Peterson v. People of the State of California

Filing 18

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (Illston, Susan) (Filed on 4/1/2013)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

NORTHERN DISTRICT OF CALIFORNIA

8
9

LUTHER PETERSON, JR.,

United States District Court
For the Northern District of California

10
11
12

No. C 11-2375 SI (pr)

Petitioner,

ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS

v.
GARY SWARTHOUT, warden,

13

Respondent.
/

14
15

INTRODUCTION

16
17
18
19

Luther Peterson, Jr., filed this pro se action seeking a writ of habeas corpus under 28
U.S.C. § 2254. The matter is now before the court for consideration of the merits of the habeas
petition. For the reasons discussed below, the petition will be denied.

20

BACKGROUND

21
22
23
24
25
26
27
28

Peterson was tried in San Francisco County Superior Court in 2006 on charges of sex
offenses against minors. The California Court of Appeal described the evidence that led to the
conviction:
The four victims who testified were Shany., S.P., and A.P., defendant's daughters, and
L., the little sister of the mother of Shany. and S.P. Shany. and S.P. each testified that
when she was between the ages of 6 and 10 years, defendant, on several different
occasions, blindfolded her and, under the pretense of checking her teeth, inserted his
penis in her mouth. L. testified that when she was between the ages of 9 and 11,
defendant on several occasions entered her bedroom, placed his penis in her mouth, and
moved it around until he ejaculated. A.P. testified that when she was in the fifth and sixth
grades, defendant took her to a secluded place on several occasions, placed her hand
around his penis, and moved it up and down.

1

Cal. Ct. App. Opinion, p. 2.
2

Peterson was convicted of continuous sexual abuse of a child under age 14, oral
3

copulation of a child under age 14, and aggravated sexual assault of a child (see Cal Penal Code
4

§§ 288.5, 288(c)(1), 269). Peterson appealed. His conviction was affirmed by the California
5

Court of Appeal, with a remand for resentencing. His petition for review in the California
6
7
8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15

Supreme Court was denied.
Peterson then filed this action. The court issued an order to show cause why the petition
should not be granted. Respondent moved to dismiss Peterson’s unexhausted claims and this
court granted the motion. Peterson elected to dismiss his unexhausted claims, and proceed with
the two exhausted claims: (1) a claim that a jury instruction violated Peterson's right to due
process because it did not require unanimity on every element of the crime of continuous sexual
abuse of a child, and (2) a claim that the supplemental jury instruction on the elements of
California Penal Code § 269 violated his right to due process. Respondent filed an answer to
the two exhausted claims of the petition. Peterson did not file a traverse.

16

JURISDICTION AND VENUE

17
18
19
20
21

This court has subject matter jurisdiction over the petition for writ of habeas corpus under
28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged
conviction occurred in San Francisco County, within this judicial district. 28 U.S.C. §§ 84,
2241(d).

22
23
24
25
26
27
28

EXHAUSTION
Prisoners in state custody who wish to challenge collaterally in federal habeas
proceedings either the fact or length of their confinement are required first to exhaust state
judicial remedies, either on direct appeal or through collateral proceedings, by presenting the
highest state court available with a fair opportunity to rule on the merits of each and every claim
they seek to raise in federal court. 28 U.S.C. § 2254(b), (c). State judicial remedies have been
2

1

exhausted for the two claims remaining for adjudication.

2
3

STANDARD OF REVIEW
This court may entertain a petition for writ of habeas corpus “in behalf of a person in

5

custody pursuant to the judgment of a State court only on the ground that he is in custody in

6

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The

7

petition may not be granted with respect to any claim that was adjudicated on the merits in state

8

court unless the state court's adjudication of the claim: “(1) resulted in a decision that was

9

contrary to, or involved an unreasonable application of, clearly established Federal law, as

10
United States District Court
For the Northern District of California

4

determined by the Supreme Court of the United States; or (2) resulted in a decision that was

11

based on an unreasonable determination of the facts in light of the evidence presented in the

12

State court proceeding.” 28 U.S.C. § 2254(d).

13

“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court

14

arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or

15

if the state court decides a case differently than [the] Court has on a set of materially

16

indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

17

“Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ

18

if the state court identifies the correct governing legal principle from [the] Court’s decision but

19

unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A] federal

20

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

21

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

22

erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. A

23

federal habeas court making the “unreasonable application” inquiry should ask whether the state

24

court’s application of clearly established federal law was “objectively unreasonable.” Id. at 409.

25
26
27
28
3

DISCUSSION

1
2

A.

Jury Unanimity On § 288.5 Offense1

3

1.

4

California Penal Code section 288.5 defines the crime of continuous sexual abuse of a

5
6
7
8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

State Court Proceedings

child:
(a) Any person who either resides in the same home with the minor child or has recurring
access to the child, who over a period of time, not less than three months in duration,
engages in three or more acts of substantial sexual conduct with a child under the age of
14 years at the time of the commission of the offense . . . or three or more acts of lewd
or lascivious conduct, as defined in Section 288, with a child under the age of 14 years
at the time of the commission of the offense is guilty of the offense of continuous sexual
abuse of a child and shall be punished by imprisonment in the state prison for a term of
6, 12, or 16 years.
(b) To convict under this section the trier of fact, if a jury, need unanimously agree only
that the requisite number of acts occurred not on which acts constitute the requisite
number.
Cal. Penal Code § 288.5. Consistent with the statute, the court instructed the jury: "You cannot
convict the Defendant unless all of you agree that he committed three or more acts over a period
of at least three months. But, you do not all need to agree on which three acts were committed."
RT 507.
Peterson contended in the California Court of Appeal, as he does here, that his conviction
under California Penal Code section 288.5 violated his right to due process because the jury was
not required to unanimously agree as to which particular acts he engaged in. Specifically,
although the jury had to find that he committed at least three sex offenses against the minor, the
jurors did not have to agree as to which three acts he had engaged in.
The California Court of Appeal rejected Peterson’s unanimity challenge. The state
appellate court explained that several California courts had confronted and rejected similar
constitutional challenges to § 288.5.
These cases found the statute constitutional on the basis of the “continuous course of
conduct” exception to the requirement of jury unanimity, which holds that a jury need not

26
27
28

1

Peterson's petition suggests, in part, that this was a jury instruction error claim, but the claim
is properly viewed as a challenge to the statute rather than the instructions, because the instructions did
not misstate the statute's unanimity requirement.
4

1
2
3
4

agree on specific instances of criminal conduct to convict a defendant of a crime that is
defined as a series of repeated instances of criminal conduct. The exception was
well-established with respect to other crimes that featured a pattern of repeated, similar
events, particularly child abuse. Extending it to the crime of resident child molestation
presented no unique issues. (See People v. Whitham (1995) 38 Cal. App. 4th 1282,
1296-1297; People v. Gear (1993) 19 Cal. App. 4th 86, 92; People v. Avina (1993) 14
Cal. App. 4th 1303, 1309-1311; People v. Higgins, supra, 9 Cal. App. 4th at pp.
301-302.)

5

14

Defendant argues, in effect, that the continuous course of conduct exception is itself
unconstitutional because the due process clause requires the jury to agree unanimously
on every factual element of a crime. He relies primarily on three decisions, Apprendi v.
New Jersey (2000) 530 U.S. 466, Richardson v. United States (1999) 526 U.S. 813
(Richardson), and [People v. Jones (1990)] 51 Cal.3d 294. Jones, which held that a
defendant's conviction of multiple counts of child molestation on the basis of generic
evidence is not unconstitutional (id. at pp. 320-321), had been decided by the time the
decisions upholding section 288.5 were rendered. Most of these decisions discussed
Jones, and they agreed that it did not require a finding that section 288.5 was
unconstitutional. (E.g., People v. Gear, supra, 19 Cal. App. 4th at pp. 93-94; People v.
Higgins, supra, 9 Cal.App.4th at p. 301.) Indeed, Higgins concluded that Jones “is
relevant, if not dispositive, to our analysis of the constitutionality of section 288.5. For
if the Supreme Court is satisfied there is no constitutional infirmity to section 288
convictions predicated exclusively on generic testimony, then neither does the
codification of generic proof in section 288.5 violate due process or the right to a
unanimous verdict.” (Ibid.) We find nothing in defendant's arguments that undermines
this conclusion. . . . Apprendi, which addresses the requirement that a jury find the facts
on which a sentence enhancement is predicated, is irrelevant to this issue.

15

People v. Peterson, Cal. Ct. App. Opinion, pp. 8-9. The state appellate court also discussed the

16

Richardson case and concluded that its holding did not help Peterson because Richardson was

17

decided as a matter of federal statutory interpretation rather than federal constitutional law. Id.

18

at 9-10. The state appellate court further addressed a potential constitutional concern mentioned

19

in Richardson.

6
7
8
9
United States District Court
For the Northern District of California

10
11
12
13

20
21
22
23
24
25
26
27
28

Richardson recognized the presence of a potential constitutional issue, noting, “this Court
has indicated that the Constitution itself limits a State's power to define crimes in ways
that would permit juries to convict while disagreeing about means, at least where that
definition risks serious unfairness and lacks support in history or tradition.” (Richardson,
supra, 526 U.S. at p. 820.) The court left unresolved, however, whether individual
violations constituting a “continuing course of conduct” are an “element,” requiring
unanimity, or “means,” which do not. Several decisions outside California have
concluded that Richardson did not undermine the constitutionality of continuing course
of conduct crimes that do not require jury unanimity for constituent violations. (See, e.g.,
Jefferson v. State (2006) 189 S.W.3d 305; State v. Ramsey (2005) 124 P.3d 756
[upholding a statute indistinguishable from section 288.5]; State v. Sleeper (2004) 846
A.2d 545; State v. Kelbel (2002) 648 N.W.2d 690; State v. Johnson (2001) 627 N.W.2d
455; Isabelle v. Mansfield (2008) 568 F.Supp.2d 85, 101.) Further, section 288.5 does not
“risk[ ] serious unfairness [or] lack [ ] support in history or tradition.” (Richardson, at p.
820.) As discussed in the decisions upholding the statute, section 288.5 was enacted to
balance the practical problems commonly associated with testimony in resident child
5

1
2
3
4
5

molestation cases, the need to punish appropriately such conduct, and the defendant's
constitutional rights. The consensus is that the statute constitutes “a well designed
accommodation of [those] competing interests” ( People v. Higgins, supra, 9 Cal. App.
4th at p. 304) and a “rational, fair reconciliation of these conflicting considerations.”
(People v. Avina, supra, 14 Cal. App. 4th at p. 1312.) Because the victim's testimony
necessarily will describe the pattern of molestation required by the statute, and because
the jury is required to agree unanimously on the credibility of that testimony, there is little
risk that a defendant will be convicted despite a lack of unanimity about particular
incidents. In short, Richardson does not undermine the rationale of the various decisions
that have upheld the constitutionality of section 288.5.

6
7

Id. at 10-11.

8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

2.

Analysis of Federal Constitutional Claim

Peterson had no right to a unanimity instruction as a matter of federal constitutional law.
Criminal defendants in state court have no federal constitutional right to a unanimous jury
verdict. See Schad v. Arizona, 501 U.S. 624, 631-32 (1991) (rule that jurors not required to
agree upon single means of commission of crime applies equally to contention they must agree
on one of alternative means of satisfying mental state element of crime); Apodaca v. Oregon,
406 U.S. 404, 410-12 (1972) (rejecting 6th Amendment right to jury trial challenge to 10-2 state
jury verdict); Johnson v. Louisiana, 406 U.S. 356, 359-63 (1972) (rejecting due process
challenge to 9-3 state jury verdict); cf. McKoy v. North Carolina, 494 U.S. 433, 449 (1990)
(Blackman, J, concurring) ("different jurors may be persuaded by different pieces of evidence,
even when they agree upon the bottom line . . . . [T]here is no general requirement that the jury
reach agreement on the preliminary factual issues which underlie the verdict"). In the absence
of any holding from the Supreme Court that a federal constitutional right to a unanimous verdict
exists, the state appellate court's rejection of Peterson's claim cannot be said to be contrary to or
an unreasonable application of any clearly established law from the U.S. Supreme Court.
Peterson cannot overcome the hurdle of 28 U.S.C. § 2254(d).
The case of Richardson v. United States, 526 U.S. 813 (1999), does not help Peterson to
overcome the obstacle of 28 U.S.C. § 2254(d) because that case was not a constitutional decision

27
28
6

and instead was a matter of federal statutory interpretation.2 As the California Court of Appeal

2

recognized, Richardson did observe that the U.S. Supreme Court had "indicated that the

3

Constitution itself limits a State's power to define crimes in ways that would permit juries to

4

convict while disagreeing about means, at least where that definition risks serious unfairness and

5

lacks support in history or tradition." Richardson, 526 U.S. at 820. However, the quoted

6

passage was not a holding or a recitation of an earlier holding: even the Richardson decision

7

recognized that it was only an "indicat[ion]" that was subject to qualifications, and that had come

8

from a plurality opinion. Because the principle was not "clearly established Federal law, as

9

determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d) bars relief. When

10
United States District Court
For the Northern District of California

1

there is no Supreme Court precedent that controls on the legal issue raised by a petitioner in state

11

court, the state court’s decision cannot be contrary to, or an unreasonable application of, clearly-

12

established federal law. See Carey v. Musladin, 549 U.S. 70, 77 (2006).

13
14

B.

Instructional Error Claim

15

1.

16

The trial court gave CALCRIM No. 1123 on count 8, adapted to recite the elements of
aggravated sexual assault of a child through forcible oral copulation under sections 269
and 288a, subdivision (c)(2). Consistent with the statutory language, the court instructed
the jury, “To prove that a person is guilty of oral copulation by force, the People must
prove, one, the defendant committed an act of oral copulation with someone else; two,
the other person did not consent to the act; and three, the defendant accomplished the
[act] by force, violence, duress, menace, or fear of immediate and unlawful bodily injury
to anyone.” After retiring, the jury sent a note to the court asking for “a legal definition
of: force, violence, duress, menace, or fear of immediate and unlawful bodily injury to
anyone.” The court concluded it had inadvertently omitted the explanatory jury
instruction and, after consultation with counsel and without objection, gave the
definitions from CALCRIM No. 1015, reading:

17
18
19
20
21
22

“An act is accomplished by force if a person uses enough physical force to
overcome the [other] person's will.

23
24

“Duress means a direct or implied threat of force, violence, danger, hardship, or
retribution that causes a reasonable person to do or submit to something that he

25
26
27
28

State Court Proceedings

2

In Richardson, the Court held that, in a prosecution under 21 U.S.C. § 848 for engaging in a
continuing criminal enterprise, the jury must unanimously agree not only that the defendant committed
a "continuing series of violations," but also must unanimously agree as to which specific "violations"
make up that "continuing series." 526 U.S. at 824.
7

2

or she would not otherwise do or submit to. When deciding whether the act was
accomplished by duress, consider all the circumstances, including the age of the
other person and [the] relationship to the defendant.

3

“Retribution is a form of payback or revenge.

4

“Menace means a threat, statement, or act showing an intent to injure someone.

5

“An act is accomplished by fear if the other person is actually and reasonably
afraid or is actually but unreasonably afraid and the defendant knows of the fear
and takes advantage of it.”

1

6
7

Cal. Ct. App. Opinion, pp. 2-3.
Fear instruction: On appeal, Peterson contended that the trial court gave deficient

9

supplemental instructions on the definitions of fear and force. He contended that the

10
United States District Court
For the Northern District of California

8

supplemental instruction on fear3 misstated the law because it did not state that the "fear" had

11

to be "fear of immediate and unlawful bodily injury."4 He contended that the omission of the

12

qualifying phrase "of immediate and unlawful bodily injury" would have allowed a conviction

13

upon a finding that the girl had orally copulated him fearing something other than bodily injury,

14

such as a fear of disappointing her parent or a fear of not getting an ice cream cone. See Docket

15

# 1-1, p. 152 (Appellant's Opening Brief).

16

The California Court of Appeal rejected Peterson’s argument and held that there was no

17

instructional error because the supplemental instruction did not purport to be a comprehensive

18

statement of the element of forcible oral copulation by “fear” but rather just defined only the first

19

portion of the phrase, “accomplished . . . by . . . fear.” People v. Peterson, Cal. Ct. App.

20

Opinion, p. 5. "The supplemental instruction did not refer to, and was not required to refer to,

21

bodily injury because the instruction did not purport to include that portion of the statutory

22

element. Accordingly, the instruction did not incorrectly define the crime of forcible oral

23

copulation." Id. The state appellate court also found no error in the trial court's decision not to

24
3

The supplemental instruction gave this definition of fear: "An act is accomplished by
fear if the other person is actually and reasonably afraid, or is actually but unreasonably afraid,
26 and the Defendant knows of the fear and takes advantage of it." RT 603.
25

4

California Penal Code § 288a(c)(2) provides for increased punishment for oral copulation
"when the act is accomplished against the victim's will by means of force, violence, duress,
28 menace, or fear of immediate and unlawful bodily injury on the victim or another person."
27

8

1

define the phrase “immediate and unlawful bodily injury on the victim or another person”

2

because the phrase was not intended to be interpreted differently from its common meaning. Id.

3

The state appellate court rejected as unfounded Peterson's suggestion that the jury would have

4

concluded that the supplemental instruction was intended to delete the statutory requirement of

5

fear of bodily injury merely by not mentioning it. "There can be no doubt the jury was aware

6

of the remainder of the phrase, since it included that portion in the note requesting further

7

instructions. Taken as a whole, therefore, the instructions provided by the court properly

8

informed the jury that it was required to find fear of immediate bodily injury." Id.
Force instruction: Peterson argued on appeal that the supplemental instruction on "force"

10
United States District Court
For the Northern District of California

9

was erroneous under state law. He relied by analogy on People v. Cicero, 157 Cal. App. 3d 465,

11

474 (Cal. Ct. App. 1984), which held that, in a § 288 prosecution in which the lewd act itself

12

constitutes the “minimum proscribed conduct,” the “force” required for the aggravated offense

13

described in § 288(b) must be “substantially different from or substantially greater than” the

14

physical force normally inherent in the lewd act. The California Court of Appeal rejected

15

Peterson’s claim that the trial court had erred in defining force, noting that Peterson’s claim had

16

been rejected in other state appellate decisions, such as People v. Guido, 12 Cal. App. 4th 566

17

(Cal. Ct. App. 2005), with which it agreed. In essence, the state court of appeal, like Guido,

18

considered the two statutes – § 288 (lewd conduct) and § 288a (oral copulation) – not to be

19

parallel on the matter of force. The state court of appeal concluded that, "[f]ollowing Guido, the

20

trial court committed no error in failing to instruct the jury that forcible oral copulation required

21

force different from or greater than the force necessary for the act itself." Cal. Ct. App. Opinion,

22

p. 7.

23
24

2.

25

When considering an allegedly erroneous jury instruction, a federal habeas court first

26

considers whether there was "constitutional error" in the challenged instruction. Calderon v.

27

Coleman, 525 U.S. 141, 146 (1998). To determine whether constitutional error occurred, a

Analysis of Federal Constitutional Claim

28
9

habeas court asks: (1) whether there is a reasonable likelihood that the jury understood an

2

assertedly ambiguous instruction to mean what the defendant suggests it means; and (2) if so,

3

“whether the instruction, so understood, was unconstitutional as applied to the defendant.”

4

Id. at 147 (explaining test from Boyde v. California, 494 U.S. 370, 380 (1990)). The foregoing

5

test is only to determine whether constitutional error has occurred; if constitutional error is

6

found, the federal habeas court also must determine whether that error was harmless by looking

7

at the actual impact of the error. Coleman, 525 U.S. at 146-147. The habeas court must apply

8

the harmless-error test set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993), and determine

9

whether the error had a “substantial and injurious effect or influence in determining the jury’s

10
United States District Court
For the Northern District of California

1

verdict.” Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008) (per curiam) (quoting Brecht, 507 U.S. at

11

623).

12

Fear instruction: The California Court of Appeal's rejection of Peterson's challenge to

13

the supplemental jury instruction on fear was not an unreasonable application of, or contrary to,

14

clearly established federal law. There is no reasonable likelihood that, upon hearing the

15

supplemental jury instructions, the jury understood the fear element not to include the

16

requirement that the fear be of immediate and unlawful bodily injury. A reasonable jury would

17

have understood it could have found Peterson guilty on a fear theory only if it found that the

18

victim orally copulated Peterson as a result of her fear of immediate and unlawful bodily injury

19

to herself or another.

20

Even if the supplemental instruction's definition of fear was erroneous, any such error was

21

harmless. The record contains evidence from which a jury could have reasonably inferred that

22

Peterson accomplished the forcible oral copulation by putting the victim in fear of immediate

23

bodily injury. The victim testified that she had once seen Peterson hitting her mother with his

24

fist. RT 74. She jumped on his back to stop the beating before Peterson flung her off. Id. The

25

victim further testified that, on another occasion, Peterson took her into a bedroom, took off his

26

belt and spoke about “whooping” her. RT 84. He said, “'You either want me to whoop you, or

27

you want me to check your teeth.” Id. In fear of getting whooped by Peterson's belt, she

28
10

1

submitted to orally copulate Peterson. RT 84-85.
Force instruction: The state appellate court determined that the supplemental jury

3

instruction on force was correct under state law. A state court's interpretation of state law,

4

including one announced on direct appeal of the challenged conviction, binds a federal court

5

sitting in habeas corpus. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Hicks v. Feiock, 485

6

U.S. 624, 629 (1988) (even a determination of state law made by an intermediate appellate court

7

must be followed). The California Court of Appeal's explanation and interpretation of state law

8

about the force necessary to support a conviction under California Penal Code § 269 is binding

9

on this court on federal habeas review. Peterson's claim that the instruction violated his right to

10
United States District Court
For the Northern District of California

2

due process is premised on an interpretation of state law that has been rejected by the state

11

courts, and that interpretation is binding herein. His due process claim therefore fails. He is not

12

entitled to federal habeas relief on this claim.

13
14

C.

No Certificate of Appealability

15

A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case

16

in which "reasonable jurists would find the district court’s assessment of the constitutional

17

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

18
19

CONCLUSION

20

The petition for writ of habeas corpus is denied on the merits. The clerk will close the file.

21

IT IS SO ORDERED.

22

DATED: April 1, 2013
SUSAN ILLSTON
United States District Judge

23
24
25
26
27
28
11