon, “an apology would indicate
some type of admission.” Detective Ammon repeatedly asked if something inappropriate
happened with the two girls, and [Vergason] never said the girls must be lying.
[Vergason] “talked about playing house and kissing with the victims. He talked about
the victims performing oral sex on each other as he watched.” He thought that F.
“wanted to go farther [with him] . . . [like] having sex like the victims’ parents did.” He
“mention[ed] that he did hurt them, but he wasn’t specific on details of what we were

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talking about.” “He’s had a difficulty knowing where to draw the line and he’s been
working on that for over 30 years.”
Dr. Anthony Urquiza, a professor and director of the child abuse treatment
program in the pediatrics department at the University of California at Davis Medical
Center, testified as an expert on child sexual abuse accommodation syndrome. The
concept of child sexual abuse accommodation syndrome originated from a doctor in 1983
to educate therapists about typical behavior exhibited by child sexual abuse victims and
to dispel any misperceptions about how child victims might react. There are five parts to
child sexual abuse accommodation syndrome: secrecy, helplessness, entrapment and
accommodation, delayed and unconvincing disclosure, and recantation. Secrecy is when
victims keep quiet because it is not safe to talk about being sexually abused, possibly
because there is an ongoing relationship with the abuser, the abuser will do something
bad to the victim, or the victim may even get blamed. Helplessness is when victims feel
there is nothing they can do or should do about the abuse because it is being perpetrated
by someone who is bigger, stronger, and of more authority than the victim. Entrapment
and accommodation are coping mechanism victims use to manage their feelings about the
abuse. One coping mechanism is dissociation, which is when victims disconnect from
their feelings about the abuse and remain emotionless when discussing the molest with
therapists. Another coping mechanism is refusal to talk about the molest, thinking, “if I
cannot talk to anybody about this, if I can just get past it, that is the best thing for me to
do.” Delayed and unconvincing disclosure is the concept that when reporting abuse,
children first “test[ ] the waters. And if the response [from the adult who is listening]
comes back supportive, then they tell more and more about what happened.” At first, the
listener “shouldn’t expect a disclosure to be very clear and articulate. There may be a
first version, a third version, they may make errors and mistakes in how they describe
things.” Finally, recantation is analogous to retraction.
People v. Vergason, No. C081080, 2017 WL 712637, at *1-2 (Cal. Ct. App. Feb. 23, 2017).
At the conclusion of trial, the jury found Vergason guilty as charged. The trial court
sentenced Vergason to two consecutive terms of 15 years to life imprisonment for the lewd acts
under the one strike law,1 plus an additional 6 consecutive years for the sexual penetration.
Through counsel, Vergason appealed his conviction, arguing that: 1) the trial court erred
in admitting expert testimony that Vergason apologized for his acts against the victims and that
apology was an admission; 2) the trial court erred in permitting expert testimony on child sexual

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CAL. PENAL CODE § 667.61(b) (providing that a person convicted of a lewd and
lascivious act “shall be punished by imprisonment in the state prison for 15 years to life”).
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abuse accommodation syndrome (“CSAAS”) after the People had already presented an expert
covering the same matters; and 3) the trial court erred in sentencing Vergason to two terms under
the one strike law because he lacked notice of the one strike allegations on the lewd acts. The
Court of Appeal unanimously affirmed the judgment against Vergason in its entirety in a
reasoned, unpublished opinion issued on February 23, 2017. Vergason, 2017 WL 712637, at *5.
Vergason filed a counseled petition for review in the California Supreme Court, raising his
claims that the trial court erred in admitting expert testimony as to Vergason’s apology and
unlawfully sentenced him to two life terms under the one strike law. The petition was summarily
denied on May 10, 2017.
Vergason then timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on
September 20, 2017. Docket No. 1; see 28 U.S.C. § 2244(d)(1)(A).
II. GROUNDS/CLAIMS
In his pro se Petition before this Court, Vergason asserts two grounds for relief, which he
raised before the state courts on direct appeal. First, Vergason argues that the trial court violated
his rights to due process by permitting the prosecutor to elicit expert testimony that Vergason
apologized for his acts against the victims and that apology was an admission. He additionally
contends that the trial court unlawfully sentenced him to two consecutive life terms because he
lacked notice of the one strike allegations on the lewd acts counts.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the

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Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that
contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that
are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives
at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)
“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the
relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon
the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where
holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it
cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”
Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are
beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.
Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual federalism that the states possess primary
authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,
67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and
application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state

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court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536
U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)
(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). A summary denial is an adjudication
on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). Under
the AEDPA, the state court’s findings of fact are presumed to be correct unless the petitioner
rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003).
Vergason has not replied to Respondent’s answer. The relevant statute provides that
“[t]he allegations of a return to the writ of habeas corpus or of an answer to an order to show
cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the
extent that the judge finds from the evidence that they are not true.” 28 U.S.C. § 2248; see also
Carlson v. Landon, 342 U.S. 524, 530 (1952). Where, as here, there is no traverse filed and no
evidence offered to contradict the allegations of the return, the court must accept those
allegations as true. See Phillips v. Pitchess, 451 F.2d 913, 919 (9th Cir. 1971).
IV. DISCUSSION
Ground 1.

Evidentiary Error

Vergason first argues that the trial court violated his rights to due process by admitting
expert testimony that Vergason apologized and the apology was an admission. During Detective
Ammon’s testimony, the prosecutor asked: “During your interview with [Vergason] on
September 7, 2011, did [he] apologize for his acts against the two victims in this case?”

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Detective Ammon answered, “Yes, he did.” The detective further explained that “an apology
would indicate some type of admission.”
On direct appeal, the Court of Appeal held that Vergason had forfeited his federal due
process challenge because counsel failed to object on that ground at trial. Vergason, 2017 WL
712637, at *2. Counsel did, however, make an evidentiary objection for lack of foundation and
improper subject of expert witness testimony. Id. at *3. With respect to that claim, the Court of
Appeal agreed that Vergason “is correct that whether [he] apologized and whether an apology is
an admission were not the proper subject of expert witness testimony.” Id. The appellate court
consequently concluded that the trial court abused its discretion in admitting it, but nonetheless
determined that the error was harmless. Id.
Because the state appellate court found Vergason’s federal due process claim forfeited
under California’s contemporaneous objection rule, that claim is procedurally defaulted from
federal habeas review. Coleman, 501 U.S. at 729-30 (a federal court will not review a claim if
the state court’s rejection of the claim rests on a state law ground that is independent of the
federal question and adequate to support the judgment). The Ninth Circuit has repeatedly
recognized and applied the California contemporaneous objection rule in affirming denial of a
federal habeas petition on grounds of procedural default where there was a complete failure to
object at trial. See, e.g., Inthavong v. Lamarque, 420 F.3d 1055, 1058 (9th Cir. 2005); Paulino v.
Castro, 371 F.3d 1083, 1092-93 (9th Cir. 2004).
Moreover, Vergason’s claim based on the state evidentiary issue does not constitute a due
process violation. To the extent Vergason claims that the trial judge abused his discretion in
allowing the testimony, such claim is not cognizable on habeas review. Although the Ninth

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Circuit has suggested that an abuse of discretion may also amount to a constitutional violation,
see Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (en banc), the Supreme Court has never
held that abuse of discretion is an appropriate basis for granting federal habeas relief.2 Indeed,
quite to the contrary, the Supreme Court has strongly suggested that, while abuse of discretion is
an appropriate standard on direct review, in a federal habeas proceeding it is not. Renico, 559
U.S. at 772-73 (“It is not even whether it was an abuse of discretion for her to have done so–the
applicable standard on direct review. The question under the AEDPA is instead whether the
determination of the Michigan Supreme Court that there was no abuse of discretion was “an
unreasonable application of . . . clearly established Federal law.” (quoting § 2254(d)(1))). A
state court’s evidentiary ruling, even if erroneous, is grounds for federal habeas relief only if it
renders the state proceedings so fundamentally unfair as to violate due process. Holley v.
Yarborough, 568 F.3d 1091, 1101 (9th Cir.2009).
Here, Vergason fails to show that any state court error was so fundamentally unfair to
rise to the level of a due process violation. Notably, the record shows that the DVD of the
interview was played for the jury, and the jury was given a transcript of the interview. The jury
was therefore able to assess Vergason’s apology for itself, and it therefore cannot be said that
Vergason was denied a fair trial. Consequently, Vergason is not entitled to relief on this claim.
See Drayden v. White, 232 F.3d 704, 710 (9th Cir. 2000) (a state court’s evidentiary ruling, even

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At one time, the Ninth Circuit viewed a state court ruling to be “objectively
unreasonable” if it amounted to a clear error. Van Tran v. Lindsey, 212 F.3d 1143, 1152-54 (9th
Cir. 2000). This is the test the Ninth Circuit uses in reviewing a trial court decision under the
abuse of discretion standard. United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012) (en
banc). The Supreme Court noted Van Tran’s statement of the test and expressly rejected it as
inappropriate under the AEDPA. Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (clear error
standard is insufficiently deferential to state courts).
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if erroneous, is grounds for federal habeas relief only if it renders the state proceedings so
fundamentally unfair as to violate due process); Spivey v. Rocha, 194 F.3d 971, 977-78 (9th Cir.
1999); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991).
Ground 2.

Sentencing Error

Vergason additionally contends that the trial court violated his due process rights by
sentencing him to two consecutive life terms on the lewd acts convictions under the one strike
law. According to Vergason, the People failed to properly allege the applicable one-strike
circumstances that would potentially subject him to multiple indeterminate life terms. The Court
of Appeal considered and rejected this claim on direct appeal as follows:
[Vergason] contends the trial court unlawfully sentenced him to two consecutive
life terms for the lewd acts under the one strike law because he had no notice that the
multiple victim allegation applied to more than one count, as it was alleged only with
respect to F. in the sexual penetration charge. As the trial court concluded, [Vergason]
had adequate notice, so the court could lawfully impose a 15–year-to-life sentence for
each lewd act under the one strike law.
In making his argument, [Vergason] relies on People v. Mancebo (2002) 27
Cal.4th 735. In Mancebo, “the narrow question presented” was whether the fact of gun
use, which had already been properly pled and proved as a basis for invoking one strike
sentencing, could be used instead as a sentence enhancement under Penal Code section
12022.5, subdivision (a), while substituting the proven but not pled fact of multiple
victims, all without prior notice. (Mancebo, at pp. 738–739, 749.) Mancebo’s general
principle is that a defendant has a due process right to fair notice of the factual allegations
that will be invoked to impose a sentence enhancement or otherwise increase the
punishment for the charged crimes. (Mancebo, at p. 747.)
There was no such notice problem here. The pleadings put [Vergason] on notice
that he would be subject to a multiple victim one strike allegation on the lewd act
charges. The People charged [Vergason] with committing a lewd act against two
victims: J. in count one and F. in count two. Following each of these counts, the
information set forth special allegations (enumerated one and two) under the one strike
law, specifying as to each count “special allegation . . . sex crimes—aggravating
circumstances . . . within the meaning of Penal Code sections 667.61(j)(2) and (e).”
While the (j)(2) allegation did not end up being applicable because it was enacted after
[Vergason’s] crimes were committed, the allegation did place [Vergason] on notice that
(e) was also being charged, which included subdivision (e)(4) as follows: “The defendant
has been convicted in the present case or cases of committing an offense . . . against more
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than one victim.” (Pen. Code, § 667.61, subd. (e)(4).) In addition, at the end of the
information, the People also alleged as special allegation three, “It is further alleged,
within the meaning of Penal Code section 667.61(b) and (e), as to the defendant’s actions
that the following circumstances apply: The defendant has committed an offense
specified in PC 667.61(b)/(e)(4).” (Italics added.) It is reasonable to interpret this last
special allegation (special allegation three) as alleging that the lewd act charges would be
subject to the one strike enhancement, as the only basis for the section 667.61,
subdivision (e)(4) multiple victim “circumstances” based on [Vergason’s] “actions”
would be the lewd acts he committed against J. and F.—acts alleged in counts one and
two—and not the unlawful sexual penetration against F. alleged in count three. This
reading is also reflected in the filled-in verdict forms, as the jury found true allegations as
to the lewd act charges that [Vergason] committed a lewd act against more than one
victim “within in the meaning of Penal Code section 667.61(b)/(e)(4).” Thus, unlike in
Mancebo, the People here put [Vergason] on notice that he would be subject to the one
strike law for the lewd act charges if it was proved and found true that he committed the
charged lewd acts against the two victims.
Vergason, 2017 WL 712637, at *4.
Vergason fares no better on federal habeas review. It is clearly established federal law
that a criminal defendant has a Sixth Amendment right to be informed of any charges against
him, and that a charging document, such as an information, is the means by which such notice is
provided. Gautt v. Lewis, 489 F.3d 993, 1004 (9th Cir. 2007) (citing Cole v. Arkansas, 333 U.S.
196, 201 (1948)). To determine whether a defendant has received fair notice of the charges
against him, a reviewing court looks first to the information. See James v. Borg, 24 F.3d 20, 24
(9th Cir.), cert. denied, 513 U.S. 935 (1994); Lincoln v. Sunn, 807 F.2d 805, 812 (9th Cir. 1987).
The principal purpose of the information is to provide the defendant with a description of the
charges against him in sufficient detail to enable him to prepare a defense. See James, 24 F.3d at
24; United States v. Lane, 765 F.2d 1376, 1380 (9th Cir. 1985).
Here, the Court of Appeal was not unreasonable in concluding that “[t]he pleadings put
[Vergason] on notice that he would be subject to a multiple victim one strike allegation on the
lewd act charges.” Vergason, 2017 WL 712637, at *4. On the record before this Court, it cannot
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be said the information at issue was constitutionally deficient under Miller v. Stagner, 757 F.2d
988, 994 (9th Cir.1985) (“An information which tracks the applicable state statute affords
defendants fair notice of the crime with which they are charged.”). Moreover, Vergason’s
reliance on the state court decision in Mancebo is not persuasive. As thoroughly discussed by
the state appellate court, Mancebo is factually distinguishable from the case at bar. See
Vergason, 2017 WL 712637, at *4. Moreover, even if his argument that the lower court
misapplied state supreme court precedent was correct, the Supreme Court has repeatedly held
that federal habeas relief is unavailable for violations of state law or for alleged error in the
interpretation or application of state law. See Swarthout v. Cooke, 131 S. Ct. 859, 861-62
(2011); Estelle, 502 U.S. at 67-68 (1991); Peltier v. Wright, 15 F.3d 860, 861-62 (9th Cir. 1994).
Accordingly, the state court’s rejection of this claim was not contrary to, or an
unreasonable application of, clearly established Supreme Court precedent, nor was it based on an
unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d).
Vergason is not entitled to federal habeas relief on this claim either.
V. CONCLUSION AND ORDER
Vergason is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain
a certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the

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issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,
537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the
Ninth Circuit Court of Appeals. See FED. R. APP. P. 22(b); 9TH CIR. R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: April 10, 2018.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

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