Soria v. The People of California
Filing
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ORDER signed by Magistrate Judge Carolyn K. Delaney on 03/31/21 DENYING 1 petitioner's petition for writ of habeas corpus. This case be closed. The court declines to issue a certificate of appealability. CASE CLOSED.(Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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THEODORE SORIA,
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No. 2:18-cv-1218 CKD P
Petitioner,
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v.
ORDER
KATHLEEN ALLISON,1
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Respondent.
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Petitioner is proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. §
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2254. The parties have consented to this court’s jurisdiction pursuant to 28 U.S.C. § 636(c) and
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Local Rule 302.
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Following a Sacramento County jury trial concluding December 20, 2011, petitioner was
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found guilty of rape of an unconscious woman and rape of an intoxicated woman. ECF No. 12-
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16 at 122. Petitioner was later sentenced to a term of 11 years imprisonment. Id.
Petitioner raises 3 claims. For the reasons which follow, the petition for a writ of habeas
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corpus will be denied.
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California Department of Corrections and Rehabilitation (CDCR) Secretary Kathleen Allison is
hereby substituted as the respondent in this action pursuant to Rule 2(a) of the Rules Governing
Section 2254 Cases. It appears that petitioner is on parole from a sentence he served in CDCR.
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I. Background
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On direct appeal, the California Court of Appeal summarized the evidence presented at
trial as follows:
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Prosecution's Case–in–Chief
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On Saturday, November 28, 2009, around 8:00 or 9:00 p.m., the 44–
year–old defendant was home, drinking beer, and playing video
games, when his son Theo brought home three friends and a large
bottle of vodka. The group of four—all of whom were about 20 years
old—consisted of defendant's son, the son's new girlfriend, Karolyn
Hawley (Karolyn), the son's friend, Heriberto Corral (Beto), and
Beto's girlfriend, J.W., who is the victim. They planned to get drunk.
They started drinking the vodka with juice or soda in the son's
bedroom. Defendant stayed in the living room, but someone brought
him some vodka. The four young people mainly stayed in the son's
bedroom but came out on occasion. For example, the victim came
out for ice and Karolyn smoked marijuana with defendant in the
living room. The victim did not smoke any marijuana.
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The victim, who liked to get drunk and had previously blacked out
from binge-drinking, drank four or five drinks, got drunk and dizzy,
and vomited in the bathroom. Beto and Karolyn helped the victim to
the bedroom of defendant's daughter, Sophia, who had come home
earlier but left to sleep at a friend's house. The victim vomited in
Sophia's bedroom, perhaps in a garbage can. Karolyn testified that
she asked defendant for a “ratty shirt that he didn't really care about
that she could sleep in.” The reason she asked for the shirt was
because she thought it would be uncomfortable for the victim to sleep
in her clothes, but she told defendant she wanted the shirt for the
victim because “she was sick.” According to Karolyn, defendant
went to his room, obtained a black shirt, and gave it to her. Karolyn
brought the shirt to the victim in Sophia's room, said to change into
it, and left the room. The victim fell asleep or passed out on top of
the bedcovers, fully clothed. Karolyn and defendant's son fell asleep
around midnight in the son's room. Beto stayed up playing a video
game with defendant.
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Around 2:30 or 3:00 a.m., the victim awoke. Her vagina was sore
and wet. She was under the bedcovers, wearing only her underwear.
Her clothes were on the floor by the bed, as were defendant's
slippers.2 The victim did not see any other article of clothing that
belonged to defendant in the room. The victim found Beto asleep on
the living room couch. She woke him and asked if they had “messed
around.” He said no. The victim became scared and said she thought
defendant did something to her. The victim and Beto woke up
Karolyn and defendant's son, who said his father would not do
anything sexual like that. The four talked and eventually fell asleep
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Defendant did not allow people to wear shoes in the house. He kept his slippers by the front
door for anyone to wear, but the victim had never seen her friends wear the slippers, and Karolyn
recalled seeing defendant wearing the slippers earlier in the evening.
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in the son's room. They awoke around 11:00 a.m. and went out to
eat. The victim went home and showered.
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Later, the victim returned to defendant's home to meet up with Beto.
She saw defendant but did not interact with him. She saw Sophia,
who was holding defendant's shirt in her hand and asked the victim
what happened. Sophia noticed hickeys on the victim's neck. Beto
said he was not responsible for the hickeys. Sophia revealed she had
once been raped when drunk and that the victim should tell someone.
At trial, the victim for the first time stated that Sophia said her father
had “hit on” her friends in the past.
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After Sophia and the victim spoke, Sophia asked defendant, in the
victim's presence, why his shirt was in her bedroom. The victim
testified defendant replied he brought the shirt to the victim because
she was cold. The victim had no recollection of him bringing her a
shirt.
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Later that night, November 29, 2009, the victim told her mother what
happened after Beto said he would tell unless the victim told. The
three went to the hospital, where they spoke to a police officer who
took them to UC Davis Medical Center, where the victim underwent
a sexual assault examination.
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The victim testified that after the night in question, she continued to
visit defendant's home until she and Beto broke up in February 2010.
Defendant did not act any differently toward her during these visits.
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Karolyn, who did not believe defendant would ever take advantage
of a drunk woman for nonconsensual sex, testified that the defendant
did not treat the victim any differently when the victim visited the
house after the night in question, and the victim did not seem
uncomfortable around defendant during that time. Karolyn, who had
been 19 years old at the time, testified that on that night at defendant's
home, while she and defendant were smoking marijuana in the living
room, she leaned over, exposing her breasts, and defendant said,
“nice rack,” which she took as a compliment. Defendant had told
both the victim and Karolyn that they were pretty. Karolyn testified
she broke up with defendant's son in February 2010. She and
defendant remained close platonic friends, going to the gym or lunch
together or talking on the phone, but they did not talk about the case.
Karolyn was not friends with the victim.
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In April 2010, the victim, in the presence of a police detective, made
a pretext phone call to defendant, which was tape-recorded and
played for the jury. Defendant greeted her pleasantly, asked how she
was, and said he had not seen her in awhile. She said she was “pretty
good” and wanted to ask him “[a]bout that night I was over at your
house, and it was Theo, me, Beto [] and Karolyn, and we were
drinking with—in Theo's room. I had somebody rape me, but I didn't
really know who and I—I mean, I—your shirt and your slippers were
in Sophia's room, so I thought—and I'm pretty sure that you had sex
with me and I want to know why.” The following ensued:
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“[Defendant]: Real—really?
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“[Victim]: Yeah.
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“[Defendant]: Well, here let me sit down 'cause this is the first I've
heard of this. Hold on. Let me go in the other room. Hold on.
[Footnote omitted.] Okay. I'm in shock right now. So, anyways, so
what happened?
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“[Victim]: Why—I—why did you have sex with me while I was
passed out?
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“[Defendant]: You know, I don't remember that—that happening. I
don't remember that at all. And I—this is the first I've heard of this,
and it's—I don't know what to say. I'm shocked and sorry to hear
that.
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“[Victim]: But your shirt was on the floor, on the bedroom floor by
Sophia's bed.
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“[Defendant]: Is that the shirt that Sophia gave me? Because I
remember Karolyn giving me—coming up to me and asking me for
a shirt, and I gave her a—a—a black one. That's all I remember.
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“[Victim]: Oh, well, that's the one that I—that was on the floor as
well as your slippers.
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“[Defendant]: And I don't know about my slippers and stuff. I don't
know what happened with that.
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“[Victim]: I don't know. I woke up and they were by the bed.
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“[Defendant]: I don't remember any of that. I—I—I—all I
remember is I was passed out in the living room, and Beto woke me
up and he told me to get out of there, and so I went to my room and
that's all I remember.
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“[Victim]: Well, I know someone had taken my clothes off because
when I woke up, I didn't have them on, and when I fell asleep, they
were on.
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“[Defendant]: Hum.
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“[Victim]: So I don't—
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“[Defendant]: I don't know what to say other than I'm sorry. I don't
remember any of that.
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“[Victim]: I don't really remember. That's why I was calling to ask.
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“[Defendant]: I don't remember either. I just feel bad now. I mean,
I've always respected you and I—I always thought you were
attractive, but I don't remember ever carrying out anything like that.
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“[Victim]: Well, I know I had sex, and I know it was you. It had to
be.
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“[Defendant]: I don't remember. I—I would have to trust your word
on that and say sorry 'cause I don't remember anything like that. I'm
sorry, [J.]. And I—I really don't remember anything like that. I
just—I just apologize. If I did that, then I'm sorry.”
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The conversation continued in the same vein. The victim asked if
defendant had used protection, and he said he did not remember any
of that night, other than waking up around 5:00 or 6:00 a.m., when
“you guys” left and later came back. The victim said Beto said it
happened. Defendant expressed surprise and said Beto never
mentioned a word to him.
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The victim said she thought defendant was lying. Defendant said he
was sorry she felt that way. He woke up with all his clothes on in his
own bed and “I don't know. Honestly I don't know. I just—I—I—if
this all happened like you said, then I—I totally regret my actions,
and I apologize whole-heartedly. I don't remember any of that.” The
conversation continued:
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“[Victim]: Do you think I'm attractive?
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“[Defendant]: I always have, yeah. I just wish I was more in shape
and had money and stuff. I think probably I would think
(unintelligible) might be a little bit different if I was to ever ask you
out. But you were with Beto, so I never even thought of it. [¶] But,
yeah, I've always thought you were attractive. Still do. I just—I
don't remember any—doing anything stupid like that.”
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“[Victim]: Well, why would you do that if I was passed out?
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“[Defendant]: “I don't know. I can't explain my actions if that
happened that night like that. I don't remember. I don't remember at
all. I'm sorry. I just remember being hella drunk 'cause I remember
I was taking hits off that bottle besides drinking that beer. [¶] In fact,
the last thing I remember is Beto waking me up when I was passed
out on the living room floor still playing the video game. [¶] . . . [¶]
I remember all of us drinking and stuff. And I remember Karolyn. I
do remember Karolyn trying to make you smoke out of the bong. I
remember that. And I remember saying, don't—you know, don't do
it if you don't want to. [¶] Let's see what else I remember that night.
I remember playing video games. I remember all you guys went
inside Theodore's room, and that's about all I remember.”
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The victim asked if defendant was sorry. He said, “of course I am. I
don't want it like that. I've always liked you and stuff, and, you know,
I don't want it to be like that. I wish I would have talked to you about
this sooner. I didn't know. I swear.” The victim asked about
protection. He said he did not remember, but “if you're worried
about anything,” he was tested in January when he got into “that
other relationship” and was “totally clean.”
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After more of the same equivocal apologies “if it happened,”
defendant asked why the victim was calling now. She said she had
a nightmare about it. She asked:
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“[Victim]: Why did you do this?
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“[Defendant]: I honestly don't know. I don't know. I—the only
thing, like I said, is I've always thought you were pretty and
attractive, and I've always liked you as a person. I've always
respected you. I think you got your head on your shoulders, and I
think Beto's stupid. You know? That's what I thought—always
thought about you. I never thought about anything else like that.”
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The victim said, “I need you to say you're sorry.” Defendant said, “I
am. I'm sorry. I'm sorry. I just don't remember any of that. . . .” The
victim said she thought he was lying. Defendant said he was sorry
she felt that way. The victim finally ended the call.
The victim testified she did not really remember defendant being on
top of her, as she stated during the pretext call at the detective's
prompting. She was not attracted to defendant and felt “grossed out”
when he said he was attracted to her.
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A nurse testified she performed the sexual assault examination on the
victim. The victim said she had not had intercourse within the
previous five days. The nurse did not notice any bleeding, trauma,
or other physical injury, but sexual assault victims commonly present
without injury or trauma. Even unconscious, the body can lubricate
and have a sexual response. The examination revealed nothing
inconsistent with consensual sexual intercourse. The nurse did not
observe any sperm on genital swabs under the microscope but
forwarded them for DNA testing. However, the nurse did observe
an approximately two-centimeter hickey on the victim's neck.
A criminalist testified she detected sperm in the vaginal, cervical, and
anal swabs taken from the victim. The vaginal and cervical swabs
had high concentrations of sperm, while the anal swab had a low
concentration, which led the criminalist to opine that the sperm from
the anal swab was probably drainage from the vagina rather than
evidence of sodomy.
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Ryan Nickel, a criminalist with the Sacramento County District
Attorney's office, testified as a DNA expert. He analyzed a vaginal
swab [footnote omitted] first separating a sperm fraction from the
victim's epithelial cells, which are the cells lining body cavities.
Taking a small portion of the sperm fraction for DNA testing, Nickel
obtained a DNA profile from it and compared it to buccal reference
samples obtained from defendant, defendant's son, and Beto. Nickel
was able to exclude defendant's son and Beto as the major profile
contributor of the sperm fraction.
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Nickel compared the sperm fraction with defendant's buccal swab
sample at the standard 15 locations and testified they matched at 14
locations. At one location, locus D–5, there were three alleles instead
of the standard two. Two of these alleles were the same as
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defendant's profile at the D–5 locus, as were the alleles at the other
14 locations. One allele at D–5 was not consistent with defendant's
profile. Thus, Nickel concluded, “[t]he major profile from the sperm
fraction is the same as [defendant's] reference profile. And the
reason I said the major profile is because we have a location . . . at
D–5 where a minor allele was detected. And I called this in my report
as carryover from the [epithelial] cell fraction. . . . [The victim's]
profile is a 12, 12. And that is consistent with that minor allele being
carried over to that sperm fraction.” Nickel explained that the
differential extraction process “isn't a 100 percent efficient process.”
Carryover occurs when the sperm cells are not separated from all of
the epithelial cells in the extraction process and, for example, some
of the epithelial cells are in the sperm fragment. This kind of
carryover is “pretty common” and Nickel had seen it on “multiple
occasions.” The third allele was a 12, and the victim was a 12 at that
location. Nickel opined that “the most likely explanation, which we
see at the laboratory when we do differential extractions all of the
time, is carryover.”
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Nickel testified that there are two other possible explanations for the
third allele at D–5. One is that the profile includes a tri-allele. A triallele is a very rare phenomenon, but Nickel has occasionally
observed them. If the “12” allele at locus D–5 is part of a rare triallele, then the DNA profile for the sperm fraction does not match
defendant's DNA from the buccal swab, because defendant's DNA
from that swab has no tri-alleles at any locus. Nickel said the third
allele could be explained by a mutation, though he found no mutation
when working on the case, and his notes made no mention of a
mutation. Nickel indicated there was no way of knowing if it were a
tri-allele belonging to defendant without obtaining a semen sample
from defendant for comparison. [Footnote omitted.] Nickel testified
defendant's semen sample could be different from his buccal sample
by a tri-allele. Semen samples are not ordinarily collected by law
enforcement, but the defense could have obtained a sample of
defendant's semen and tested it. Nickel said that characterizing the
results as a tri-allele would not exclude defendant, despite the
absence of a tri-allele in defendant's DNA profile at locus D–5.
Another explanation for the third allele reading of “12” at locus D–5
could be that it came from an unknown male contributor or Beto.
Beto has a “12” allele at D–5, so it was possible that it was a
carryover from Beto. However, had the third allele been Beto's,
Nickel would have expected to see other alleles matching Beto's
profile. Nevertheless, he could not include or exclude Beto as being
the contributor of that allele.
On cross-examination, Nickel agreed there was “no scientific basis”
for his opinion that the third allele was carryover from the non-sperm
fraction. “I didn't determine that it was—but I've seen it in multiple
occasions that this crossover does occur, so I decided to call it as a
12 from carryover.” Nickel was not aware of any cases documenting
a 14–loci match in samples from different people.
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Nickel acknowledged that laboratory protocol requires repeating the
differential extraction process if epithelial cells are detected in a
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sperm fraction, but he did not do so because he saw no epithelial cells
in the small representative sample from the extraction he examined
under the microscope. When asked to explain how he could
characterize the third allele at locus D–5 as carryover from the
epithelial portion of the sample if the differential extraction process
was properly performed, Nickel said, “I'm saying there's no way to
determine that minor allele at the D–5 location, there's no scientific
basis to determine if it's carryover, triallele or another individual.”
Nickel's opinion that the third allele was carryover, was based on his
professional wisdom gathered from his work, training, experience,
and talking to colleagues.
Nickel provided several reasons why he decided to characterize the
third allele as carryover from the nonsperm fraction. He said he had
seen “in multiple occasions that this crossover does occur.” He
would expect to see additional alleles at other locations if there was
more than one sperm contributor to the vaginal sample. The absence
of additional alleles at other locations led him to form the opinion
that the additional allele was a carryover from the victim's DNA
profile. Thus, despite the other possibilities, based on his training
and experience, Nickel opined that defendant was the major DNA
contributor of the sperm fraction from the victim's vaginal swab.
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Using the FBI statistical program, Nickel testified the statistical
frequency of occurrence of the same DNA profile as defendant, who
does not have an identical twin, would be one in two sextillion
African–Americans, one in nine quintillion Caucasians, and one in
one quintillion Hispanics. [Footnote omitted.]
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Defense Case
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Michelle Okazaki testified she and defendant had been dating since
2007, exclusively, “[f]or the most part,” seeing each other “at least
once a month” until 2010. She did not hear from him for a long time
and assumed he lost interest. She later learned he had been arrested.
Eventually, in 2011, he told her about the victim's accusation.
Although Okazaki did not know about the accusation until 2011, she
testified she saw the victim and Beto at defendant's home a couple of
weeks after the night in question, and the victim was comfortable
around defendant and even wanted to spend the night at his house
rather than ride her bicycle or accept Okazaki's offer to drive her
home. Okazaki did not believe defendant would ever take advantage
of an intoxicated woman and commit a nonconsensual sex act.
Melissa Tiner testified she and defendant knew each other for 14 or
15 years, were best friends, and dated on and off for several months.
On the day after the night in question, she picked up defendant for
lunch. She had never seen him more hung over. She did not think
he would take advantage of a young intoxicated woman and commit
a nonconsensual sex act.
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Two of Sophia's friends testified they had been around defendant
when he was drunk and when he was sober and did not believe he
would ever take advantage of a young intoxicated woman and
commit a nonconsensual sex act.
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Beto testified that he and the victim both got drunk that night. He
had never seen her that drunk. However, he saw her drunk on many
occasions, sometimes so drunk that she later had no memory of what
she did. Beto checked on the victim after she went to Sophia's room
but did not recall whether her clothes were on, but he recalled that
she was under the covers. Around midnight, Beto went out to get
some food. When he returned, no one was awake. He woke up
defendant, who was “passed out” asleep on the living room floor, and
told him to go to bed. Defendant replied he was not sleeping and
resumed playing video games. Beto watched defendant playing the
video games until Beto fell asleep on the couch. At some point, Beto
heard defendant walk toward his bedroom, which is on the opposite
side of the house from Sophia's room. At some point thereafter, the
victim awakened Beto and asked if they had had sex. He said no.
She kept asking if he was certain. Eventually, she asked if he thought
defendant might have done something to her. When Beto asked why,
she said she woke up naked and defendant's slippers were by the bed.
After that night, Beto and the victim continued to hang out at
defendant's house, though the victim said she did not want to go there
anymore. On one occasion, they rode bikes to defendant's house, and
defendant gave them a ride home. Beto did not recall the victim
wanting to stay the night or Okazaki offering a ride home.
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Sophia testified defendant was wearing socks on the night in question
and did not usually wear slippers with socks. She said she
remembered he was wearing socks because “he had a hole in them.”
However, she also admitted she previously testified she had no
reason to pay attention to what defendant had on his feet. When
Sophia returned the next day, her bed was unmade and defendant's
shirt was on her floor. She asked her brother and Beto why, and they
told her what the victim said about waking up with a sore vagina.
When the victim returned, the victim confided the same thing to
Sophia, who related that she had been raped in high school, and
encouraged the victim to speak with someone. Sophia asked
defendant why his shirt was in her room. He said Karolyn wanted
the shirt because someone was vomiting. Sophia testified defendant
did not remember who was vomiting. “He was kind of all over the
place. Somebody needed a shirt kind of thing.” Sophia was
concerned that defendant's shirt and slippers had been in her room.
She checked the bedding for secretions but did not see anything. She
set aside the bedding in case the victim later remembered anything,
but when the victim came over the next day, Sophia washed the
bedding because she did not think the victim would come back if
defendant had raped her. Sophia never asked defendant about what
the victim had said. Sophia testified her father was respectful of her
privacy. None of her friends ever complained about defendant
hitting on them, and she did not believe he would ever take advantage
of a young intoxicated woman and commit a nonconsensual sex act.
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Defendant's son did not testify.
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Dr. Gregory Sokolov, a psychiatrist, testified as an expert witness on
Ambien. He said Ambien is a sedative prescribed for insomnia.
Most patients take it right before they go to bed. Patients with
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anticipatory anxiety about another sleepless night may take it earlier.
It is not prescribed for depression, but some patients take both
Ambien and an anti-depressant. Ambien is not recommended for
anxiety, but some doctors prescribe “off label.” Ambien has a very
rare side-effect in that it can cause a sedated hypnotic intoxicated
state, during which the patient engages in complex behavior while
unconscious of the act, with little or no memory of it later. The
behavior includes sleepwalking, sleep-eating, sleep-sex, and sleepdriving. Mixing alcohol with Ambien increases the risk of this
complex behavior. Around 2006 or 2007, the federal government
required the drug maker to warn doctors of this side-effect.
Responding to a hypothetical question involving nonconsensual sex
imposed upon another person by a person who took Ambien, drank
60 ounces of beer and four to five vodka cocktails, smoked
marijuana, and had no recollection of having sex, Dr. Sokolov opined
that the conduct “could be consistent with a sedative hypnotic
intoxication and/or complex behavior event,” and from a psychiatric
medical perspective, such conduct would be involuntary.
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Defendant testified. He planned to spend the evening alone on his
living room couch playing with his Xbox. He took an Ambien
around 4:00 or 5:00 p.m., before he went to the store and bought a
video game, a headset, and beer. Defendant testified he got a
prescription in 2006 to take Ambien as needed to help with anxiety,
stress, depression, and insomnia. He had taken Ambien for a couple
of nights before this incident due to stress from being laid off from
his job. Ambien sometimes puts him to sleep, but he did not care if
he fell asleep because he bought the game rather than renting it and
could play it whenever he wanted. Defendant did not learn of the
potential rare side effect of Ambien until a prior hearing when the
doctor testified.
As defendant was getting his game set up, he received a phone call
from the victim and Beto, wanting to come over. He reluctantly
agreed. His son came home with Karolyn, and the victim and Beto
arrived with a large bottle of vodka and some mixers. The four young
people mainly stayed in his son's bedroom and went back and forth
to the kitchen. Karolyn wanted to smoke marijuana, so she and
defendant smoked marijuana in the living room. The two young
men moved back and forth between the son's room and the living
room to check out the video game defendant was playing. The
victim offered defendant vodka and orange juice, and he accepted.
He accepted offers of refills and drank “around five-ish” vodka
drinks that night.
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The victim got drunk and loud. Defendant heard someone urging the
victim to lie down. He heard sounds like someone was vomiting. He
did not try to help, because it had happened before, and the girls
usually take care of it. Defendant testified that he had a vague
recollection of Karolyn asking him for a shirt, and he gave her one.
He had previously testified that he had just washed clothes and
obtained the shirt from the laundry.
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The last thing defendant remembered from that night is Beto helping
him up off the floor and into defendant's bedroom, though Beto
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contradicts it. The next thing defendant remembered is getting a
phone call the next morning around 11:00 a.m. from his friend
Melissa about a planned lunch with her he had forgotten. He awoke
with the worst hangover of his life. He did not have the burning
sensation that he gets after sex and there was no other indication he
had had sex the previous night. He was fully dressed as he had been
dressed the night before. Defendant was wearing a T-shirt, hooded
sweatshirt, sweat pants, and socks. That he awoke clothed was
significant to him because he takes off his clothes when he has sex
and he did not remember taking off his clothes that night. He keeps
slippers out for going outside or for women who complain about his
rule against wearing shoes in the house. He does not normally wear
his slippers around the house but does so on occasion. He testified
he does not know how his slippers got into Sophia's room. Nor does
he know how his sperm got into the victim's vagina.
When defendant returned home from having lunch with Melissa, the
victim and the others were playing a video game. The victim acted
completely normal, continued to hang out at defendant's home,
continued to interact with him as usual, and never said anything
about defendant having sex with her. On one of those visits, the
victim told Michelle that she, the victim, did not want to go home.
About four or five weeks after the night in question, the victim
stopped coming to defendant's home.
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14
15
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About three or four months after the night in question, defendant
received the phone call from the victim accusing him of rape. He
was shocked. He did not deny it, because she was a friend, he did
not remember anything from that night, and he “had no reason to
disbelieve her.” He apologized to be polite and let her know he was
sensitive. His daughter went through something like that and he
wanted to make sure the victim knew he was concerned about her
well-being. He told her he was attracted to her to be kind. He
testified, “I was in fear of what was going on as far as her saying that
I raped her and so I thought it was the best thing to ease the situation.
So being as polite as possible I said that as far as to pretty much
defuse the situation because I was clueless on what was going on at
that point in time because no one said anything.”
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21
Defendant was angry with Beto for not alerting defendant to the
victim's allegation, but defendant and Beto later reconciled.
22
Defendant testified his ex-wife complained he had difficulty
performing sex acts when drunk.
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24
25
26
Defendant admitted complimenting Karolyn's breasts. When she
asked for marijuana, she leaned over, and one breast fell out in front
of his face. He was uncomfortable and did not know what to say, so
he paid her the compliment, and she laughed, put her breast back in
her blouse, and they never spoke of it again. When asked if he would
joke with women about sex, he said, “I've been inappropriate, but I
wouldn't cross the line and touch nobody.”
27
28
Defendant testified he does not believe he had sex with the victim.
When asked on direct examination, “You heard the DNA evidence
11
in the case?” defendant answered, “Yeah, I have to accept that.” He
testified, “I have no memory of anything that night. Nothing.
Anything of having sex. Nothing. I don't remember nothing like
that.” When asked if he believed himself capable of taking
advantage of a young intoxicated woman without her consent, he
said, “No, absolutely not. And all my daughters' friends have partied
with me, they've slept on the couch along side with me and there's
been no incidents ever since I was even in college ever, anything
accusation [sic ] like this. No.”
1
2
3
4
5
6
7
Before this incident, the victim stayed overnight on her first visit to
defendant's home; she and two of her girlfriends slept on defendant's
bed, and he slept on the couch.
8
Prosecution Rebuttal Case
9
Sacramento Police Department Officer James Sobodash spoke with
Beto at the hospital when the victim was there for the sexual assault
examination. Beto told Sobodash that he went to Taco Bell around
11:30 p.m. The victim had been put in Sophia's room earlier. When
Beto returned around midnight, he checked on the victim. She was
covered by a blanket and was wearing her yellow and gray longsleeved shirt. Beto woke up defendant and watched him play a video
game until Beto fell asleep. Beto was awakened by the victim
around 2:30 a.m., and she told him about her suspicions. She
mentioned that defendant's slippers were by the bed. Beto asked to
see them and the victim went into Sophia's room and came out with
the slippers. Beto said he started to freak out at that point.
10
11
12
13
14
15
Later in the day, when Sophia was talking to the victim, Sophia asked
defendant why his shirt was in her bedroom. According to Beto,
defendant said the victim had asked for the shirt because she was
sick. The victim whispered to Beto that she had never asked
defendant for a shirt.
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Beto told Sobodash that the first time defendant met Karolyn he told
her, “Wow, you have a perfect pair of tits, you know that?”
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20
ECF No. 11-5 at 3-20.
21
II. Standards of Review Applicable to Habeas Corpus Claims
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
24
U.S.C. § 2254(a). A federal writ of habeas corpus is not available for alleged error in the
25
interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v.
26
McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.2d 1146, 1149 (9th Cir. 2000).
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12
1
2
Title 28 U.S.C. § 2254(d) sets forth the following limitation on the granting of federal
habeas corpus relief:
3
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 –
4
5
(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;
6
7
or
8
(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.
9
10
The “contrary to” and “unreasonable application” clauses of § 2254(d)(1) are different,
11
12
as the Supreme Court has explained:
A federal habeas court may issue the writ under the “contrary to”
clause if the state court applies a rule different from the governing
law set forth in our cases, or if it decides a case differently than we
have done on a set of materially indistinguishable facts. The court
may grant relief under the “unreasonable application” clause if the
state court correctly identifies the governing legal principle from our
decisions but unreasonably applies it to the facts of the particular
case. The focus of the latter inquiry is on whether the state court’s
application of clearly established federal law is objectively
unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362
13
14
15
16
17
18
(2000)] that an unreasonable application is different from an
incorrect one.
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20
Bell v. Cone, 535 U.S. 685, 694 (2002).
“A state court’s determination that a claim lacks merit precludes federal habeas relief so
21
22
long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”
23
Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652,
24
664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a
25
state prisoner must show that the state court’s ruling on the claim being presented in federal court
26
was so lacking in justification that there was an error well understood and comprehended in
27
existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.
28
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13
1
2
The court looks to the last reasoned state court decision as the basis for the state court
judgment. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011).
3
The petitioner bears “the burden to demonstrate that ‘there was no reasonable basis for the
4
state court to deny relief.’” Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter,
5
562 U.S. at 98).
6
III. Petitioner’s Claims
7
A. Insufficient Evidence
8
In his first claim, petitioner asserts there was not sufficient evidence presented at trial to
9
sustain his convictions. Evidence is constitutionally sufficient to support a jury’s finding if when,
10
“viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
11
could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
12
Virginia, 443 U.S. 307, 319 (1979).
13
The last reasoned decision with respect to petitioner’s insufficiency of the evidence claim
14
was issued by the California Court of Appeal on direct appeal. After recognizing the appropriate
15
standard from Jackson, the Court of Appeal found as follows:
16
Here, the combination of the DNA evidence and other circumstantial
evidence was sufficient to support the judgment. The DNA testing
of the sperm fragment from the vaginal swab matched defendant at
14 loci. It is uncontroverted that the major profile is not Beto and it
is not defendant’s son. That leaves the only other male in the house,
defendant. Unless there was some unknown male at the house who
had intercourse with the victim who had the exact same profile at
every location except one, where a potential triallele is located, then
it must have been defendant who was the perpetrator. Nickel was
not aware of any cases documenting a 14-loci match in samples from
different people. Nor did defendant introduce any evidence
indicating as much.3
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19
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22
There was also non-DNA evidence. Defendant’s slippers were found
next to the bed, as were the victim’s clothes, and when the victim
went to bed, she was fully clothed. Defendant had no explanation
for why his slippers were by the bed when confronted with this
assertion during the pretext call. His shirt was also found on the
floor. When confronted by Sophia about the shirt, the victim
remembered that defendant said he brought it to her because she was
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24
25
26
27
28
See People v. Robinson (2010) 47 Cal.4th 1104, 1115 [defendant’s DNA was analyzed at 13
loci and the prosecution expert testified that there had been no reported cases of two people who
are not identical twins matching at all 13 loci].
14
3
1
cold, and Beto said defendant claimed the victim had asked him for
a shirt. She had not. The jury was not required to accept the
explanation defendant gave for this evidence at trial. Moreover, even
at trial, defendant never expressly denied the rape. Instead, he just
claimed he did not remember it, even though during the pretext call,
which came out of the blue months after the night in question, he
remembered other details of that night, e.g., that his son’s girlfriend
purportedly asked him for a shirt, that he provided her with a shirt,
and that the shirt was black; that he took hits off a bottle and also had
beer; that he smoked from a bong with his son’s girlfriend; that his
son’s girlfriend tried to get the victim to smoke; that the victim
declined the marijuana; that he passed out in the living room while
playing the video game; that Beto woke him; that he went to bed in
his bedroom; and that he woke up fully clothed. There is sufficient
evidence to support defendant’s conviction.
2
3
4
5
6
7
8
9
ECF No. 11-5 at 30-31
After reviewing all material portions of the record before the court, the court agrees with
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11
the assessment of petitioner’s sufficiency of the evidence claim put forward by the Court of
12
Appeal. For this reason, and because the Court of Appeal’s rejection of petitioner’s sufficiency of
13
the claim is not contrary to Supreme Court precedent, it does not involve an unreasonable
14
application of Supreme Court precedent and it is not based upon an unreasonable determination
15
of the facts, habeas relief is precluded under 28 U.S.C. § 2254(d).4
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B. Sentencing
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As indicated above, petitioner was sentenced to 11 years imprisonment. Petitioner was
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sentenced to the low term of 3 years for rape of an unconscious woman with that term being
19
doubled pursuant to Cal. Penal Code § 667(e)(1) because defendant admitted he had been
20
convicted of assault with a deadly weapon in 1991. ECF No. 11-5 at 20 & 35. Five additional
21
years were added pursuant to § 667(a)(1) also due to petitioner’s assault with a deadly weapon
22
conviction. Id. Petitioner claims the trial court abused its discretion in imposing this sentence by
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not adequately considering mitigating factors.
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4
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The court notes that before the court of appeal, petitioner challenged the admissibility of the
DNA evidence as a violation of due process. ECF No. 11-5 at 23-28. While petitioner argues
concerning the value of the DNA evidence, he makes no specific argument that admission of the
evidence violates some aspect of federal law.
15
1
Whether the trial court abused its discretion at sentencing is a matter of California law.
2
Since a petition for a writ of habeas corpus under 28 U.S.C. § 2254 can only be granted for a
3
violation of federal law, relief can not be granted as to petitioner’s sentencing claim.
4
C. Telephone Call and “Adoptive Admission” Instruction
5
Petitioner makes a claim related to the phone call described above between petitioner and
6
the victim. Petitioner asserts that “[t]he pretext call was fabricated by the Detective, and was a
7
method of interrogation to circumvent and prevent request of counsel and due process.”
8
However, petitioner fails to point to anything suggesting that the phone call itself or admission of
9
parts of the call into evidence amount to a violation of any federal right.
10
11
12
Petitioner also argues the jury was improperly instructed as to an “adoptive admission”
based upon the call. At trial, jurors were instructed as follows:
13
If you conclude that someone made a statement outside of court that
accused the defendant of the crime and the defendant did not deny it,
you must decide whether each of the following is true:
14
1. The statement was made to the defendant or made in his presence;
15
2. The defendant heard and understood the statement;
16
3. The defendant would, under all the circumstances, naturally have
denied the statement if he thought it was true;
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18
19
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AND
4. The defendant could have denied it but did not.
If you decide that all of these requirements have been met, you may
conclude that the defendant admitted the statement was true.
If you decide that any of these requirements has not been met, you
must not consider either the statement or the defendant’s response
for any purpose.
ECF 12-16 at 32-33.
Again, whether this instruction was given in violation of California law is immaterial as a
25
violation of California law alone does not provide a basis for federal habeas relief. 28 U.S.C. §
26
2254(a). Petitioner seems to suggest that the instruction implies that petitioner made certain
27
admissions where he did not, but that is not the case. The instruction did not tell jurors they had
28
to find admissions under certain circumstances. Rather, the import of the instruction was that,
16
1
unless certain conditions were met, a statement made in the defendant’s presence and defendant’s
2
response to that statement (including a lack of a response) could not be considered at all.
3
Accordingly, this instruction protected petitioner rather than prejudicing his case, and did not
4
deprive petitioner of a fair trial as he suggests.
Furthermore, the last reasoned decision concerning petitioner’s claim was issued by the
5
6
California Court of Appeal. ECF No. 11-5 at 31-36. The Court of Appeal’s rejection of the claim
7
is not contrary to Supreme Court precedent, it does not involve an unreasonable application of
8
Supreme Court precedent, and it is not based upon an unreasonable determination of the facts.
9
Accordingly, habeas relief is precluded under 28 U.S.C. § 2254(d).
10
IV. Conclusion
For all of the foregoing reasons, petitioner’s petition for a writ of habeas corpus will be
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12
denied.
13
In accordance with the above, IT IS HEREBY ORDERED that:
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1. Petitioner’s petition for a writ of habeas corpus (ECF No. 1) is denied;
15
2. This case be closed; and
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3. The court declines to issue a certificate of appealability as referenced in 28 U.S.C. §
17
2253.
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Dated: March 31, 2021
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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