(HC) Morse v. The People of the State of California

Filing 14

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 8/1/2022 RECOMMENDING that 1 Petition for Writ of Habeas Corpus be denied. Referred to District Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations. (Huang, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT TODD MORSE,

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No. 2:21-cv-01667-TLN-KJN P

Petitioner,
v.

FINDINGS & RECOMMENDATIONS

CRAIG KOENIG,

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Respondent.

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I. Introduction
Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his December 4, 2017

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conviction for forcible rape and lewd acts upon three children. Petitioner was sentenced to 90

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years to life plus six years in state prison. Petitioner raises the following claims: (1) prosecutorial

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misconduct for misstating the presumption of innocence during closing argument; (2) denial of

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motion to sever counts 12 and 13 violated his due process rights; (3) admission of prior sexual

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offenses violated his due process rights; (4) errors were cumulatively prejudicial; (5) insufficient

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evidence to support conviction on count 1; (6) denial to hear and rule on defendant’s motion for a

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new trial violated his due process rights: (7) ineffective assistance of counsel for failing to present

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witnesses and exculpatory evidence; (8) ineffective assistance of counsel for failing to file a

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motion for a new trial based on errors in jury verdict forms; (9) these additional errors were
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cumulatively prejudicial. After careful review of the record, this Court concludes that the petition

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should be denied.

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II. Procedural History

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On October 16, 2017, a jury found petitioner guilty of forcible rape and lewd acts upon

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three children. (ECF No. 12-7.) On August 6, 2018, petitioner was sentenced to 90 years to life

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plus six years in state prison. (Id.)

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Petitioner appealed the conviction to the California Court of Appeal, Third Appellate

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District. (ECF Nos. 12-10 to 12-11.) The Court of Appeal affirmed the conviction on July 16,

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2019. (ECF No. 12-12.)

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Petitioner filed a petition for review in the California Supreme Court, which was denied

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on September 18, 2019. (ECF Nos. 12-13 to 12-14.) He also filed states habeas petitions, which

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the state courts denied. (ECF Nos. 12-15 to 12-21.)

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Petitioner filed the instant petition on September 1, 2021. (ECF No. 1.) Respondent filed

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an answer on January 21, 2022. (ECF Nos. 11 and 12.)

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III. Facts 1
After independently reviewing the record, this court finds the appellate court’s summary

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accurate and adopts it herein. In its unpublished memorandum and opinion affirming petitioner’s

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judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District

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provided the following factual summary:

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In 2015, after a program at school, K. told one of her teachers she
had been inappropriately touched and fondled when she was
younger. She wanted advice on whether she should tell her parents.
The teacher reported the allegations. As a result of this report,
Sergeant Brandon Bean investigated the matter. During the course of
investigating, Bean learned defendant also molested K.’s older sister,
Ke. Bean ran a full background check on defendant and learned
defendant had a prior conviction from New York for sexual offenses
committed against his niece, D. Bean spoke with D. in 2015 and
learned defendant had also committed crimes against D. in 1989 or
1990 in California that had never been reported.

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The facts are taken from the opinion of the California Court of Appeal for the Third Appellate
District in People v. Morse, No. C086129, 2019 WL 3162132 (Cal. Ct. App. July 16, 2019), a
copy of which was lodged by respondent as ECF No. 12-12.
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D.’s Testimony

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D. lived in New York. In 1989 or 1990, when she was 12 years old,
she visited her grandmother in California. On this trip, defendant
raped her for the first time. While at her grandmother’s home, D.
slept on the sectional couch in the living room. Everyone in the house
went to bed except defendant, who was still in the living room with
D. He passed her a note asking if she had ever had intercourse. She
answered she did not know what that was. After passing more notes,
she left the room to change. When she returned to the living room,
defendant was watching a pornographic movie. She turned the movie
off. The next thing D. remembered, she was on the couch, defendant
had climbed on top of her, and put his penis in her vagina. As she
was crying, he put his fingers on her lips, and promised her it would
not hurt. It was a few years before D. saw defendant again.

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Later, defendant lived in New York, about 30 minutes away from
D.’s home. She would see him regularly at family gatherings and
holidays. During this time, defendant forced D. to have sex with him
on multiple occasions. This included when she would spend the night
at defendant’s girlfriend’s house after babysitting for them. He would
come into her bedroom in the middle of the night and have sex with
her. He also forced her to have sex at her 14th or 15th birthday party.
At that party, they were riding four wheelers in a field, D. ended upon
the ground with no one else around. Defendant took her pants down,
put his penis in her vagina, and “pleasured himself.”
When D. was 16 years old, defendant raped her again. The day before
the rape, he had asked her to stay home from school and she refused
because she knew he intended to have sex with her, as he had on
many other occasions. When she got home from school, she heard
the door open and panicked, because she knew what was going to
happen. He came to her bedroom, started kissing her, fondling her
breasts, and undressed her. She resisted and told him to stop, but he
did not. He pushed her down on the bed and orally copulated her,
then he removed his pants and put his penis in her vagina. He pulled
his penis out, ejaculated on her stomach, got dressed and left. He told
her not to say anything. D.’s boyfriend called her shortly after
defendant had left and she told him what happened. She also told her
parents and called the police. As a result of this assault, defendant
was convicted of sexual abuse in the first degree in New York.

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Defendant acknowledged he lived in California in 1989 and 1990
when D. came to visit his mother, her grandmother. He remembered
D. visiting, but denied he had ever asked her to watch a movie or had
sexual intercourse with her in California. He admitted he had sexual
intercourse with her a couple of times later in New York, but denied
he had forced her to have sex. He claimed she first initiated sex with
him by orally copulating him after she babysat his son.

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Ke. & K.

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Ke. and K.’s aunt1 and her live-in boyfriend, defendant, babysat the
sisters after school and during the day in summer. Although they did
not call him uncle, they viewed the relationship with him as an uncle.

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When Ke. was between 9 and 14 years old and K. was between 6 and
10 years old, they would go to defendant’s house after school and
would be there for a couple of hours. During summer, K. would
spend full days there. The home had a pool and defendant would
swim with Ke., K., and their cousin.

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[N.1 The aunt was Ke. and K.’s stepmother’s sister.]

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Defendant repeatedly molested both Ke. and K. in the pool. When
Ke. was between 10 and 12 years old, defendant regularly grabbed
her breasts from behind her when they were in the pool. In the pool,
he pulled her against him from behind and put his hands down her
shorts, touched her vagina, and rubbed her clitoris. He also came up
behind her and grabbed and pinched her butt. Ke. estimated the
molestations occurred once or twice a week in the summer over the
course of a few summers.

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Defendant also repeatedly molested K. in the pool. Once, when she
was eight or nine years old, defendant was wearing goggles in the
pool, defendant swam under the water and moved K.’s bathing suit
bottom to look at her vagina. She felt him hook his finger under the
band of her bathing suit and move it. His head was approximately 18
inches away from her vagina. The cousin was also in the pool, but
was swimming around so he did not see this happen. Another time,
when K. was around the same age, defendant held her floating on her
back, and positioned K. with her legs over the side of the pool and
the jet of the pool streaming onto her vagina. He asked her if it felt
good. She answered no and swam away. Defendant also threw K. in
the pool. Before throwing her, he positioned her on his lap in such a
way she could feel the pressure of his penis against her bottom and
his hands lingered on her bottom.
Defendant molested K. and Ke. on other occasions in the home. One
time while K. was playing a Game Boy in the cousin’s bedroom,
defendant came in the room, standing behind her, he started rubbing
K.’s arms and shoulders, then put his fingers in her shirt and lifted it
to look down her shirt. Defendant would also walk by Ke. in the
house, and grab her butt and “stuff like that,” a lot.
Defendant used a vibrator with both K. and Ke. When Ke. was 12 or
13 years old, her aunt had left to take her boys to a soccer game and
left Ke. with defendant at the house. Ke. fell asleep on the couch. She
woke up with defendant next to her, touching her on her genitals, and
rubbing her vagina and clitoris under her pants. She told him to stop
and he told her, “Shut up, you know you like it.” He went into his
bedroom, got a sex toy and came back with a vibrator with a remote
control attached to it. It was small, oval shaped, and pink or purple.
He was kneeling in front of her, put the vibrator down her pants,
turned it on, and kept moving it up and down. He did not stop until
he heard footsteps coming up the stairs as her aunt, K., and the cousin
came home. She did not tell anyone because she did not think they
would believe her, particularly because at that time her aunt always
thought she was lying. When K. was between 8 and 10 years old,
during a game of hide and seek, while K. was hiding in a chair with
her lower back exposed, defendant came up behind her and put a
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silver small bullet shaped vibrator against her lower back, just above
the crack of her buttocks. He moved it side to side across her back.
She told him to go away because she was hiding.

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During his investigation, Bean found defendant’s driver’s license
alongside various sex toys in a chest of drawers in defendant’s
bedroom. Specifically, there was a silver “bullet” vibrator attached
to a remote control. There was also a rubbery purple item that could
be placed over the vibrator.

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When she was in 6th or 7th grade (between 2005 and 2007), Ke. told
her friend, T., that she had been touched inappropriately. Years after
the molestation, Ke. also told her mother about it. In 2013, K. told
the cousin defendant had touched her inappropriately. Although they
were close, the sisters never told each other what defendant had done.

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In the middle of her freshman year in high school, Ke. moved out of
town to live with her mother. K. stopped going to defendant’s house
because of the molestation when she was in 7th or 8th grade.

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Defendant acknowledged he threw the children in the pool from his
knee with his hand on their bottom, but denied there was any sexual
intent. He denied ever moving K.’s bathing suit bottom to look at her
vagina or positioning her with the water jet hitting her vagina. He
denied ever touching Ke.’s breasts in the pool, putting his hands in
her shorts or grabbing her butt. He denied putting his hands in K.’s
shirt and looking at her breasts, stating his hands were too big to fit
down a “little kid’s shirt.” He admitted he had put a massager on K.’s
back, not a vibrator, in a playful way to “make her jump.” He
acknowledged he kept sex toys in a bedroom drawer, but denied ever
touching Ke. with it or showing it to her.

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(ECF No. 12-12 at 2-6.)

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IV. Standards for a Writ of Habeas Corpus

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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 or treaties of the United

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States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation

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

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502 U.S. 62, 67-68 (1991).

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Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim 5

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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

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(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

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28 U.S.C. § 2254(d).
For purposes of applying § 2254(d)(1), “clearly established Federal law” consists of

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holdings of the Supreme Court at the time of the last reasoned state court decision. Thompson v.

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Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 132 S. Ct. 38, 44-45

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(2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S.

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362, 412 (2000)). Circuit court precedent “may be persuasive in determining what law is clearly

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established and whether a state court applied that law unreasonably.” Stanley, 633 F.3d at 859

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(quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may

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not be “used to refine or sharpen a general principle of Supreme Court jurisprudence into a

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specific legal rule that th[e] [Supreme] Court has not announced.” Marshall v. Rodgers, 133 S.

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Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (per curiam)).

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Nor may it be used to “determine whether a particular rule of law is so widely accepted among

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the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct.”

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Id. Further, where courts of appeals have diverged in their treatment of an issue, there is no

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“clearly established federal law” governing that issue. See Carey v. Musladin, 549 U.S. 70, 77

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(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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Under the “unreasonable application” clause of § 2254(d)(1), “a federal habeas court may grant

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the writ if the state court identifies the correct governing legal principle from [the Supreme

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Court’s] decisions, but unreasonably applies that principle to the facts of the prisoner’s case.” 2

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Under § 2254(d)(2), a state court decision based on a factual determination is not to be
overturned on factual grounds unless it is “objectively unreasonable in light of the evidence
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Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (quoting Williams, 529 U.S. at 413); see also Chia v.

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Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, “a federal habeas court may not issue

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the writ simply because that court concludes in its independent judgment that the relevant state-

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court decision applied clearly established federal law erroneously or incorrectly. Rather, that

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application must also be unreasonable.” Williams, 529 U.S. at 411; see also Schriro v. Landrigan,

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550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (“It is not enough that a federal habeas court,

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in its ‘independent review of the legal question,’ is left with a ‘“firm conviction”’ that the state

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court was ‘“erroneous”’”). “A state court’s determination that a claim lacks merit precludes

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federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state

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court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v.

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Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus

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from a federal court, a state prisoner must show that the state court’s ruling on the claim being

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presented in federal court was so lacking in justification that there was an error well understood

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and comprehended in existing law beyond any possibility for fair-minded disagreement.” Id. at

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103.

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If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing

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court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford,

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527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)

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(en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of

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§ 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by

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considering de novo the constitutional issues raised.”).

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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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If the last reasoned state court decision adopts or substantially incorporates the reasoning from a

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previous state court decision, this court may consider both decisions to ascertain the reasoning of

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the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a

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presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford,
384 F.3d 628, 638 (9th Cir. 2004)).
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federal claim has been presented to a state court and the state court has denied relief, it may be

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presumed that the state court adjudicated the claim on the merits in the absence of any indication

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or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption

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may be overcome by a showing “there is reason to think some other explanation for the state

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court’s decision is more likely.” Id. at 99-100. Similarly, when a state court decision on

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petitioner’s claims rejects some claims but does not expressly address a federal claim, a federal

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habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the

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merits. Johnson v. Williams, 568 U.S. 289, 298-301 (2013) (citing Richter, 562 U.S. at 98). If a

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state court fails to adjudicate a component of the petitioner’s federal claim, the component is

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reviewed de novo in federal court. See, e.g., Wiggins v. Smith, 539 U.S. 510, 534 (2003).

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Where the state court reaches a decision on the merits but provides no reasoning to

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support its conclusion, a federal habeas court independently reviews the record to determine

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whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.

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Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo

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review of the constitutional issue, but rather, the only method by which we can determine whether

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a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no

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reasoned decision is available, the habeas petitioner has the burden of “showing there was no

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reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98.

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A summary denial is presumed to be a denial on the merits of the petitioner’s claims.

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Stancle v. Clay, 692 F.3d 948, 957 & n.3 (9th Cir. 2012). While the federal court cannot analyze

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just what the state court did when it issued a summary denial, the federal court reviews the state

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court record to “determine what arguments or theories . . . could have supported the state court’s

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decision; and then it must ask whether it is possible fairminded jurists could disagree that those

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arguments or theories are inconsistent with the holding in a prior decision of [the Supreme]

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Court.” Richter, 562 U.S. at 101. It remains the petitioner’s burden to demonstrate that ‘there

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was no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709 F.3d 925, 939

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(9th Cir. 2013) (quoting Richter, 562 U.S. at 98).

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When it is clear, however, that a state court has not reached the merits of a petitioner’s
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claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal

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habeas court must review the claim de novo. Stanley, 633 F.3d at 860 (citing Reynoso v.

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Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006)).

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V. Petitioner’s Claims

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A. Prosecutorial Misconduct (Claim One)

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Petitioner claims that the prosecutor committed prosecutorial misconduct by misstating

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the presumption of innocence in closing arguments, and to the extent that his defense counsel

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forfeited this claim by not objecting to it during trial, his counsel was constitutionally ineffective.

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(ECF No. 1 at 41-51.) In response, respondent argues that petitioner’s prosecutorial misconduct

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claim is procedurally barred. On the merits, respondent asserts that the state court’s denial of the

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misconduct and ineffective assistance of counsel claim was reasonable. (ECF No. 11 at 20-.)

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In the last reasoned opinion, the state appellate court considered and rejected petitioner’s
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Prosecutorial Misconduct

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Defendant contends the prosecutor committed prejudicial
misconduct by misstating the presumption of innocence in closing
argument. Recognizing defense counsel did not object to this
argument, he also argues counsel was ineffective.

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Background
Prior to closing argument, the trial court orally instructed the jury on
the presumption of innocence. The court instructed the jury: “The
fact that a criminal charge has been filed against the defendant is not
evidence that the charge is true. You must not be biased against the
defendant just because he has been arrested, charged with a crime, or
brought to trial.
“A defendant in a criminal case is presumed to be innocent. This
presumption requires that the People prove a defendant guilty beyond
a reasonable doubt. Whenever I tell you the People must prove
something, I mean they must prove it beyond a reasonable doubt
unless I specifically tell you otherwise.
“Proof beyond a reasonable doubt is proof that leaves you with an
abiding conviction that the charge is true. The evidence need not
eliminate all possible doubt because everything in life is open to
some possible or imaginary doubt.
“In deciding whether the People have proved their case beyond a
reasonable doubt, you must impartially compare and consider all the
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evidence that was received throughout the entire trial. Unless the
evidence proves the defendant guilty beyond a reasonable doubt, he
is entitled to an acquittal and you must find him not guilty.”
(CALCRIM No. 220.)
The trial court also instructed the jury that if any of “the attorneys’
comments on the law conflict with my instructions, you must follow
my instructions.” (CALCRIM No. 200.)
The prosecutor twice discussed the presumption of innocence in her
closing argument. First, in discussing defendant’s testimony, “[L]et
me start by saying this: The burden of proof in this case, like in every
single courtroom across this country, rests squarely on the
prosecution. [¶] He is presumed innocent unless and until he is
proven guilty beyond a reasonable doubt. But that doesn’t mean that
his statements and when he testifies as a witness, he gets treated any
differently than any other witness.”
At the end of her closing argument, after arguing the testimony of the
three victims who independently disclosed and told their stories, the
corroborating evidence, the defendant’s testimony, and the elements
of the charges and how the evidence met those elements, the
prosecutor argued: “The presumption of innocence is the cornerstone
of our criminal justice system. It applies to every criminal case in the
entire United States and it is an important one. But what I will remind
you, now that we’re getting at the end of this case, is that that
presumption of innocence doesn’t only protect innocent people.
Guilty people are presumed, at the start of the case, innocent, too.
We have removed that cloak. You get to see and determine for
yourselves what lies beneath. He demanded a trial, like every person
in the United States does, and we gave him that. [Ke.], [K.], and [D.],
and law enforcement did their jobs. Now, I’m asking you to do
yours.” Defense counsel did not object to this statement.
In defense counsel’s closing argument, he repeatedly argued it was
the People’s burden to prove defendant guilty beyond a reasonable
doubt. He argued, “I’m not asking you to find my client innocent. It’s
not what we’re here to do. They have a burden to prove my client is
guilty beyond a reasonable doubt. It’s not your job to find him
innocent. It’s your job to determine whether the People have
evidence to meet their burden before you convict my client.” And,
again later, defense counsel argued, “[I]t’s your duty to ensure that
the People have proven beyond a reasonable doubt the charges
against my client. [¶] Again, as I stated before, I’m not telling you
that my client is innocent. I’m not saying that he is pure as the driven
snow.... [¶] ... You have to use the standard beyond a reasonable
doubt and hold the People to that standard, and I assert to you that
they have not met their burden and that you need to find my client
not guilty.”
In her rebuttal closing argument, the prosecutor reiterated it was the
People’s burden to prove the charges beyond a reasonable doubt and
asked the jury to look at the court’s instructions and the evidence to
do their job in deliberating.
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The trial court also provided the jury with written copies of the
instructions previously given. This packet of instructions also
included CALCRIM No. 220 on the presumption of innocence and
reasonable doubt, and CALCRIM No. 200 that the jury should
follow the trial court’s instructions over any conflicting statements
by the attorneys.
Analysis
“ ‘ “To preserve a claim of prosecutorial misconduct for appeal, a
defendant must make a timely and specific objection and ask the trial
court to admonish the jury to disregard the improper argument.” ‘ ”
(People v. Charles (2015) 61 Cal.4th 308, 327, quoting People v.
Linton (2013) 56 Cal.4th 1146, 1205.) Defendant’s trial attorney
failed to preserve the issues of prosecutorial misconduct by not
objecting or requesting the jury be admonished as to any claimed
instance of misconduct.
Recognizing the forfeiture problem, defendant argues his counsel
was ineffective for failing to object. “ ‘A defendant whose counsel
did not object at trial to alleged prosecutorial misconduct can argue
on appeal that counsel’s inaction violated the defendant’s
constitutional right to the effective assistance of counsel.’ ” (People
v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno).) To establish
ineffective assistance of counsel, defendant must show, by a
preponderance of the evidence, that “ ‘(1) counsel’s representation
fell below an objective standard of reasonableness under prevailing
professional norms, and (2) counsel’s deficient performance was
prejudicial, i.e., there is a reasonable probability that, but for
counsel’s failings, the result would have been more favorable to the
defendant.’ ” (People v. Johnson (2015) 60 Cal.4th 966, 980.)
In evaluating an ineffective assistance of counsel claim on appeal,
we presume, absent defendant’s contrary showing, that “ ‘ “counsel’s
performance fell within the wide range of professional competence
and that counsel’s actions and inactions can be explained as a matter
of sound trial strategy.” ’ [Citations.] When the record on direct
appeal sheds no light on why counsel failed to act in the manner
challenged, defendant must show that there was “ ‘no conceivable
tactical purpose’ ” for counsel’s act or omission. [Citations.]’ ‘[T]he
decision facing counsel in the midst of trial over whether to object to
comments made by the prosecutor in closing argument is a highly
tactical one’ ... [citations], and ‘a mere failure to object to evidence
or argument seldom establishes counsel’s incompetence.’
[Citation.]” (Centeno, supra, 60 Cal.4th at p. 675.)

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“A defendant is presumed innocent until proven guilty, and the
government has the burden to prove guilt, beyond a reasonable
doubt, as to each element of each charged offense. [Citations.]”
(People v. Booker (2011) 51 Cal.4th 141, 185 (Booker).) That
“presumption of innocence continues not only during the taking of
the testimony, but during the deliberations of the jury, and until they
reach a verdict.” (People v. Arlington (1900) 131 Cal. 231, 235.)

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It is misconduct to misinform the jury that the presumption of

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innocence is “gone” prior to the jury’s deliberations. (People v.
Cowan (2017) 8 Cal.App.5th 1152, 1159 (Cowan).) Defendant relies
on People v. Dowdell (2014) 227 Cal.App.4th 1388 (Dowdell)
and Cowan to support his claim that the prosecutor’s argument fell
afoul of this rule. In Dowdell, the prosecutor twice argued the
presumption of innocence had ended. The prosecutor initially argued
the evidence was overwhelming, defendant had a fair trial, the jury
had the evidence, and the presumption of innocence was over. The
prosecutor later argued it was “fairly obvious” the defendant had
committed the crimes he was accused of and again stated, “ ‘The
presumption of innocence is over.’ ” (Dowdell, at p. 1407.) The court
held this was prosecutorial misconduct as the statements, particularly
the second one, did not focus on the strength of the prosecution’s
evidence, but suggested the presumption of innocence was over
before jury deliberations had begun. (Id. at p. 1408.) In Cowan, the
prosecutor told the jury that “the presumption of innocence is in place
‘only when the charges are read’ and that the ‘presumption is gone’
thereafter.” (Cowan, supra, 8 Cal.App.5th at p. 1159.) The court
in Cowan held that arguing the presumption of innocence ended even
before evidence was presented at trial was an improper attempt by
the prosecutor to lighten the People’s burden of proof. (Id. at p.
1160.)
By contrast, a prosecutor does not misstate the law by arguing the
evidence presented at trial has rebutted the presumption of
innocence. (Booker, supra, 51 Cal.4th at p. 183; People v.
Panah (2005) 35 Cal.4th 395, 463 (Panah); People v.
Goldberg (1984) 161 Cal.App.3d 170, 189 (Goldberg).) In Booker,
the prosecutor argued, “The defendant was presumed innocent until
the contrary was shown. That presumption should have left many
days ago. He doesn’t stay presumed innocent.” (Booker, at p. 183.)
The prosecutor later argued, “the defendant starts out with the
presumption of innocence. That doesn’t stay. That isn’t an automatic
thing forever. That’s why we have a trial. Once the evidence
convinces you he is no longer innocent, that presumption vanishes.”
(Id. at p. 184.) The California Supreme Court held that these
arguments did not impermissibly misstate the prosecutor’s burden
but the arguments merely suggested the jury should convict based on
the evidence presented at trial. (Id. at p. 185.)
In Goldberg, the prosecutor argued, “And before this trial started,
you were told there is a presumption of innocence, and that is true,
but once the evidence is complete, once you’ve heard this case, once
the case has been proven to you—and that’s the stage we’re at now—
the case has been proved to you beyond any reasonable doubt. I
mean, it’s overwhelming. There is no more presumption of
innocence. Defendant Goldberg has been proven guilty by the
evidence.” (Goldberg, supra, 161 Cal.App.3d at p. 189.) The Court
of Appeal held these statements were merely a rhetorical restatement
of the law that a defendant is presumed innocent until the contrary is
proven. (Ibid.)
In Panah the prosecution argued the evidence had “stripped away”
defendant’s presumption of innocence. (Panah, supra, 35 Cal.4th at
p. 463.) The California Supreme Court held this argument was proper
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argument that in the prosecutor’s opinion, the evidence proved
defendant’s guilt and overcame the presumption of innocence. (Ibid.)
In People v. Romo (2016) 248 Cal.App.4th 682 (Romo), the
prosecutor argued, “As the evidence comes in—and the evidence has
come in—and when you walk into that jury room and discuss the
case—discuss the evidence in this case, once the evidence proved to
you beyond a reasonable doubt that [defendant] committed the crime,
there’s no presumption of innocence. It’s—it goes away as the
evidence comes in and the evidence shows you that he’s guilty. The
presumption of innocence doesn’t just stay there forever. [¶] The
evidence proves to you that he’s committed the crime and is guilty
beyond a reasonable doubt.” (Id. at pp. 690–691.) The court held,
like in Booker, supra, 51 Cal.4th 141 and Goldberg, supra 161
Cal.App.3d 170, this argument simply argued the jury should convict
based on the state of the evidence presented. (Romo, at p. 692.)
Defense counsel did not render constitutionally inadequate
representation by failing to object to the prosecutor’s remark on the
presumption of innocence. “[T]he prosecutor has a wide-ranging
right to discuss the case in closing argument. [S]he has the right to
fully state [her] views as to what the evidence shows and to urge
whatever conclusions [s]he deems proper.” (People v. Lewis (1990)
50 Cal.3d 262, 283.) The prosecutor’s argument here did reference
the presumption of innocence attaching at the start of the trial.
However, the argument also suggested the presumption’s “cloak” of
innocence had been removed by the prosecution’s evidence, the
victims’ testimony, and law enforcement authorities’ investigation.
The prosecutor did not argue the presumption ended with the reading
of the charges as occurred in Cowan, supra, 8 Cal.App.5th 1152; and
she did not argue the presumption was completely over as happened
in Dowdell, supra, 227 Cal.App.4th 1388. Considered in context, it
was not unreasonable for defense counsel to interpret this argument
as not all that different from those arguments found permissible
in Panah, Booker, Goldberg, and Romo. That is, not as an incorrect
statement of the law, but rather “merely a rhetorical statement about
the weight of the evidence of guilt.” (Panah, supra, 35 Cal.4th at p.
463.)
Defense counsel might not have objected because he reasonably
concluded the prosecutor’s statements regarding the presumption of
innocence and burden of proof were not improper. Unlike Centeno,
where our Supreme Court found defense counsel constitutionally
ineffective for failing to object because “the problems with the
prosecutor’s comments were not difficult to discern”
(Centeno, supra, 60 Cal.4th at p. 675), the purported impropriety of
the prosecutor’s statements is not so clear in this case.
Moreover, “[o]nce an otherwise properly-instructed jury is told that
the presumption of innocence obtains until guilt is proven, it is
obvious that the jury cannot find the defendant guilty until and unless
they, as the fact-finding body, conclude guilt was proven beyond a
reasonable doubt.” (Goldberg, supra, 161 Cal.App.3d at pp. 189–
190.) The prosecutor’s alleged misstatement of law was brief and
was countered by other correct statements of law at the beginning of
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her closing argument, as well as her statements to the jury regarding
the People’s burden of proof. Defense counsel also argued the People
had the burden of proof beyond a reasonable doubt. Before
argument, the trial court thoroughly and accurately instructed the
jury on the presumption of innocence and advised the jurors they
must follow the law as the trial court explained it, even if an
attorney’s comments conflicted and the court gave the jury written
instructions after argument.
Given the uncertainty that the prosecutor’s argument crossed the line
into an improper argument, and the numerous correct statements of
the law provided to the jury by the prosecutor, defense counsel, and
the trial court, it is not inconceivable or unreasonable that defense
counsel made a tactical decision to withhold his objection, preferring
instead to correct the impression the jurors may have drawn from the
prosecutor’s apparent misstatement in his own argument, rather than
drawing attention to the point by objecting. We cannot agree with
defendants either that there was “no conceivable tactical purpose” for
counsel’s silence during the prosecutor’s closing argument.
Accordingly, we conclude defense counsel’s lack of objection to the
prosecutor’s arguments concerning the presumption of innocence
and burden of proof fell well within the wide range of professional
competence that is deemed constitutionally effective. (People v.
Ledesma (2006) 39 Cal.4th 641, 746.)
(ECF No. 12-12 at 6-14.)
Although procedural issues are often addressed before the merits, they need not be. The

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Supreme Court in Lambrix v. Singletary, 520 U.S. 518 (1997) skipped over the procedural bar

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argument and proceeded to the merits. Id. at 525 (“Despite our puzzlement at the Court of

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Appeals’ failure to resolve this case on the basis of procedural bar, we hesitate to resolve it on

19

that basis ourselves.”); see also Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (stating

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that courts may “reach the merits of habeas petitions if they are, on their face and without regard

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to any facts that could be developed below, clearly not meritorious despite an asserted procedural

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bar.”). “Procedural bar issues are not infrequently more complex than the merits issues” and “it

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may well make sense in some instances to proceed to the merits if the result will be the same.”

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Franklin, 290 F.3d at 1232; see, e.g., Dean v. Schriro, 371 F. App’x 751 (9th Cir. 2010). Because

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this claim can be resolved on the merits, this Court declines to decide whether a procedural bar

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precludes petitioner from obtaining habeas relief.

27
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In reviewing the prosecutor’s alleged misconduct, “[t]he relevant question is whether the
prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a
14

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denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (Donnelly v.

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DeChristoforo, 416 U.S. 637, 643 (1974)); see also Parker v. Matthews, 567 U.S. 37, 45 (2012)

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(per curiam). It “is not enough that the prosecutors’ remarks were undesirable or even universally

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condemned.” Darden, 477 U.S. at 181 (citation omitted). “[A] court should not lightly infer that

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a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury,

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sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging

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interpretations.” Donnelly, 416 U.S. at 647. In making its determination, the court should

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consider the prosecutor’s comments in the context of the entire trial record. Hein v. Sullivan, 601

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F.3d 897, 912-13 (9th Cir. 2010). “[T]he Darden standard is a very general one,” and courts,

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therefore, have “‘more leeway . . . in reaching outcomes in case-by-case determinations.’”

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Parker, 567 U.S. at 48 (quoting Alvarado, 541 U.S. at 664). Even if there was prosecutorial

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misconduct, habeas relief is only warranted if petitioner can establish that the error “‘had

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substantial and injurious effect or influence in determining the jury’s verdict.’” Brecht v.

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Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted); see also Parle v. Runnels, 387 F.3d

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1030, 1044 (9th Cir. 2004).

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Here, the prosecutor made a statement during closing argument, which petitioner claims

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constituted prosecutorial misconduct in violation of his right to due process. Specifically, the

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prosecutor said

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The presumption of innocence is the cornerstone of our criminal
justice system. It applies to every criminal case in the entire United
States and it is an important one. But what I will remind you, now
that we’re getting at the end of this case, is that that presumption of
innocence doesn’t only protect innocent people. Guilty people are
presumed, at the start of the case, innocent, too. We have removed
that cloak. You get to see and determine for yourselves what lies
beneath that. He demanded a trial, like every person in the United
States does, and we gave him that. [The victims], and law
enforcement did their jobs. Now I’m asking you to do yours.
(ECF No. 12-5 at 307.)
The presumption of innocence is “axiomatic and elementary,” lying at the foundation of

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criminal law. Coffin v. United States, 156 U.S. 432, 453 (1895); see also Estelle v. Williams, 425

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U.S. 501, 503 (1976) (“The presumption of innocence, although not articulated in the
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Constitution, is a basic component of a fair trial under our system of criminal justice.”) “Once a

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defendant has been afforded a fair trial and convicted of the offense for which he was charged,

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the presumption of innocence disappears.” Herrera v. Collins, 506 U.S. 390, 399 (1993); see also

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Delo v. Lashley, 507 U.S. 272, 278 (1993); Ford v. Peery, 999 F.3d 1214, 1224-25 (9th Cir.

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2021).

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Here, the state court’s rejection of petitioner’s prosecutorial misconduct claim was not

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objectively unreasonable. After reviewing the record, this Court finds that the prosecutor’s

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comments did not make the trial so unfair as to constitute a denial of due process. The state court

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reasonably concluded that, although the prosecutor referenced the presumption of innocence

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attaching at the start of trial, the prosecutor also “suggested the presumption’s ‘cloak’ of

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innocence had been removed by the prosecution’s evidence, the victim’s testimony, and the law

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enforcement authorities’ investigation.” (ECF No. 12-12 at 12-13.) In doing, the prosecutor

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was referring to the weight of the evidence, emphasizing that it was up to the jury “to see and

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determine for yourselves what lies beneath that [presumption of innocence cloak].” (ECF No.

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12-5 at 307.)

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Even if the prosecutor briefly misstated the law, the improper statements did not have a

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substantial and injurious effect on the jury’s verdict. During closing arguments, both the

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prosecutor and defense attorney correctly stated that petitioner is presumed innocent until he is

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proven guilty beyond a reasonable doubt. (ECF No. 12-5 at 289; see also id. at 303; ECF No. 12-

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6 at 13, 21.) The trial court also instructed the jury that “[i]f you believe the attorney’s comments

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on the law conflict with my instructions, you must follow my instructions.” (ECF No. 12-1 at

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264 (CALCRIM No. 200)); Weeks v. Angelone, 528 U.S. 225, 234 (2000) (courts presume that

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juries follow the court’s instructions). Additionally, the court adequately instructed the jury on

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CALCRIM No. 220. (Id. at 267 (“A defendant in a criminal case is presumed to be innocent.

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This presumption requires that the People prove a defendant guilty beyond a reasonable

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doubt…Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled

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to an acquittal and you must find him not guilty.”))

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Lastly, petitioner contends that his trial counsel was ineffective for failing to object to the
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prosecutor’s misconduct. To state an ineffective assistance of counsel claim, a defendant must

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show that (1) his counsel’s performance was deficient, falling below an objective standard of

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reasonableness, and (2) his counsel’s deficient performance prejudiced the defense. Strickland v.

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Washington, 466 U.S. 668, 687-88 (1984). “The standards created by Strickland and § 2254(d)

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are both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Richter,

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562 U.S. at 105 (internal citations omitted); see also Landrigan, 550 U.S. at 473. When § 2254(d)

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applies, the “question is whether there is any reasonable argument that counsel satisfied

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Strickland’s deferential standard.” Richter, 562 U.S. at 105. Because this court concludes that

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the prosecutor did not commit an error, the state court reasonably concluded that defense counsel

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was not ineffective for failing to object to the statements.
The state court’s decision was not contrary to, or an unreasonable application of, clearly
established Supreme Court authority, and this Court recommends denying relief on this claim.

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B. Denial of Severance (Claim Two)

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Petitioner claims that the trial court violated his right to due process by denying his

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motion to sever counts 12 and 13 from the remaining counts. (ECF No. 1 at 52.) In response,

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respondent argues that the trial court’s denial of motion to sever does not implicate a clearly

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established right, and petitioner cannot demonstrate prejudice. (ECF No. 11 at 29-31.)

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Petitioner raised this claim on direct appeal, and the state appellate court denied his claim.

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Severance

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Defendant contends the trial court prejudicially erred by denying his
motion to sever the counts related to D. (counts 12 and 13) from the
counts related to Ke. and K. He argues the evidence in the cases was
not cross-admissible; the offenses against D. were remote and
dissimilar from the charges against the sisters; the charges as to D.
were likely to inflame the jury against defendant, as they involved
forcible sexual intercourse with defendant’s 12-year-old niece; and
two weak cases were joined with each other, creating a risk the jury
would improperly aggregate the evidence against defendant.

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“When, as here, the statutory requirements for joinder are met, a
defendant must make a clear showing of prejudice to establish that
the trial court abused its discretion in denying the defendant’s
severance motion. [Citations.] In determining whether there was an
abuse of discretion, we examine the record before the trial court at
the time of its ruling. [Citation.] The factors to be considered are
these: (1) the cross-admissibility of the evidence in separate trials;
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(2) whether some of the charges are likely to unusually inflame the
jury against the defendant; (3) whether a weak case has been joined
with a strong case or another weak case so that the total evidence
may alter the outcome of some or all of the charges; and (4) whether
one of the charges is a capital offense, or the joinder of the charges
converts the matter into a capital case. [Citation.]” (People v.
Mendoza (2000) 24 Cal.4th 130, 160–161.) “ ‘The state’s interest in
joinder gives the court broader discretion in ruling on a motion for
severance than it has in ruling on admissibility of evidence.’
[Citations.]” (Alcala v. Superior Court (2008) 43 Cal.4th 1205,
1221.) “The burden is on the defendant to establish that the
countervailing considerations of efficiency and judicial economy are
outweighed by a substantial danger of undue prejudice. [Citation.]”
(People v. Ybarra (2016) 245 Cal.App.4th 1420, 1433.)
“If the evidence underlying the joined charges would have been
cross-admissible at hypothetical separate trials, ‘that factor alone is
normally sufficient to dispel any suggestion of prejudice and to
justify a trial court’s refusal to sever properly joined
charges.’ [Citations.]” (People v. Merriman (2014) 60 Cal.4th 1,
38 (Merriman).) If the offenses are cross-admissible, then we may
affirm a court’s ruling denying a severance motion without
considering the remaining factors. (Id. at pp. 42–43.)
Here, the evidence underlying the charges related to D. were crossadmissible in the case related to Ke. and K. under Evidence Code
section 1108.2 The charges related to Ke. and K. were crossadmissible in the case related to D. because of the independent
corroboration requirement of Penal Code section 803, subdivision
(f).
[N.2 Undesignated statutory references are to the Evidence Code.]
Section 1108
Generally, evidence of prior criminal acts is inadmissible to prove
the defendant’s conduct on a specific occasion. (§ 1101, subd. (a);
see also People v. Cole (2004) 33 Cal.4th 1158, 1194.) In a criminal
action where the defendant is charged with a sexual offense,
however, evidence of the defendant’s commission of other sexual
offenses is admissible to prove the defendant’s propensity to commit
crimes of a sexual nature if such evidence is not inadmissible under
section 352. (§ 1108, subd. (a); People v. Christensen (2014) 229
Cal.App.4th 781, 795–796.)
Evidence of the defendant’s commission of other sexual offenses
should be excluded under section 352 “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.” (§ 352.) In making this section 352 assessment relative to
other sexual offenses, the trial court must weigh “ ‘such factors as its
nature, relevance, and possible remoteness, the degree of certainty of
its commission and the likelihood of confusing, misleading, or
distracting the jurors from their main inquiry, its similarity to the
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charged offense, its likely prejudicial impact on the jurors, the burden
on the defendant in defending against the uncharged offense, and the
availability of less prejudicial alternatives to its outright admission,
such as admitting some but not all of the defendant’s other sex
offenses, or excluding irrelevant though inflammatory details
surrounding the offense. [Citations.]’ [Citation.]” (People v.
Daveggio and Michaud (2018) 4 Cal.5th 790, 823–824.) With these
principles in mind, we conclude that evidence of defendant’s
commission of sexual assaults against D. would have been crossadmissible in separate trials of the charges for sexually molesting Ke.
and K.
Defendant contends the offenses against D. were too dissimilar to the
charged crimes against Ke. and K. to be admissible. “ ‘ “[T]he
charged and uncharged crimes need not be sufficiently similar that
evidence of the latter would be admissible under ... section 1101,
otherwise ... section 1108 would serve no purpose. It is enough the
charged and uncharged offenses are sex offenses as defined
in section 1108.” ‘ [Citation.]” (People v. Cordova (2015) 62 Cal.4th
104, 133.) Moreover, there were significant similarities between the
offenses. All of the girls were under 13 years of age when defendant
first sexually molested them. All of the incidents involved defendant
molesting a child who was defenseless and particularly vulnerable to
his conduct because he was the only adult with them. As a result of
his established relationships of trust and familiarity with the victims’
family members, he had access to each of the victims in the privacy
of a family member’s home. At times he had access to the victims as
a result of babysitting arrangements. He introduced the subject of sex
and sexual conduct with the victims. He used sexual paraphernalia or
pornography and vibrators with the victims. And the assaults and
molestations occurred over the course of years. “These similarities
permitted the inference that defendant had a propensity to commit
such sex offenses, including the charged crimes. [Citation.]” (Id. at
pp. 133-134.) “ ‘This circumstance brings the evidence precisely
within the primary purpose behind ... section 1108.’ [Citation.]”
(Ibid.)
Nor are we persuaded by defendant’s claim that the prior sexual
offenses against D. were too remote. “ ‘No specific time limits have
been established for determining when an uncharged offense is so
remote as to be inadmissible.’ [Citation.] ‘ “[S]ubstantial similarities
between the prior and the charged offenses balance out the
remoteness of the prior offenses. [Citation.]” [Citation.]’ ” (People v.
Robertson (2012) 208 Cal.App.4th 965, 992.) “Numerous cases have
upheld admission pursuant to ... section 1108 of prior sexual crimes
that occurred decades before the current offenses.” (Id. at p. 992 [no
error in admitting 34–year–old prior sexual assault conviction]; see
also People v. Pierce (2002) 104 Cal.App.4th 893, 900 [sex crime
committed 23 years before current crime was admissible]; People v.
Branch (2001) 91 Cal.App.4th 274, 284 (Branch) [upholding
admission of a sex crime committed 30 years before charged
offense]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [“20
years is not too remote” under section 1108].) “Defendant does not
point to any evidence that his character changed over the relevant
time period or offer any reason that such a change might have
19

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occurred.” (People v. Cordova, supra, 62 Cal.4th at p. 133.)

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We also reject defendant’s claim the evidence was unduly prejudicial
under section 352. The evidence was harmful to defendant, but it was
not prejudicial in the sense it would confuse the jury or cause it to
decide the case on an improper basis. (See People v. Walker (2006)
139 Cal.App.4th 782, 806.) Although the incidents involving D. were
more aggravated than those involving Ke. and K., the incidents
involving Ke. and K. were not insignificant, and involved repeated
molestations that continued over the course of years. It is not likely
that cross-admitting the evidence would have confused, misled, or
distracted the jury. The evidence relating to both sets of charges was
straightforward. Each of the girls was able to clearly, simply, and
succinctly describe the nature of defendant’s assaults. The salient
facts establishing the assault in each of those incidents were
presented by a single witness.

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Corroboration under Penal Code Section 803
In addition, the evidence related to Ke. and K. was admissible in the
case related to D. as independent corroborating evidence. The
offenses against D. were committed beyond the period of the statute
of limitations. However, Penal Code section 803, subdivision (f),
permits the charging of certain sexual offenses after the expiration of
the statute of limitations if specific conditions are pled and proven,
including if “there is independent evidence that clearly and
convincingly corroborates the victim’s allegation.” (Pen. Code, §
803, subd. (f)(2)(C).) Here, the prosecution alleged in the
information that this independent corroboration requirement was met
by the acts committed against Ke. and K., as well as defendant’s prior
conviction for sexual abuse against D.
Evidence of uncharged acts against other victims is admissible to
corroborate a victim’s allegation of sexual abuse under Penal Code
section 803, subdivision (f). (People v. Yovanov (1999) 69
Cal.App.4th 392; People v. Ruiloba (2005) 131 Cal.App.4th 674,
682.) This corroboration may be established “solely with evidence of
a similar offense committed against an uncharged victim.” (People
v. Mabini (2001) 92 Cal.App.4th 654, 659.) As delineated, ante, the
offenses as against Ke. and K. were sufficiently similar to those
committed against D. to make them admissible to establish the
independent corroboration requirement of Penal Code section 803,
subdivision (f). All of these crimes were sex offenses committed
against young girls of similar age at one of their relative’s homes.
Accordingly, the evidence of acts against Ke. and K. was crossadmissible to establish the charges committed against D.
Evidence of the sexual assaults from the two groups of charges would
have been cross-admissible in separate trials. Because the evidence
underlying the charges related to D. was cross-admissible in the case
related to Ke. and K. under section 1108 and the charges related to
Ke. and K. were cross-admissible in the case related to D. under the
corroboration requirement of Penal Code section 803, subdivision
(f), the trial court did not abuse its discretion in denying defendant’s
motion to sever. (Merriman, supra, 60 Cal.4th at pp. 42-43.)
20

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(ECF No. 12-12 at 14-19.)

2

There is no clearly established federal law stating that joinder or consolidation of charges

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may violate the Constitution. To determine clearly established federal law, this Court must look

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to the “holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the

5

relevant state-court decision.” Williams, 529 U.S. at 412. In United States v. Lane, 474 U.S.

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438, 446 n.8 (1986), the Supreme Court stated in a footnote that “[i]mproper joinder does not, in

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itself, violate the Constitution. Rather, misjoinder would rise to the level of a constitutional

8

violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right

9

to a fair trial.” The Ninth Circuit has held, however, that the footnote in Lane was dicta and does

10

not provide a basis for granting habeas relief. See Collins v. Runnels, 603 F.3d 1127, 1132 (9th

11

Cir. 2010) (“The footnote upon which [petitioner] relies did not set forth the governing legal

12

principle in Lane. It was merely a comment.”); Young v. Pliler, 273 F. App’x 670, 672 n.1 (9th

13

Cir. 2008). Because there is no clearly established federal law in this instance, this Court cannot

14

grant habeas relief on this claim. See Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (absent

15

a Supreme Court decision squarely addressing the issue, the federal habeas court must defer to the

16

state court’s decision).

17

Even if this Court assumes that the Lane footnote could be considered clearly established

18

federal law, no constitutional violation occurred because any prejudice was not enough to deny

19

petitioner his right to a fair trial. Lane, 474 U.S. at 446, n.8. As noted by the California Court of

20

Appeal, the evidence underlying the charges related to D. was cross-admissible in the cases

21

related to Ke. and K under section 1108 and Penal Code section 803. After reviewing the record,

22

this Court also agrees with the state appellate court that the evidence relating to D was not too

23

dissimilar or remote from or a weaker case than the evidence relating to Ke. and K, as petitioner

24

contends. The trial court mitigated the risk that the jury would aggregate all the evidence by

25

separately instructing the jury on each count. (ECF No. 12-1 at 280-83, 285-86, 288-89.)

26

Petitioner has failed to show that the denial of his motion to sever the trial had a substantial or

27

injurious effect on the jury’s verdict.

28

For the above reasons, the state court’s decision was not contrary to, or an unreasonable
21

1

application of, clearly established Supreme Court authority, and this Court recommends denying

2

habeas relief on claim two.

3

C. Admission of Prior Sexual Offenses (Claim Three)

4

Next, petitioner claims that the trial court prejudicially erred by allowing the prosecution

5

to present evidence of uncharged sexual offenses he committed in New York in violation of his

6

due process rights. (ECF No. 1 at 60; see also id. at 63 (“Even though the evidence of

7

[petitioner’s] prior offenses committed against [D] in New York met the threshold requirements

8

for admissibility under Evidence Code section 1108, this evidence was so unduly prejudicial and

9

had such a severe risk of confusing the issues and misleading the jury that it was error to allow

10

the prosecution to present this evidence.”) In response, respondent argues that there is no clearly

11

established right barring the admission of propensity evidence, and that petitioner cannot

12

demonstrate prejudice. (ECF No. 11 at 31.)
In the last reasoned state court opinion, the state appellate court rejected petitioner’s

13
14

claim.

15

Admission of Uncharged New York Offenses under Section 1108

16

21

Defendant contends the trial court prejudicially erred in allowing
admission of his sexual offenses against D. committed in New York,
including his 1994 conviction for sexual abuse of D., and violated his
federal constitutional rights by admitting evidence of uncharged
offenses. He argues although the evidence met the threshold
admissibility requirements under section 1108, the evidence was
unduly prejudicial and thus, had a severe risk of confusing the issues
and misleading the jury. He claims the New York offenses were
much more inflammatory than the other offenses, given that they
involved sexual intercourse with a biological relative, were remote
in time, and were dissimilar to the charged offenses.

22

Background

23

The prosecution moved in limine to admit defendant’s 1994 prior
conviction from New York, as well as D.’s testimony that: (1)
defendant had sex with her in June of 1993, the act that led to the
New York conviction; (2) defendant had sex when she was 13 or 14
years old, when they were in New York four wheeling near her home;
and (3) defendant would have sex with her when she would stay at
his home. Defense counsel objected to this evidence being admitted.

17
18
19
20

24
25
26
27
28

Following argument, the trial court ruled: “All right. So the Court
feels – I am going to permit the prosecution to introduce evidence
from [D.] of what happened in 1993 and also what happened in 1990.
22

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5
6
7
8
9
10
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13
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I think it’s relevant under 1108 for propensity evidence. I think the
fact that [D.] was approximately the same age as [Ke.] and [K.], I
think is similarity. So I believe under 352 it has relevance for
propensity. And so accordingly, I’m going to – having weighed and
considered under 352, I am going to permit the People to have her
testify.
“I further am going to permit the People to introduce [the certified
conviction] as evidence. However, I am going to ask the People,
unless it’s relevant for some other purpose, to redact all the charges
he was indicted for. I understand the People are worried that the
jurors may feel that has some bearing on her credibility, but the fact
is that the relevance of this [conviction] is that he was convicted of
that particular offense.”
Analysis
Much of the analysis and legal standards for admitting evidence
under section 1108 are detailed ante. “Like any ruling under section
352, the trial court’s ruling admitting evidence under section 1108 is
subject to review for abuse of discretion.” (People v. Story (2009) 45
Cal.4th 1282, 1295.)
Under section 1108, “prior sexual offense is indisputably relevant in
a prosecution for another sexual offense.” (Branch, supra, 91
Cal.App.4th at p. 282.) The probative value, “ ‘in a given case will
depend on innumerable considerations, including the similarity of the
prior acts to the acts charged [citation], the closeness in time of the
prior acts to the charged acts [citation], the frequency of the prior
acts, the presence or lack of intervening events [citation], and the
need for evidence beyond the testimony of the defendant and alleged
victim.’ [Citation.]” (People v. Soto (1998) 64 Cal.App.4th 966,
989–990.)
The evidence of the uncharged offenses was highly probative in that
it tended to show defendant is predisposed to engage in the charged
conduct and had a sexual attraction to young girls. (People v.
Holford (2012) 203 Cal.App.4th 155, 185-186.)

27

The uncharged acts in New York and the conviction involved
repeated incidents of defendant having sex with D. when she was
between the ages of 12 and 16. The charged offenses here were
forcible rape of D. when she was 12 years old, and numerous acts of
lewd and lascivious conduct against Ke. and K., when they were
between 8 and 13 years old. That lewd and lascivious conduct
included grabbing their breasts, touching their genitals with his
fingers, using a vibrator with each of them, and positioning K. with
her vagina in front of the pool jet stream. Thus, in the charged and
uncharged offenses, the victims were all young females, in
approximately the same age range when defendant molested them.
In the charged and uncharged offenses, defendant took advantage of
his relationships with family members of the victims to gain access
to them when no other adult was present.

28

The charged offense against D. occurred in 1990 and the uncharged

21
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23
24
25
26

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2
3
4
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6
7
8
9
10
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13
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offenses occurred in between then and 1993. As to D., the uncharged
offenses are not remote in time to the charged offenses. And,
although the charged offenses against Ke. and K. occurred many
years after the uncharged offenses that occurred between
approximately 2005 and 2009, as discussed ante, 25 years between
sexual offenses is not too remote.
Nor are the uncharged offenses unduly prejudicial. The charged and
uncharged offenses against D. all involved defendant having sexual
intercourse with D. The uncharged rapes in New York in 1990 were
not more inflammatory than the charged rape. In addition, the fact
defendant was convicted of forcibly sexually abusing D. in New
York reduced its prejudicial effect, as it eliminated the risk the jury
would seek to punish defendant for that crime in this proceeding, the
jury could confuse the issues, or the matter would require a “minitrial.” (People v. Loy (2011) 52 Cal.4th 46, 61.) And, as above, the
evidence related to the uncharged offenses was straightforward and
presented with the testimony of D. and the certified copy of
conviction. The similarities between the uncharged and charged
offenses balances out the remoteness. (Branch, supra, 91
Cal.App.4th at p. 285.)
Defendant “has failed to carry his burden of rebutting the strong
presumption of admissibility of the sexual assault crimes evidence
under ... section 1108.” (Merriman, supra, 60 Cal.4th at p. 42.) The
admission of evidence of the uncharged offenses against D. and the
conviction for forcible sexual abuse against D. was not an abuse of
discretion. (People v. Holford, supra, 203 Cal.App.4th at p. 186.)
Because the probative value of this evidence was not substantially
outweighed by the danger of undue prejudice, or any other statutory
counterweight contained in section 352, we also conclude admission
of the evidence did not violate defendant’s federal constitutional
rights. (Holford, at p. 180; Branch, supra, 91 Cal.App.4th at pp. 283284.)
(ECF No. 12-12 at 19-23.)
Petitioner argues that the state court erred in admitting evidence of his prior charged and

21

uncharged sexual assault crimes against D. in New York under Evidence Code sections 1108 and

22

352. This issue is a matter of state law and is not cognizable on habeas review. See Estelle, 502

23

U.S. at 67-68; Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009); see also Horton v.

24

Mayle, 408 F.3d 570, 576 (9th Cir. 2005). Errors of state law do not warrant federal habeas

25

relief. See Estelle, 502 U.S. at 67-68; Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995). The

26

erroneous admission of evidence is grounds for federal habeas corpus relief only if it made the

27

state proceedings so fundamentally unfair as to violate due process. See Jammal v. Van de

28

Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991).
24

1

Assuming the claim is cognizable, “[u]nder AEDPA, even clearly erroneous admissions of

2

evidence that render a trial fundamentally unfair may not permit the grant of federal habeas

3

corpus relief if not forbidden by ‘clearly established Federal law,’ as laid out by the Supreme

4

Court.” Holley, 568 F.3d at 1101; see also Walden v. Shinn, 990 F.3d 1183, 1204 (9th Cir.

5

2021); Nava v. Diaz, 816 F. App’x 192, 193 (9th Cir. 2020). Because the Supreme Court has not

6

clearly decided whether the admission of propensity evidence constitutes a due process violation

7

sufficient to warrant habeas relief, this Court cannot conclude that the state court’s ruling was

8

contrary to, or an unreasonable application of, clearly established federal law. See Wright v. Van

9

Patten, 552 U.S. 120, 126 (2008) (per curiam); Jennings v. Runnels, 493 F. App’x 903, 906 (9th

10

Cir. 2012); Alberni v. McDaniel, 458 F.3d 860, 866 (9th Cir. 2006); Bradford v. Paramo, No.

11

2:17-cv-05756 JAK JC, 2020 WL 7633915, at *6-7 (C.D. Cal. Nov. 12, 2020) (citing cases),

12

adopting report and recommendation, 2020 WL 7631441 (C.D. Cal. Dec. 22, 2020).

13

Lastly, petitioner cannot demonstrate that admission of this evidence had a “substantial

14

and injurious effect” on the verdict. Brecht, 507 U.S. at 637. Petitioner’s prior conviction and

15

other acts of forcible sex with D in New York are similar to the charged crime for forcible sex of

16

D in California. (Compare ECF No. 12-4 at 181-93 with id. at 200-09.) To the extent petitioner

17

is concerned that his New York acts allowed the jury to infer propensity to commit the charged

18

crime, the trial court instructed the jury on how it could consider this evidence. (ECF No. 12-1 at

19

285-86.); Weeks, 528 U.S. at 234 (a jury is presumed to follow its instructions). Petitioner has

20

not provided any reason for this Court to reject that presumption here.

21

For the reasons stated above, the state court’s decision was not contrary to, or an

22

unreasonable application of, clearly established Supreme Court authority. Accordingly, this

23

Court recommends denying habeas relief on this claim.

24

D. Insufficient Evidence (Claim Five)

25

Petitioner claims there is insufficient evidence to support his conviction for count one.

26

(ECF No. 1 at 72-78.) Although the victim testified that he swam up to her under water, moved

27

her bathing suit with his finger, and looked at her vagina, petitioner asserts that this is insufficient

28

to show that he made physical contact with her body. (Id. at 72.) In response, respondent argues
25

1

it was reasonable for the state court to reject the claim that insufficient evidence supported

2

petitioner’s conviction on count one. (ECF No. 11 at 34.)

3
4

In the last reasoned opinion, the state appellate court denied petitioner’s claim on direct
review.

5

Sufficiency of the Evidence

6

Defendant contends there is insufficient evidence to support the
conviction for lewd and lascivious conduct based on him moving the
bottom of K.’s bathing suit to look at her vagina.3 He claims there is
not sufficient evidence he “actually made contact with K.’s body
during this incident,” therefore the conviction must be reversed.

7
8
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20
21
22
23
24
25
26
27
28

[N.3 Two incidents were charged in the pool relating to K., moving
her bathing suit and placing her against the water jet. The parties
agree the bathing suit incident is most likely count one. Irrespective
of which count is challenged, the substantive issue on appeal, and
corresponding analysis, remain the same.]
“ ‘To determine the sufficiency of the evidence to support a
conviction, an appellate court reviews the entire record in the light
most favorable to the prosecution to determine whether it contains
evidence that is reasonable, credible, and of solid value, from which
a rational trier of fact could find the defendant guilty beyond a
reasonable doubt.’ [Citations.]” (People v. Wallace (2008) 44
Cal.4th 1032, 1077.) “ ‘Circumstantial evidence may be sufficient to
connect a defendant with the crime and to prove his [or her] guilt
beyond a reasonable doubt.’ [Citation.]” (People v. Bean (1988) 46
Cal.3d 919, 932–933.) “[U]nless the testimony is physically
impossible or inherently improbable, testimony of a single witness is
sufficient to support a conviction. [Citation.]” (People v.
Young (2005) 34 Cal.4th 1149, 1181.)
Penal Code section 288(a) has two elements: (a) the touching of an
underage child’s body (b) with a sexual intent. (People v.
Martinez (1995) 11 Cal.4th 434, 444.) “However, the form, manner,
or nature of the offending act is not otherwise restricted. Conviction
under the statute has never depended upon contact with the bare skin
or ‘private parts’ of the defendant or the victim.” (Ibid.) That is, “a
lewd or lascivious act can occur through the victim’s clothing and
can involve ‘any part’ of the victim’s body.” (Ibid.) Any touching of
an underage child committed for purpose of sexual arousal is “lewd
or lascivious,” and satisfies the statutory requirement. (Id. at pp. 444446, 452.)
K. testified that while she was swimming in the pool, wearing a twopiece bathing suit, defendant swam under water and moved her
bathing suit bottom to look at her vagina. She testified, “I could feel
him hook his finger under the – under the band of my bathing suit
and move it over.”
It was reasonable for the jury to infer from K.’s testimony that
26

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2
3
4
5
6
7
8
9

defendant touched her. Bathing suits fit close to the skin, with
elasticized bands to keep them in place. When wet, as this one would
have been because K. was in the pool at the time, they cling to the
body. K. felt defendant hook his finger under the band of the suit and
move it to expose her vagina to him. Defendant testified he had large
hands, too large to fit under K.’s T-shirt. It was reasonable for the
jury to infer that defendant, particularly with his large hands, could
not have moved K.’s bathing suit bottom without simultaneously
touching her. K.’s testimony and the reasonable inferences therefrom
are sufficient evidence to support the conviction.
(ECF No. 12-12 at 23-24.)
A petitioner is entitled to habeas corpus relief on a sufficiency of the evidence claim “if it
is found that upon the record evidence adduced at the trial no rational trier of fact could have

10

found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979);

11

see also Ngo v. Giurbino, 651 F.3d 1112, 1115 (9th Cir. 2011). This inquiry involves two steps.

12

First, the federal court must review the evidence in the light most favorable to the prosecution.

13

Jackson, 443 U.S. at 319. If there are conflicting factual inferences, the federal court must

14

presume the jury resolved the conflicts in favor of the prosecution. Id. at 326 (“[A] federal

15

habeas corpus court faced with a record of historical facts that supports conflicting inferences

16

must presume—even if it does not affirmatively appear in the record—that the trier of fact

17

resolved any such conflicts in favor of the prosecution, and must defer to that resolution.”);

18

McDaniel v. Brown, 558 U.S. 120, 133 (2010) (per curiam). Second, the federal court will

19

“determine whether the evidence at trial, including any evidence of innocence, could allow any

20

rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.”

21

United States v. Nevils, 598 F.3d 1158, 1165 (9th Cir. 2010) (en banc).

22

Although this Court’s review is grounded in due process under the Fourteenth

23

Amendment, the Jackson standard “must be applied with explicit reference to the substantive

24

elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16; Juan H.

25

v. Allen, 408 F.3d 1262, 1275-76 (9th Cir. 2005). This Court will look to state law to establish

26

the elements of the offense and then turn to the federal question of whether the state court was

27

objectively unreasonable in concluding that sufficient evidence supported that conviction. See

28

Johnson v. Montgomery, 899 F.3d 1052, 1056 (9th Cir. 2018).
27

1

“After AEDPA, we apply the standards of Jackson with an additional layer of deference.”

2

Juan H., 408 F.3d at 1274; see Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam). On

3

direct appeal at the state level, “it is the responsibility of the jury—not the court—to decide what

4

conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the

5

jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have

6

agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam). On habeas review,

7

“a federal court may not overturn a state court decision rejecting a sufficiency of the evidence

8

challenge simply because the federal court disagrees with the state court. The federal court

9

instead may do so only if the state court decision was ‘objectively unreasonable.’” Id. (quoting

10
11

Renico v. Lett, 559 U.S. 766, 773 (2010)).
In count one, petitioner was convicted under California Penal Code section 288, which is

12

violated by “‘any touching’ of an underage child accomplished with the intent of arousing the

13

sexual desires of either the perpetrator or the child.” People v. Martinez, 11 Cal. 4th 434, 452

14

(1995). “[T]he form, manner, or nature of the offending act is not otherwise restricted.

15

Conviction under the statute has never depended upon contact with bare skin or ‘private parts’ of

16

the defendant or the victim.” Id. at 444.

17

The state court’s finding that there was sufficient evidence to support the conviction was

18

not objectively unreasonable. The victim testified that while swimming in a pool with petitioner,

19

he wore goggles, told her to come over, and then went under water and “moved my bathing suit

20

bottoms to look at my vagina in the water.” (ECF No. 12-5 at 12; see also id. at 43 (“I could feel

21

what he was doing.”)) She “could feel him hook his finger under the … band of my bathing suit

22

and move it over.” (Id. at 13.) Petitioner was about 18 inches away from her when this occurred.

23

(Id. at 14.) As the state court noted, bathing suits cling to wet skin, and the victim felt petitioner

24

hook his finger under the band of her bathing suit to look at her private parts. Based on this

25

evidence, a rationale trier of fact could infer that petitioner touched the victim. This reasonable

26

inference is bolstered by her testimony that he touched her on other occasions. (See, e.g., id. at

27

46 (his hand would linger on her bottom when he threw her into the pool); id. at 46-48 (when she

28

was playing video games, he came up behind her, rubbed her arms and back, and looked down
28

1

her shirt); id. at 48 (while playing hide and seek, petitioner toucher her back with a massager).)

2

Petitioner’s claim that it is also possible that he did not touch her when he moved her bathing suit

3

runs afoul with the Jackson standard, which requires this Court to review the evidence in the light

4

most favorable to the prosecution. Jackson, 443 U.S. at 319.

5

For all of the above reasons, the state court’s decision was not contrary to, or an

6

unreasonable application of, clearly established Supreme Court authority. Therefore, this Court

7

recommends denying habeas relief on this claim.

8

E. New Trial Motion (Claims Six and Eight)

9

In claim six, petitioner argues that the trial court erred when it did not hear and rule on

10

defendant’s motion for a new trial based on the errors in the verdict forms while he was

11

represented by counsel. (ECF No. 1 at 79-82.) In claim eight, he claims that his defense counsel

12

was ineffective for failing to file a new trial motion. (Id. at 87-88.) Respondent contends that

13

petitioner’s claim six fails because he had no federal constitutional right to make a new trial

14

motion or to file his own motion when represented by counsel. (ECF No. 11 at 37-40.) As to his

15

ineffective assistance of counsel claim, respondent argues that the state court reasonably rejected

16

the claim because defense counsel had strategic reasons for not raising the motion, and petitioner

17

was not prejudiced by defense counsel’s actions. (Id.)
Petitioner raised these claims in a state habeas petition in the Placer County Superior

18
19

Court. (ECF No. 12-15.) The superior court considered his claims and rejected them. (ECF No.

20

12-17.)

21

26

On September 9, 2020, Mr. Morse filed a habeas petition alleging in
part that the trial court denied his due process rights by failing to hear
his motion for a new trial. As he describes in his petition, this issue
was extensively discussed on the record at the time of sentencing.
(Reporter’s Transcript of Sentencing, dated December 4, 2017, pp.
5-11.) Petitioner also alleges ineffective assistance of his trial
counsel (IAC) for his failure to file a new trial motion. As stated on
the record at sentencing, the petitioner’s attorney did not believe a
motion for a new trial warranted, and also believed he had tactical
reasons for not advancing the motion so that he could argue for
concurrent sentencing.1

27

[N.1 The court in fact ran Counts 8-10 concurrent.]

28

With respect to the grounds for relief related to the failure to bring a
29

22
23
24
25

1

new trial motion, the court denies the petition for habeas relief
because he failed to raise these issues on appeal. Generally, habeas
relief is not appropriate for issues raised and rejected on appeal, or
those that could have been raised by were not. (In re Waltreus (1965)
62 Cal.2d 218; In re Dixon (1953) 41 Cal.2d 756.)

2
3
4

(Id.) He also raised this claim in habeas petitions before the California Court of Appeals and

5

California Supreme Court, but both courts denied the claims. (ECF Nos. 12-18 to 21-21.)

6

Because these claims can be resolved on the merits, this Court declines to reach the procedural

7

issues.

8
9

i.

Motion for New Trial (Claim Six)

Petitioner argues that the trial judge’s refusal to consider his pro se motion for a new trial

10

violated his due process rights. This claim fails for several reasons. First, a motion for a new

11

trial in a criminal case is a statutory right in California. See People v. Dillard, 168 Cal. App. 2d

12

158, 167 (1959) (“It is well established in this state that a motion for new trial in a criminal case

13

is a statutory right and may be made only on the grounds enumerated in section 1181 of the Penal

14

Code, exclusive of all others.”) Such alleged errors of state law are not cognizable on federal

15

habeas review. See Borges v. Warden, 656 F. App’x 303, 304 (9th Cir. 2016). Merely claiming

16

that this state law error amounts to a due process violation cannot transform a state claim into a

17

federal one. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). Second, although due

18

process requires a meaningful opportunity to be heard, see Mathews v. Eldridge, 424 U.S. 319,

19

333 (1976), the Supreme Court has not recognized a right to be heard on a new trial motion. See

20

Stillman v. Lamarque, 178 F. App’x. 647, 650 (9th Cir. 2006) (citing cases). The state court’s

21

finding that the trial court did not err in refusing to consider the motion was, therefore, neither

22

contrary to, nor an unreasonable application of, clearly established federal law.

23

Third, petitioner was represented by counsel and does not have a constitutional right to

24

present arguments that his counsel decided not to pursue. See Jones v. Barnes, 463 U.S. 745, 751

25

(1983) (Defendant does not have “a constitutional right to compel appointed counsel to press

26

nonfrivolous points requested by the client, if counsel, as a matter of professional judgment,

27

decides not to present those points.”) Although the choice to be represented by counsel is “not all

28
30

1

or nothing,” trial management— including arguments to pursue, evidentiary objections, and

2

agreements regarding admissibility of evidence—is the province of counsel. McCoy v. Louisiana,

3

138 S. Ct. 1500, 1508 (2018); see also McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) (“A

4

defendant does not have a constitutional right to choreograph special appearances by counsel.”);

5

Pizzuto v. Arave, 280 F.3d 949, 968 (9th Cir. 2002). Although petitioner cites Faretta v.

6

California, 422 U.S. 806, 819-20 (1975), to support his argument, there is no evidence that

7

petitioner did not acquiesce to being represented by his counsel at his trial or that he requested

8

replacement of counsel. Defense counsel, therefore, acted within his limits when he declined to

9

make the requested motion.

10

ii.

11

Ineffective Assistance of Counsel for Failing to File and Argue a New Trial
Motion (Claim Eight)

12

Next, petitioner claims that his counsel was ineffective for failing to file a new trial

13

motion. To state an ineffective assistance of counsel claim, a defendant must show that his

14

counsel’s performance was deficient and prejudiced him. Strickland, 466 U.S. at 687. For the

15

deficiency prong, “a court must indulge a strong presumption that counsel’s conduct falls within

16

the wide range of reasonable professional assistance; that is, the defendant must overcome the

17

presumption that, under the circumstances, the challenged action ‘might be considered sound trial

18

strategy.’” Id. at 689 (citation omitted). For the prejudice prong, the defendant “must show that

19

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

20

proceeding would have been different. A reasonable probability is a probability sufficient to

21

undermine confidence in the outcome.” Id. at 694. When § 2254(d) applies, the “question is

22

whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.”

23

Richter, 562 U.S. at 105.

24

Here, the state court could have reasonably concluded that defense counsel’s refusal to

25

make a new trial motion was neither deficient nor prejudicial. Defense counsel considered

26

making the motion and choose not to as part of his sentencing strategy. Specifically, the

27

prosecutor identified the error in the verdict forms after the jury announced the verdict, and

28

defense counsel argued that the Information is “sufficient to address any issues that may have
31

1

arisen because of that inconsistency between the Information and the verdict forms.” (ECF No.

2

12-6 at 45-46.) At sentencing, defense counsel told the court that his client wanted him to make a

3

motion for a new trial after the trial. (Id. at 54.) Defense counsel, however, decided not to make

4

that motion, stating that “the inconsistencies in the verdict forms put my client in a better position

5

with regard to arguing for concurrent versus consecutive” indeterminate terms. He also stated

6

that “there are no colorable grounds for a motion for a new trial,” he would not be filing

7

petitioner’s motion, and sentencing should proceed. (Id. at 54-61; see also ECF No. 12-2 at 61

8

(petitioner’s letter to the court asking for a new trial.)) Because his decision not to file the motion

9

was based on tactical reasons and the motion would have been futile, the state court could have

10

reasonably concluded that defense counsel’s performance was not deficient. See Rupe v. Wood,

11

93 F.3d 1434, 1445 (9th Cir. 1996); Boatman v. Beard, No. ED CV 15-02271, 2017 WL

12

3888225, at *23 (C.D. Cal. June 19, 2017), adopting report and recommendation, 2017 WL

13

3887851 (C.D. Cal. Sept. 1, 2017). Even if defense counsel’s performance was deficient, the

14

state court could have reasonably concluded that his performance was not prejudicial. As the

15

state court noted, the sentences for counts 8 to 10 ran concurrently, which is consistent with

16

defense counsel’s strategy behind not moving for a new trial.

17

The state court’s decision was not contrary to, or an unreasonable application of, clearly

18

established Supreme Court authority. Accordingly, this Court recommends denying habeas relief

19

on claims six and eight.

20

F. Ineffective Assistance of Counsel Regarding Witnesses and Evidence (Claim Seven)

21

Petitioner claims that defense counsel was constitutionally ineffective by failing to call

22

witnesses and present exculpatory evidence. (ECF No. 1 at 82-86.) Specifically, petitioner

23

contends that his counsel should have called (1) Anthony Morse, (2) David Duncan, (3) Elizabeth

24

Jackson, and (4) a defense expert witness.

25

In response, respondent argues petitioner fails to offer any evidence as to what these

26

witnesses would have testified to, or that they were available to testify during trial. (ECF No. 11

27

at 41.) Additionally, respondent states that defense counsel was not deficient in not calling the

28

witnesses, nor was his performance prejudicial. (Id.)
32

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Petitioner raised these claims in a state habeas petition in the Placer County Superior
Court. (ECF No. 12-15.) The superior court considered his claim and rejected it.
The petitioner further seeks habeas relief claiming IAC for his trial
counsel’s failure to call witnesses and his failure to present
exculpatory statements of these witnesses. In the context of a habeas
request based upon IAC, it is the petitioner’s burden in a habeas
petition to state a prima facie case that he is entitled to relief.
(California Rule of Court 4.551(c)(1).) For a claim of ineffective
assistance of counsel, there are two important components: “deficient
performance of counsel and prejudice to the petitioner.” (In re Cox
(2003) 30 Cal. 4th 974, 1019.)
With respect to the first component, deficient performance is defined
as representation below an objective standard of reasonableness.
(People v. Ledesma (1987) 43 Cal.3d 171, 216, 217.) Prejudice is
defined as “a reasonable probability that a more favorable outcome
would have resulted.” (In re Cox at 1020.) If there is an insufficient
showing on either one of these components, the ineffective assistance
claim fails. Moreover, ‘ “a court need not determine where counsel’s
performance was deficient before examining the prejudice suffered
by the defendant as a result of the alleged deficiencies.” [Citation.].’”
(People v. Rodrigues, 8 Cal.4th at p. 1126.)” (People v. Holt (1997)
15 Cal.4th 619, 703.)
Petitioner claims there were four witnesses that he wanted to call but
his trial counsel refused to do so: 1.) Anthony Morse, Jane Doe #3’s
brother who he alleges was present in New York despite the victim
claiming otherwise; 2.) David Duncan, who allegedly can rebut the
victim’s claim that he stayed at her residence; 3.) Elizabeth Jackson,
defendant’s girlfriend who could have apparently testified to being
present during an incident that was misinterpreted as sexual in nature
by the victim, and who could have provided character evidence about
the victim’s veracity; and 4.) an expert witness to rebut the
prosecution’s expert.
Generally, whether to call certain witnesses is a matter of trial tactics
for the attorney, unless the decision resulted from an unreasonable
failure to investigate. (People v. Bolin (1998) 18 Cal.4th 297, 334.)
Tactical errors are generally not deemed reversible, and counsel’s
decision making must be evaluated in the context of the available
facts. (Strickland v. Washington (1984) 466 U.S. 669, 690.) In that
regard, petitioner simply has made conclusory allegations without
providing available copies of the discovery including interviews and
police reports so that the court could evaluate the context of his
claims. Such deficiencies can be a basis for denial. (People v. Duvall
(1995) 9 Cal.4th 464, 474.)
With respect to the issue of prejudice, petitioner has similarly failed
to make a sufficient showing. For example, as to Jane Doe #3, he
had admitted to having sexual intercourse with her a couple of times
in New York. (Court of Appeal Decision, Third Appellate District,
C086129, filed July 16, 2019, P. 3-4.) As to the failure to call an
expert, he does not specifiy who that would be or what the expert
33

1

would say to rebut specific testimony at trial. His counsel presented
argument to rebut Dr. Urquiza’s testimony, and he has not shown
another expert would have changed the outcome. With respect to
Elizabeth Jackson, the petitioner failed to include any of her
statements or interviews to police so that the court could examine the
prejudice. He did not provide any information to the court that she
was available and willing to testify.

2
3
4
5

In a habeas petition, it is the petitioner’s burden to state a prima facie
case that he is entitled to relief. (California Rule of Court
4.551(c)(1); In re Bower (1985) 38 Cal.3d 865, 872; In re Hochberg
(1970) 2 Cal. 3d 870, 875, fn 4.) In the present case, he has failed to
state a prima facie basis for relief. Accordingly, his petitioner is
denied.

6
7
8
9

(ECF No. 12-17.) He also raised this claim in habeas petitions before the California Court of

10

Appeals and California Supreme Court, but both courts denied the claim. (ECF Nos. 12-18 to 21-

11

21.)

12

To state an ineffective assistance of counsel claim, petitioner must show both that defense

13

counsel’s performance was deficient and prejudicial. Strickland, 466 U.S. at 687. Relevant here,

14

defense “counsel has a duty to make reasonable investigations or to make a reasonable decision

15

that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691; see also Duncan

16

v. Ornoski, 528 F.3d 1222, 1234 (9th Cir. 2008). “Counsel’s investigation must, at a minimum,

17

permit informed decisions about how best to represent the client.” Cox v. Ayers, 613 F.3d 883,

18

893 (9th Cir. 2010). However, “strategic choices about which lines of defense to pursue are owed

19

deference commensurate with the reasonableness of the professional judgments on which they are

20

based.” Strickland, 466 U.S. at 681; see also Wiggins v. Smith, 539 U.S. 510, 533 (2003);

21

Hamilton v. McDaniel, 408 F. App’x 86, 87 (9th Cir. 2011). “‘[T]he duty to investigate and

22

prepare a defense is not limitless,’ and ... ‘it does not necessarily require that every conceivable

23

witness be interviewed or that counsel must pursue every path until it bears fruit or until all

24

conceivable hope withers.’” Hamilton v. Ayers, 583 F.3d 1100, 1129 (9th Cir. 2009) (citation

25

omitted). In particular, “[f]ew decisions a lawyer makes draw so heavily on professional

26

judgment as whether or not to proffer a witness at trial.” Lord v. Wood, 184 F.3d 1083, 1095 (9th

27

Cir. 1999); see also Black v. Larson, 45 F. App’x 653, 655 (9th Cir. 2002); Riley v. Payne, 352

28

F.3d 1313, 1318 (9th Cir. 2003) (“Of course, counsel need not interview every possible witness to
34

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2

have performed proficiently.”)
Courts have denied ineffective assistance of counsel claims for failure to call a witness at

3

trial when petitioner does not explain what the witness’s testimony would have been or how

4

would have altered the outcome of the trial. See, e.g., United States v. Berry, 814 F.2d 1406,

5

1409 (9th Cir. 1987). There must also be evidence that the witness would testify at trial. See,

6

e.g., United States v. Harden, 846 F.2d 1229, 1231-32 (9th Cir. 1988). Generally, these

7

requirements are satisfied by an affidavit or declaration from the witness. Dows v. Wood, 211

8

F.3d 480, 486 (9th Cir. 2000); Morris v. State of Cal., 966 F.2d 448, 455-56 (9th Cir.

9

1992) (“[W]ishful suggestions” as to what a witness might say “cannot substitute for declaratory

10

or other evidence.”) Here, petitioner does not offer any declarations or evidence to prove what he

11

claims the witnesses would have testified to. Furthermore, some the witnesses may have been

12

unavailable at trial. (ECF No. 1 at 82 (petitioner stating that he told defense counsel he did not

13

know where Morse lived); id. at 84 (petitioner stating that Jackson had gall bladder removal at the

14

time of trial). These deficiencies doom his claim. As explained further below, fairminded jurists

15

could also agree with defense counsel’s tactical decision to not call the witnesses to testify.

16

First, petitioner claims that Anthony Morse, D’s brother, could have rebutted D’s claim

17

that no one was home when petitioner forced D to have sex with him. (ECF No. 1 at 82.) But

18

whether someone else was home is a tangential issue. It does not rebut D’s testimony that

19

petitioner had forcible sex with her, or that petitioner also forced her to have sex with him on

20

separate occasions, and that he was previously convicted for forcible sex. (ECF No. 12-4 at 183-

21

93.) The state court could have reasonably concluded that defense counsel did not want to draw

22

attention to petitioner’s prior conviction.

23

Second, petitioner asserts that David Duncan, petitioner’s brother and D’s uncle, could

24

have rebutted D’s testimony that petitioner spent the night at his house in California, where

25

petitioner assaulted D for the first time. (ECF No. 1 at 83.) Whether petitioner was living at that

26

house or merely staying there the night of the assault is inconsequential. Petitioner does not claim

27

that Duncan can provide any evidence to rebut the facts surrounding the incident. To the

28

contrary, there is evidence in the record that Duncan confronted petitioner after an inappropriate
35

1

encounter. (ECF No. 12-2 at 46 (“That’s your niece. You’re not supposed to touch her like that.

2

Stay away from her.”); ECF No. 12-1 at 201-02 (“Duncan recalled finding the Defendant and JD3

3

in a back bedroom. Duncan claimed to have trouble recalling the incident, but said that what he

4

saw was inappropriate and sexual in nature. They were lying in bed and the Defendant was

5

grabbing JD3’s breasts while JD3 tried to push him off. Duncan said he was very upset by it and

6

told the Defendant to stop.”); ECF No. 12-4 at 66.) When the prosecutor decided not to call

7

Duncan to testify, petitioner stated that defense counsel said “that was a good thing.” (ECF No. 1

8

at 83.) A state court could reasonably conclude that defense counsel was not deficient for

9

choosing not to call Duncan to testify as it would have provided further testimony on the assault.

10

Third, petitioner claims that defense counsel should have called Elizabeth Jackson, his

11

girlfriend, to testify to “her side of the story,” including whether he touched a victim with a

12

vibrator and whether one of the victim’s is a compulsive liar. (ECF No. 1 at 84.) This

13

hypothetical testimony is insufficient to suggest defense counsel was deficient. As to the

14

vibrator, the victim’s testimony about petitioner placing a small, silver bullet vibrator on her

15

lower back right above her bottom was corroborated by a matching vibrator in a drawer of sex

16

toys in Petitioner’s bedroom. (ECF No. 12-5 at 27-29; id. at 140, 231-32.) As the character of

17

the other victim, the defense counsel could have reasonably determined that Jackson’s testimony

18

was not necessary; K testified regarding Ke’s character for honesty and her statement that Ke was

19

a compulsive liar. (Id. at 262-64.) A fairminded jurist could reasonably agree with defense

20

counsel that Jackson’s testimony was not necessary.

21

Lastly, petitioner takes issue with defense counsel’s decision not to call an expert to rebut

22

the state’s expert. (ECF No. 84-85.) Deciding whether or not to hire an expert is a strategic

23

decision that is entitled to a strong presumption of reasonableness. Dunn v. Reeves, 145 S. Ct.

24

2405, 2410 (2021) (per curiam). Here, petitioner cannot overcome this presumption because he

25

presents no evidence to rebut it. Furthermore, petitioner fails to offer any evidence as to what the

26

expert would have testified to and how it would have changed the outcome of the trial. Any

27

speculation as to what an expert would have said is insufficient to establish prejudice for an

28

ineffective assistance of counsel claim. See Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir.
36

1

2001). Based on this Court’s review of the record, defense counsel both cross-examined the

2

prosecutor’s expert and addressed his testimony in closing argument. (ECF No. 12-5 at 185-88;

3

ECF No. 12-6 at 16-17.)

4

This Court concludes that the state court’s decision rejecting petitioner’s ineffective

5

assistance of counsel claim was not contrary to, or an unreasonable application of, clearly

6

established Supreme Court authority and recommends denying habeas relief on this claim.

7

G. Cumulative Error (Claims Four and Nine)

8

Petitioner’s claims that the cumulative effect of the errors alleged herein constitute a

9

denial of due process. The state appellate court rejected this claim. (ECF No. 12-12 at 23.)

10

The Ninth Circuit has concluded that under clearly established United States Supreme

11

Court precedent the combined effect of multiple trial errors may give rise to a due process

12

violation if it renders a trial fundamentally unfair, even where each error considered individually

13

would not require reversal. Parle v. Runnels, 505 F.3d 922, 927 (9th. Cir. 2007) (citing Donnelly,

14

416 U.S. at 643, and Chambers v. Mississippi, 410 U.S. 284, 290 (1973)). “[T]he fundamental

15

question in determining whether the combined effect of trial errors violated a defendant’s due

16

process rights is whether the errors rendered the criminal defense ‘far less persuasive,’ and

17

thereby had a ‘substantial and injurious effect or influence’ on the jury’s verdict.” Parle, 505 F.3d

18

at 928 (internal citations omitted); see also Hein, 601 F.3d at 916.

19

This court has addressed each of petitioner’s claims and has concluded that no error of

20

constitutional magnitude occurred. This court also concludes that the alleged errors, even when

21

considered together, did not render petitioner’s defense “far less persuasive,” nor did they have a

22

“substantial and injurious effect or influence on the jury’s verdict.” Accordingly, petitioner is not

23

entitled to relief on his claim of cumulative error.

24

VI. Conclusion

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26

Accordingly, for all of the reasons set forth above, IT IS HEREBY RECOMMENDED
that petitioner’s application for a writ of habeas corpus be denied.

27

These findings and recommendations are submitted to the United States District Judge

28

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
37

1

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

2

objections with the court and serve a copy on all parties. Such a document should be captioned

3

“Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections,

4

he shall also address whether a certificate of appealability should issue and, if so, why and as to

5

which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the

6

applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

7

§ 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after

8

service of the objections. The parties are advised that failure to file objections within the

9

specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

10

F.2d 1153 (9th Cir. 1991).

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Dated: August 1, 2022

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