Manson v. Grounds

Filing 11

ORDER denying 1 Petition for Writ of Habeas Corpus filed by Shawn W. Manson. Signed by Judge Charles R. Breyer on 2/18/2014. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 2/20/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SHAWN W. MANSON,

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Petitioner,

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vs.
RANDY GROUNDS, Warden,
Respondent.

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No. C 12-6043 CRB (PR)
ORDER DENYING PETITION
FOR A WRIT OF HABEAS
CORPUS

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Petitioner, a state prisoner at Salinas Valley State Prison, seeks a writ of

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habeas corpus under 28 U.S.C. § 2254 challenging a conviction and sentence

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from Santa Clara County Superior Court. For the reasons that follow, the petition

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will be denied.

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STATEMENT OF THE CASE

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On June 30, 2011, petitioner was sentenced to a term of 45 years to life,

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after being convicted by a jury of two counts of lewd acts on a child under 14,

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and one count of forcible lewd acts on a child. The jury found true that petitioner

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committed a sexual offense against more than one victim. The jury was unable to

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reach a verdict on two counts of aggravated sexual assault of a child under 14,

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and one count of forcible lewd acts on a child.

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On June 29, 2012, the California Court of Appeal affirmed the judgment

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of the trial court. That same year, the Supreme Court of California denied

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review.

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On November 28, 2012, petitioner filed the instant federal petition for a
writ of habeas corpus under § 2254.

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On February 4, 2013, the court found that the petition, liberally construed,

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stated cognizable claims under § 2254 and ordered respondent to show cause why

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a writ of habeas corpus should not be granted. Respondent has filed an answer to

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the order to show cause. Although given an opportunity, petitioner has not filed a

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traverse.

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STATEMENT OF FACTS

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The California Court of Appeal summarized the facts of the case as

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follows:
Defendant was charged by first amended information with three counts of
aggravated sexual assault of a child under 14 (§ 269; counts 1-3), three
counts of lewd acts on a child under 14 (§ 288, subd. (a); counts 6-8) and
two counts of forcible lewd acts on a child (§ 288, subd. (b)(1); counts 4 &
5). The information further alleged that defendant committed sexual
offenses against more than one victim within the meaning of section
667.61. The alleged victim of counts 1 through 6 was Stephanie Doe, and
the alleged victim of counts 7 and 8 was Sabrina Doe.

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Prior to trial, the People moved in limine for admission of expert
testimony on [Child Sexual Abuse Accommodation Syndrome] "CSAAS."
Defendant moved to exclude CSAAS evidence "for any purpose either in
the People's case-in-chief or on rebuttal." Defendant also moved for leave
to present "a counter-expert" if the court denied his motion to exclude
CSAAS evidence. The court denied defendant's motion to exclude expert
testimony regarding CSAAS. However, the court granted defendant's
motion for leave to call "a 'counter witness,'" and the court stated that the
CALCRIM instruction relating to CSAAS evidence would be given to the
jury.
The Prosecution's Case [FN2]
FN2. Our summary of the prosecution's case relates only to the
three counts for which defendant was convicted.

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At the time of defendant's May 2011 trial, Stephanie Doe was 15 years old
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and Sabrina Doe, who is Stephanie's half-sister, was 24 years old. Their
mother was 44 years old and defendant, who was a friend of their
mother's, and who had a key to their family home, was about eight years
younger. Stephanie has known defendant all of her life, and Sabrina has
known him since she was about 10 years old. Defendant often babysat
Sabrina, Stephanie, and their brother who is three years older than
Stephanie. Stephanie testified that "for the most part," she had "a good
relationship with" defendant. "He was always nice to me."

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Stephanie testified that when she was about five years old, she went on a
trip to Legoland and Knott's Berry Farm with her mother, father, brother,
Sabrina, and defendant. Defendant had "his own room" and her family
had "our own room" at their hotel. At some point on the trip, after a day at
Legoland, Stephanie told her mother that she had to go to the bathroom.
Defendant said that he would take her. When she came out of the
bathroom in the hotel room, defendant came close to her, put one hand
down her pants, and touched her vagina and her buttocks for about 30
seconds to a minute. She tried to move away from him but he held her
back with his other hand; she felt like she could not get away. When they
heard what sounded like Stephanie's mother's voice, defendant stopped
what he was doing and they left the hotel room, but nobody was there.
They returned to Legoland and had been gone for approximately 10
minutes.
Stephanie further testified that she was six when her family stopped seeing
defendant regularly, but her mother did not tell her why. She first "recall
[ed]" defendant's molestations of her when she was 10 years old while she
was in bible class at school. However, she did not tell anybody about the
molestations at that time.
When Stephanie was 14, while she was attending a church camp, she told
her group leader that she had been molested by a family friend when she
was younger. Stephanie did not disclose any details of the molestations or
name the molester, but she said that the group leader was the first person
to know about it. The group leader told Stephanie that she should let her
parents know. When Stephanie returned home, another camp leader
accompanied her and was present when Stephanie disclosed to her mother
that defendant had molested her. Stephanie's mother was shocked and
started crying; she did not ask Stephanie for any details. The next day,
Stephanie's mother took her to file a police report and they were later
separately interviewed by Detective Mark Natividad. The detective told
Stephanie's mother that he wanted to talk to Sabrina and to Stephanie's
brother about defendant, and the detective said that she should not discuss
any details about Stephanie's disclosure with them before his interviews.

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Stephanie's mother called a family meeting at her home. At the meeting
were Stephanie, Sabrina, Sabrina's husband, Stephanie's and Sabrina's
mother, their mother's husband (Stephanie's father and Sabrina's
stepfather), their brother, and two of Stephanie's church youth leaders.
Sabrina and her brother thought it unusual that people other than family
members were at the meeting, but they had no idea what the meeting was
about. Stephanie's mother said Stephanie had something to say.

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Stephanie asked if everyone remembered defendant and, before she said
anything else, Sabrina ran out of the room saying "no, no, no." After
Sabrina left the room, Stephanie said that defendant had molested her, but
she did not go into detail.

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Sabrina's mother and husband followed Sabrina. Sabrina locked herself in
the bathroom and cried. She said, "it's my fault, it's my fault." She
continued crying after she came out of the bathroom and her mother asked
her if she needed to talk to a detective. Sabrina answered yes, but she did
not say anything further. The next day, Sabrina's mother called Detective
Natividad.
Sabrina testified that when she was about 10 or 11 years old, while she
was still in grammar school, and while her mother and stepfather were
having marital problems, she sometimes went with her mother to visit
defendant and stay at his parents' house. There, Sabrina slept in a sleeping
bag on the floor in an upstairs bedroom in her jeans and a T-shirt. She
remembers waking up in the sleeping bag, which was unzipped, being
rocked back and forth, and feeling defendant behind her with an erection
and with his hand on her stomach. She knew it was defendant because of
the way his hand felt. He did not say anything and neither did she; she
pretended that she was still asleep. She could not tell if defendant had
clothes on. The rocking occurred "for a little while[,] it wasn't just real
quick." She did not tell anybody about it, and it happened again each of
the "handful" of, or less than five, times she spent the night at defendant's
parents' house.

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Sabrina also testified that there was a mattress in the living room of her
mother's house, and she used to watch television while on it. Sometimes,
when defendant later came to the house to babysit when Sabrina's mother
and stepfather were gone, defendant wrestled with her on the mattress,
during which time he would pin her down on her back, straddle her legs,
and press their private parts against each other while he had an erection.
Each time he did this, she tried to move away, but he held her down.
Sometimes he put his hand over or under her shirt but over her bra and
quickly grabbed her breast, or he tried to put his hand on her buttocks as
she "squirm[ed]" and tried to push him away. The wrestling incidents
occurred at least two to three times a week over a couple years.

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Sabrina testified that she did not tell her mother about any of these
incidents because she did not know what to say or do, so she kept them to
herself. The first person she told about the incidents was Detective
Natividad.
Sabrina further testified that she spent a lot of time with defendant when
she was between the ages of 10 and 12. Often, just the two of them went to
the mall, out to eat, to the store, or to the movies, but there was nothing
sexual about their relationship. Defendant did put his arm around her
waist or hold her by her hip when they walked around the mall. When she
was 13 or 14, her mother "shut[ ] down the family's relationship with"
defendant without telling her why. However, the family continued to see
him on occasion, such as when defendant and his then girlfriend, now

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wife, visited Sabrina in the hospital after she had her first child. Sabrina
testified that she did not tell defendant on that occasion that she felt that
she had been abandoned or deserted by him.
Stephanie's and Sabrina's mother testified that she and Sabrina often spent
the night at defendant's parents' house during a three-year stretch when
Sabrina was between nine and 11 years old. She remembers that on
occasion, defendant would wrestle with her children on the mattress she
had in her living room and that he would pin them down on the floor. She
testified that the trip to Legoland occurred when Stephanie was five years
old. During the trip, they all shared a two-bedroom suite at a Residence
Inn that was near Knott's Berry Farm and about an hour away from
Legoland, and defendant had one of the bedrooms. There were times
when defendant was alone with Stephanie on the trip. In the morning
while the family ate breakfast outside the suite, defendant would often
take one or more of the children back to the suite before everyone else was
finished eating. She remembers that one time defendant took only
Stephanie back to the suite while everyone else was still eating breakfast.

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Sabrina's mother further testified that some time after the Legoland trip,
when Sabrina was 13 or 14, she received a call from a friend whose
daughter saw defendant and Sabrina at the mall. The friend told Sabrina's
mother that her daughter felt that defendant's and Sabrina's behavior there
"was not appropriate." Because Sabrina's mother trusted her friend's
judgment, she confronted defendant, but he said that nothing was going
on. Defendant stopped coming around as often about that same time.
Sabrina's mother had the locks changed on her family home and she no
longer let defendant babysit her children, but she did not confront Sabrina
with what she had heard.
Stephanie's and Sabrina's brother testified that he looked to defendant as
his older brother, and that defendant never molested him. He also testified
that he never saw defendant wrestling with Sabrina or anyone else in his
parent's home.

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Carl Lewis, a licensed private investigator and consultant on child sexual
abuse issues, testified as an expert in CSAAS. He testified that CSAAS is
not a diagnosis. "It is background information based on observations and
experience that provides alternative explanations for the often unexpected
and often counterintuitive conditions that often appear" in reported child
sexual abuse cases. Lewis had not done any investigation in or
interviewed any of the people involved in this case because CSAAS "is
not something that can be applied to a particular child or a particular set of
facts." Nor can it be used to discern between true and false allegations.

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CSAAS explains "that people delay in disclosing and there are some
explanations for why they do delay." CSAAS has five basic categories:
secrecy; helplessness; entrapment and accommodation; delayed,
conflicted, unconvincing disclosure; and retraction. Each of the categories
provides an alternative explanation for why children do not immediately
come forward with information about a molestation, and not all of the
categories may be present in every case.

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The Defense Case
Marlaina Manson, defendant's wife, testified that she met Sabrina in 2004,
at which time Sabrina seemed "kind of standoffish" and "almost like
jealous." Defendant had not seen Sabrina in the two years before he and
Marlaina saw her in the hospital after she had a baby in 2007. At that time
Sabrina said to defendant, "So you, basically what, you come around after
two years and now you are just going to abandon us again?" Marlaina
encouraged defendant to see Sabrina and her family more often. Just prior
to defendant's arrest, Sabrina left a couple voicemails for defendant asking
him to do some electrical work for her.

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Annette Ermshar, a neuropsychologist and board certified forensic
psychologist, testified as an expert in CSAAS and human memory. She
testified that infants and children have "a very poor ability to make
memories or to remember things." Scientific literature suggests that
memories of things that occurred between the ages of three years and six
years are unlikely to be reliable memories. However, the consensus is that
memories tend to be better for traumatic events than neutral or positive
events.

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Dr. Ermshar further testified that CSAAS has been "rejected" by the
American Psychiatric Association and the American Psychological
Association. It is not a diagnostic tool for forensic purposes; it does not
tell us whether a reported molestation actually occurred. CSAAS was
created to advocate for the treatment of children "who have known
unquestioned, uncontested histories of child sexual abuse." It does not
consider alternate explanations for a child's behavior. There are other
explanations for secrets; helplessness; entrapment; delayed, conflicted,
and unconvincing disclosure; and retractions, that may have nothing to do
with actual sexual abuse.

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People v. Manson, 2012 WL 2520460, * 1-4 (Cal. Ct. App., June 29, 2012).

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DISCUSSION
A.

Standard of Review
This court may entertain a petition for a writ of habeas corpus "in behalf

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of a person in custody pursuant to the judgment of a State court only on the

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ground that he is in custody in violation of the Constitution or laws or treaties of

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the United States." 28 U.S.C. § 2254(a).

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The writ may not be granted with respect to any claim that was

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adjudicated on the merits in state court unless the state court's adjudication of the

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claim: "(1) resulted in a decision that was contrary to, or involved an

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unreasonable application of, clearly established Federal law, as determined by the

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

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

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in the State court proceeding." Id. § 2254(d).

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"Under the 'contrary to' clause, a federal habeas court may grant the writ if

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the state court arrives at a conclusion opposite to that reached by [the Supreme]

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Court on a question of law or if the state court decides a case differently than

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[the] Court has on a set of materially indistinguishable facts." Williams v.

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Taylor, 529 U.S. 362, 412-13 (2000). "Under the 'reasonable application clause,'

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a federal habeas court may grant the writ if the state court identifies the correct

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governing legal principle from [the] Court's decisions but unreasonably applies

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that principle to the facts of the prisoner's case." Id. at 413.

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"[A] federal habeas court may not issue the writ simply because the court

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concludes in its independent judgment that the relevant state-court decision

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

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application must also be unreasonable." Id. at 411. A federal habeas court

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making the "unreasonable application" inquiry should ask whether the state

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court's application of clearly established federal law was "objectively

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unreasonable." Id. at 409.

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The only definitive source of clearly established federal law under 28

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U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme

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Court as of the time of the state court decision. Id. at 412; Clark v. Murphy, 331

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F.3d 1062, 1069 (9th Cir. 2003). While circuit law may be "persuasive authority"

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for purposes of determining whether a state court decision is an unreasonable

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application of Supreme Court precedent, only the Supreme Court's holdings are

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binding on the state courts and only those holdings need be "reasonably" applied.

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Id.

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The standard of review under AEDPA is somewhat different where the

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state court gives no reasoned explanation of its decision on a petitioner's federal

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claim and there is no reasoned lower court decision on the claim. In such a case,

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which applies to several claims petitioner raises here, a review of the record is the

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only means of deciding whether the state court's decision was objectively

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reasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v.

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Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). When confronted with such a

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decision, a federal court should conduct an independent review of the record to

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determine whether the state court's decision was an objectively unreasonable

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application of clearly established federal law. Himes, 336 F.3d at 853; Delgado,

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223 F.3d at 982.

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Petitioner has also presented several unexhausted claims, however the

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court may deny them of the merits if they are not colorable. See 28 U.S.C. §

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2254(b)(2) ("[a]n application for a writ of habeas corpus may be denied on the

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merits, notwithstanding the failure of the applicant to exhaust the remedies

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available in the courts of the State"); Cassett v. Stewart, 406 F.3d 614, 624 (9th

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Cir. 2005) (holding that an unexhausted petition may be denied on the merits

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when it is perfectly clear that the applicant does not raise even a colorable federal

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claim).

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B.

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Claims
Petitioner raises two claims for relief under § 2254: (1) there was

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insufficient evidence to find petitioner guilty of committing a lewd act on

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Stephanie (Count 4), and (2) the admission of CSAAS evidence violated

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petitioner's right to due process. Both claims are without merit.

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Petitioner argues that the evidence regarding a forcible lewd act on

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Stephanie is inherently improbable, and thus insufficient to sustain a conviction.

Sufficiency of the evidence

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The Due Process Clause "protects the accused against conviction except

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upon proof beyond a reasonable doubt of every fact necessary to constitute the

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crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). A

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state prisoner who alleges that the evidence in support of his state conviction

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cannot be fairly characterized as sufficient to have led a rational trier of fact to

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find guilt beyond a reasonable doubt therefore states a constitutional claim, see

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Jackson v. Virginia, 443 U.S. 307, 321 (1979), which, if proven, entitles him to

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federal habeas relief, see id. at 324.

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The Supreme Court has emphasized that “Jackson claims face a high bar

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in federal habeas proceedings . . .” Coleman v. Johnson, 132 S. Ct. 2060, 2062

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(2012) (per curiam). A federal court reviewing collaterally a state court

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conviction does not determine whether it is satisfied that the evidence established

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guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir.

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1992). The federal court "determines only whether, 'after viewing the evidence

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in the light most favorable to the prosecution, any rational trier of fact could have

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found the essential elements of the crime beyond a reasonable doubt.'" Id.

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(quoting Jackson, 443 U.S. at 319). Only if no rational trier of fact could have

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found proof of guilt beyond a reasonable doubt, has there been a due process

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violation. Jackson, 443 U.S. at 324.

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The California Court of Appeal denied petitioner's claim:

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"An appellate court must accept logical inferences that the jury might
have drawn from the circumstantial evidence." (People v. Maury (2003)
30 Cal.4th 342, 396.) "'It is blackletter law that any conflict or
contradiction in the evidence, or any inconsistency in the testimony of
witnesses must be resolved by the trier of fact who is the sole judge of the
credibility of the witnesses. It is well settled in California that one

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witness, if believed by the jury, is sufficient to sustain a verdict.'" (People
v. Watts (1999) 76 Cal. App. 4th 1250, 1258-1259; see also People v.
Cudjo (1993) 6 Cal.4th 585, 608-609.) Reversal is warranted only if it
appears "'that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th
297, 331.)

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In this case, defendant points to numerous conflicts between Stephanie's
testimony and her mother's testimony and the other evidence presented
about the family's trip to visit Legoland in order to support his contention
that Stephanie's claim that defendant molested her on that trip is
demonstrably false. For instance, he points to conflicts in the evidence
regarding who proposed the trip, what time of day the family left on the
trip, and where the inn the family stayed at was located in relation to
Legoland. However, we find that, even with the conflicts and
inconsistencies in the evidence that defendant points to, there is ample
evidence to support defendant's conviction on count 4.
Stephanie's mother testified that while on that trip, her family and
defendant ate breakfast outside their suite. Often, defendant would take
one or more of the children back to the suite before their parents were
through eating. And, Stephanie's mother recalled one instance where
defendant took only Stephanie back to the suite while everybody else was
still eating. Stephanie testified that on one occasion while on that trip,
defendant took her back to the suite alone, and that after she left the
bathroom in the suite, defendant put his hand down her pants and touched
her vagina and buttocks. He stopped when they heard what they thought
was Stephanie's mother's voice outside the suite. That Stephanie thought
that the lewd acts occurred after she and defendant walked to the suite
directly from Legoland, yet there was other evidence demonstrating that
this was impossible, does not warrant reversal of the judgment.
Stephanie's testimony regarding where (in the hotel suite during the
family trip to Legoland), when (after defendant had taken her back to the
suite alone), and how the actual lewd acts occurred (defendant put his
hand down her pants and touched her vagina and buttocks), which was
believed by the jury, is not inherently improbable and is sufficient to
sustain the jury's verdict. (People v. Watts, supra, 76 Cal.App.4th at pp.
1258-1259; People v. Lee, supra, 51 Cal.4th at p. 632.)

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Defendant argues that his case is “akin” to People v. Lang (1974) 11
Cal.3d 134 (Lang). We disagree. In that case, nine-year-old twin sisters
both claimed that, in separate incidents in almost identical circumstances
at a birthday party for the defendant, he placed them on his lap "in full
view of various party-goers," and put his hand in their vaginas for three to
five minutes. (Id. at pp. 136-137.) The Supreme Court concluded that an
argument that the sexual molestation described by the twin sisters was
"physically impossible" and that their testimony was "demonstrably false"
had arguable merit. (Id. at p. 139.) "[A] strong argument could have been
made that the twins' testimony was inherently improbable and
insubstantial" because "[e]ach child, using almost identical words, told of
unsuccessfully resisting separate but identical assaults by [the] defendant
in the presence of from six to twelve persons, none of whom saw either

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assault." (Ibid.) Accordingly, the court found that the defendant had
received ineffective assistance of counsel when his former appellate
counsel refused to raise an insufficiency-of-the-evidence claim on appeal
even though the defendant clearly wanted him to. (Id. at pp. 136, 138139.)
The forcible lewd acts on Stephanie that she claimed occurred in this case
did not have any of the indicia of inherent improbability present in Lang.
Her testimony regarding the assault was not almost identical to any other
reported assault and did not occur in the presence of other persons who
did not see it. The evidence supporting the conviction for forcible lewd
acts on Stephanie was sufficient to sustain defendant's conviction on count
4. Reversal of the conviction is not warranted. (People v. Bolin, supra,
18 Cal.4th at p. 331.)

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Manson, 2012 WL 2520460, * 5-6.
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California Penal Code § 288(b)(1) states, "Any person who commits an
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act described in subdivision (a) by use of force, violence, duress, menace, or fear
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of immediate and unlawful bodily injury on the victim or another person, is
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guilty of a felony." In subdivision (a), the acts described are any lewd or
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lascivious act upon any part of the body "of a child who is under the age of 14
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years, with the intent of arousing, appealing to, or gratifying the lust, passions, or
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sexual desires of that person or the child, is guilty of a felony."
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Based on Stephanie's testimony alone, the state court's decision was
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reasonable in concluding that any rational trier of fact could have found
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petitioner guilty beyond a reasonable doubt. Even though there was conflicting
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testimony regarding the incident with Stephanie, this court "must presume – even
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if it does not affirmatively appear in the record – that the trier of fact resolved
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any such conflicts in favor of the prosecution, and must defer to that resolution."
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Jackson, 443 U.S. at 326. The state court denial of this claim was not an
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unreasonable application of Jackson.
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2.

Admission of CSAAS evidence

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Petitioner argues that the court erred in admitting evidence regarding
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CSAAS. Specifically, petitioner argues that the evidence was irrelevant,
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generally not accepted in the scientific community, and violated his right to due

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process and a fair trial

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The admission of evidence is not subject to federal habeas review unless a

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specific constitutional guarantee is violated or the error is of such magnitude that

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the result is a denial of a fundamentally fair trial guaranteed by due process. See

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Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999). Only if there are no

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permissible inferences that the jury may draw from the evidence may its

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admission violate due process. See Jammal v. Van de Kamp, 926 F.2d 918, 920

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(9th Cir. 1991). Moreover, the Supreme Court "has not yet made a clear ruling

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that admission of irrelevant or overtly prejudicial evidence constitutes a due

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process violation sufficient to warrant issuance of the writ." Holley v.

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Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (finding that trial court's

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admission of irrelevant pornographic materials was "fundamentally unfair" under

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Ninth Circuit precedent but not contrary to, or an unreasonable application of,

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clearly established Federal law under § 2254(d)).

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The California Court of Appeal denied petitioner's claim:

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In California, when a defendant suggests that an alleged child sexual
abuse victim's conduct is inconsistent with his or her accusations of that
abuse, expert testimony on CSAAS has been held admissible to disabuse
jurors of commonly held misconceptions about how child sexual abuse
victims behave. Noting that other states limit or exclude CSAAS
evidence , defendant urges this court to hold that CSAAS testimony is
inadmissible as improper, irrelevant expert opinion which usurps the
jury's function to determine credibility.

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In People v. Perez (2010) 182 Cal. App. 4th 231, this court rejected a
similar challenge to the admissibility of CSAAS evidence. We found "no
reason to depart from recent precedent, to wit: 'CSAAS cases involve
expert testimony regarding the responses of a child molestation victim.
Expert testimony on the common reactions of a child molestation victim is
not admissible to prove the sex crime charged actually occurred.
However, CSAAS testimony "is admissible to rehabilitate [the
molestation victim's] credibility when the defendant suggests that the
child's conduct after the incident – e.g., a delay in reporting – is
inconsistent with his or her testimony claiming molestation. [Citations.]'"
Moreover, it appears that our Supreme Court reached the same conclusion

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in People v. Brown (2004) 33 Cal.4th 892, 906, in which case we are
bound by its reasoning.

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In this case, Stephanie and Sabrina testified that they delayed reporting
defendant's molestations of them. However, they also both testified that
they generally had a good relationship with defendant, that he was always
good to them, and that they enjoyed seeing and spending time with him.
Therefore, expert testimony on CSAAS was admissible "'"to disabuse
jurors of commonly held misconceptions about child sexual abuse, and to
explain the emotional antecedents of abused children's seemingly
self-impeaching behavior. . . ." [Citation.]'" The trial court allowed
defendant to present expert testimony that CSAAS has not attained
scientific acceptance and the court instructed the jury with the pattern
instruction on CSAAS evidence. [Footnote omitted.] That the jury was
able to critically consider Stephanie's and Sabrina's testimony, and not
consider the CSAAS testimony as evidence that defendant committed all
of the crimes charged against him, is shown by the fact that the jury found
defendant not guilty of two of the charged counts and was unable to reach
a verdict on three other counts. Accordingly, any error in the admission
of the CSAAS evidence in this case did not constitute prejudicial error.
Defendant has not shown a violation of his rights to a fair trial and due
process.

12
Manson, 2012 WL 2520460, * 7 (internal citations omitted).
13
The Ninth Circuit has approved of the California Court of Appeal's
14
holding in People v. Patino, 26 Cal. App. 4th 1737 (1994), that the use of
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CSAAS evidence in a child abuse case does not necessarily offend a defendant's
16
due process rights. Brodit v. Cambra, 350 F.3d 985, 991 (9th Cir. 2003). "[W]e
17
have held that CSAAS testimony is admissible in federal child-sexual-abuse
18
trials, when the testimony concerns general characteristics of victims and is not
19
used to opine that a specific child is telling the truth." Id.
20
Petitioner's claim is foreclosed by Brodit. The Ninth Circuit has upheld
21
the use of CSAAS evidence when, as in the instant case, it is used to show the
22
general characteristics of victims and is not used to opine that a specific child is
23
telling the truth. Moreover, the trial court instructed the jury that CSAAS
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evidence was not evidence that petitioner committed any of the crimes charged
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against him, and that the jurors may consider CSAAS evidence only in deciding
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whether or not Stephanie or Sabrina's conduct was inconsistent with the conduct
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of persons who have been molested, when assessing their credibility. This use of

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CSAAS evidence comports with constitutional requirements. In addition,

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petitioner cites to no clear Supreme Court law that the state court violated or

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unreasonably applied.

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Accordingly, the court denies petitioner's claim.

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CONCLUSION

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For the foregoing reasons, the petition for a writ of habeas corpus is

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DENIED.

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Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, a

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certificate of appealability (COA) under 28 U.S.C. § 2253(c) is DENIED

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because petitioner has not demonstrated that "reasonable jurists would find the

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district court's assessment of the constitutional claims debatable or wrong."

13

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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The clerk shall enter judgment in favor of respondent and close the file.

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SO ORDERED.

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DATED:

Feb. 18, 2014
CHARLES R. BREYER
United States District Judge

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