Ricardo C. Raygoza v. Kim Holland

Filing 30

ORDER Denying Petition for Writ of Habeas Corpus. Signed by Judge Edward M. Chen on 11/15/2018. (Attachments: # 1 Certificate/Proof of Service)(emcsec, COURT STAFF) (Filed on 11/15/2018)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

RICARDO C. RAYGOZA,
Petitioner,

8

ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS

9

v.

10

KIM HOLLAND,

11

United States District Court
Northern District of California

Case No. 16-cv-02978-EMC

Respondent.

12
13

Ricardo Raygoza, a prisoner currently incarcerated at the Correctional Training Facility in

14

Soledad, filed this pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mr.

15

Raygoza’s petition is now before the court for review on the merits. For the reasons discussed

16

below, the petition for writ of habeas corpus will be DENIED.

17
18
19
20
21
22
23
24

I.

BACKGROUND

The California Court of Appeal described the facts of the offenses and the evidence
presented at trial:
Appellant lived with his girlfriend and her four children.3 Appellant
was not the biological father of his girlfriend's children. These
children, Jane I, Jane II, and Jane III and their brother Eric had lived
with appellant since they were young. Jane I the oldest daughter
was 21 years younger than appellant.
[Footnote 3:] Appellant and his girlfriend had four more
children with whom they lived; appellant was their
biological father.

25

Jane I—Counts One through Six

26

Jane I testified that when she was 11, while the family was living in
a house on Del Monte, appellant entered her bedroom while she was
lying on the bed watching television with her brother Eric.
Appellant got on top of her and starting “going up and down,”
pressing his pelvic area against her stomach. At the time, Jane I

27
28

1
2
3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

thought that appellant was playing; she did not tell anyone what had
happened. It was only as she grew older that she realized that
appellant was not playing.
When the Del Monte house burned down, the family moved into a
hotel before moving to another house. Appellant admitted to the
police that while the family was at the hotel he touched Jane I on the
inner thigh, leg and foot.
When the family moved to a house on Ramona, Jane I was about 14
years old; appellant would come to where she was sleeping at night
and touch her while other family members were sleeping. This
happened more than once and continued when she turned 15, 16,
and 17. On one occasion, Jane I watched appellant crawl up to her
bed and felt him slowly rub her thigh back and forth in a way that
felt sexual. Another time she awoke to hear the sound of someone
trying to open her bedroom door, which she had locked to prevent
appellant from coming in. When appellant saw that Jane I was
awake he left the room. On yet another occasion, Jane I woke up to
find appellant rubbing her on her leg. When she told him to stop
appellant ran away.
At one house, Jane I slept in the same room as her brother Eric. On
one occasion after she had locked the bedroom door, appellant tried
to open the door using a screwdriver. When Jane I heard the noise
she opened the door; appellant pulled her out of the room, pushed
her against the hallway wall, grabbed her arms with his hands and
kissed both sides of her neck for about five minutes. Jane I
screamed and struggled. Appellant threatened to hurt Jane I's
mother if she continued to scream. Jane I believed appellant
because she had seen appellant hit her mother before.
When the family moved to an apartment on Laurel Street, Jane I
shared a bedroom with Eric and Jane II and III. When Jane I was
about 16, appellant came into the room, lifted Jane I's blankets and
tried to get into bed with her. Jane I kicked him and he left.
When Jane I was approximately 16 she was just about to get into the
shower when she noticed a pencil coming through the wall of the
bathroom; appellant's closet was on the other side of the wall. Jane I
told her mother about the hole and they covered it with putty; soon it
became uncovered. Jane I put toilet paper into the hole, but appellant
pushed the paper out with a pencil while Jane I was using the toilet.
When Jane I was about 17, appellant asked her for her cellular
telephone while she was sitting on the couch. When Jane I handed it
to him, appellant touched her breast. When she responded by
walking away, appellant touched her “butt” and whispered
“Mamacita.” Appellant licked his mouth at Jane I in a similar way
to when he licked his mouth at Jane I's aunt when he would
comment on the size of her breasts.
After Jane I turned 17, appellant began exposing his penis to her.
On one occasion while Jane I was watching television in her room
she saw appellant looking at her from the bathroom. The door to her
room and the bathroom door were open. Appellant was facing her
2

3

with his boxers down and his penis exposed. Appellant grabbed his
penis; Jane I covered her eyes. On another occasion, appellant
opened the door to the bedroom Jane I shared with her siblings when
they were all in the room. When Jane I turned around to see who
had opened the door, appellant pulled down his boxers exposing his
penis.

4

Jane II—Counts Six through Nine

5

14

When Jane II was 12, appellant entered her bedroom at night and
touched her vagina under her underwear. Jane II explained she
woke up feeling as if she needed to go to the bathroom and
screamed when she saw appellant standing touching her. The
scream woke her siblings and appellant ran away. On another
occasion when Jane II was 11 years old she was in a car with
appellant and some of her siblings; appellant touched her vagina
over her clothes for about 10 seconds. Jane II told him to stop, but
appellant said he was just playing. Appellant also touched her chest
under her shirt, again, for about 10 seconds. On a different occasion
while Jane II was watching television in the living room of the
Laurel Street apartment, appellant touched her on the chest under
her shirt and held his hand there for about 10 seconds. Jane II
remembered another incident that happened while they were playing
hide and seek. While Jane II was on the back of the couch trying to
jump out of the window appellant touched her on her “boobs.”
Appellant pulled Jane II down and touched her. Jane II testified that
appellant was not supposed to do that. Jane II pushed appellant and
he stopped.

15

Jane III—Count 10

16

When Jane III was about 10 or 11 appellant came over to Jane III
while she was watching television and began wrestling with her.
Suddenly, appellant put his hand under her clothes and touched her
breasts. Jane III testified that it was not an accident. She knew that
appellant had touched her sisters.

1
2

6
7
8
9
10

United States District Court
Northern District of California

11
12
13

17
18
19
20
21
22
23
24
25
26
27
28

Eventually Jane I, II and III told their mother about the touching.
Their mother confronted appellant and she asked appellant to leave;
he responded by hitting her on the nose three times with his
forehead and threatening to take the children with him. When she
threatened to call the police, appellant took away her cellular
telephone.
Eric confirmed that a person could see into the bathroom from
appellant's closet using the peephole; he told his mother about this
fact.
Eventually, Jane I turned to a school counselor for help and the
counselor contacted the police. All the children were placed in a
foster home.
The police interviewed appellant. He admitted touching Jane I's
breasts and buttocks and that he had rubbed her inner thigh while
she was sleeping. He admitted touching Jane II on the vagina over
her clothes and that he made the peephole in the bathroom with a
3

pencil so he could look at Jane I while she was naked. Appellant
admitted that he got “turned on” when he looked at Jane I or touched
her. Appellant confessed to kissing Jane I while she was asleep and
caressing Jane I on the thigh while the family was staying at a hotel.
He admitted touching Jane II by pulling down her underwear while
she was asleep and touching Jane III on the buttocks. However, he
denied touching Jane II's vagina while they were in a car or climbing
on top of Jane I. Appellant wrote an apology letter asking his stepdaughters to forgive him and said that he was “sorry for everything.”
A videotape of appellant's interview was played for the jury.

1
2
3
4
5
6

Cal. Ct. App. Opinion, pp. 2-6 (footnote omitted).
Following a jury trial in Monterey County Superior Court, Mr. Raygoza was convicted of

7

six counts of committing a lewd or lascivious act on a child under the age of 14, two counts of

9

committing a lewd or lascivious act on a child over the age of 14 where the defendant is 10 years

10

or more older than the victim, and two counts of annoying or molesting a child. The jury found

11

United States District Court
Northern District of California

8

true the allegation that Mr. Raygoza had committed the offenses on more than one victim. He was

12

sentenced to a total of 30 years to life in prison consecutive to a term of two years, eight months in

13

prison.

14

Mr. Raygoza appealed. The California Court of Appeal affirmed the judgment of

15

conviction on June 4, 2014. The California Supreme Court denied the petition for review on

16

August 20, 2014.

17

Mr. Raygoza then filed this action. In his federal petition for writ of habeas corpus, he

18

alleges the following claims: (1) the amendment of the information after the close of evidence

19

violated Mr. Raygoza’s right to notice under the Sixth and Fourteenth Amendments; (2) the

20

CALCRIM No. 1110 instruction violated his rights to a jury trial and due process because it

21

eliminated the need for the jury to find all elements of a California Penal Code section 288(a)

22

offense beyond a reasonable doubt; (3) the CALCRIM No. 1191 instruction violated Mr.

23

Raygoza’s right to due process because it allowed the use of charged offenses as evidence of his

24

propensity to commit other charged offenses; (4) the admission of evidence of Mr. Raygoza’s

25

prior violent acts violated his right to due process; (5) the prosecutor committed misconduct

26

during closing argument when he vouched for a witness; (6) cumulative error; (7) the admission of

27

Mr. Raygoza’s pretrial statement violated his Miranda rights; (8) trial counsel was ineffective in

28

failing to object to the introduction of Mr. Raygoza’s interrogation; and (9) appellate counsel was
4

1

ineffective in failing to assert a Fifth Amendment violation. Claim 7 was dismissed as

2

procedurally defaulted, and Claims 8 and 9 were dismissed as unexhausted. See Docket Nos. 16

3

and 18. The parties have briefed the merits of Claims 1-6 and those claims are now ready for

4

decision on the merits.

5
6

II.

STANDARD OF REVIEW

This Court may entertain a petition for writ of habeas corpus “in behalf of a person in

7

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

8

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

9

The Antiterrorism And Effective Death Penalty Act of 1996 (“AEDPA”) amended § 2254
to impose new restrictions on federal habeas review. A petition may not be granted with respect to

11

United States District Court
Northern District of California

10

any claim that was adjudicated on the merits in state court unless the state court’s adjudication of

12

the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application

13

of, clearly established Federal law, as determined by the Supreme Court of the United States; or

14

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of

15

the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

16

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

17

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

18

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

19

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

20

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

21

the state court identifies the correct governing legal principle from [the Supreme] Court’s

22

decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413.

23

“[A] federal habeas court may not issue the writ simply because that court concludes in its

24

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

25

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

26

federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state

27

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

28

The state-court decision to which § 2254(d) applies is the “last reasoned decision” of the
5

1

state court, if there is a reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991).

2

When confronted with an unexplained decision from the last state court to have been presented

3

with the issue, “the federal court should ‘look through’ the unexplained decision to the last related

4

state-court decision that does provide a relevant rationale. It should then presume that the

5

unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192

6

(2018).
III.

7
8

A.

DISCUSSION

The Amendment of the Charging Document
Mr. Raygoza contends that the amendment of the information at the close of the

9

prosecution’s case-in-chief violated his Sixth Amendment right to notice of the charges. The

11

United States District Court
Northern District of California

10

amendment at issue was a date change for Count 1, which charged Mr. Raygoza with committing

12

a lewd act on Jane I, in violation of California Penal Code section 288(a).1 Whereas the amended

13

information in place at the beginning of trial charged him with committing the Count 1 act “on or

14

about June 1, 2005 through August 23, 2005,” the amendment at the close of the prosecution’s

15

case-in-chief charged him with committing the Count 1 act “on or about August 24, 2003 through

16

August 23, 2004.” See CT 110-111; RT 1882.
1.

17

Background
a.

18

Charges and Trial Court Proceedings

19

A preliminary hearing was held on November 13, 2009. See CT 18-34. None of the three

20

child-victims testified, but a police officer who had interviewed Jane I and Jane II did testify about

21

their statements to him. The officer stated that Jane I told him that the first time that Mr. Raygoza

22

touched her “had taken place approximately four years before” the officer spoke to her on August

23

31, 2009. CT 20. Jane I told the officer that, when she was laying in bed facing the ceiling at the

24

house on Del Monte Avenue in Salinas, Mr. Raygoza “basically climbed on top of her, you know,

25
26
27
28

1

There were four additional counts against Mr. Raygoza in which Jane I was listed as the victim:
The dates alleged for those four counts were in 2007 and 2008. Counts 2 and 3 alleged the
violations of California Penal Code section 288(c)(1) (i.e., lewd act on a “child of 14 or 15
years”); counts 4 and 5 alleged violations of California Penal Code § 647.6(a) (i.e., misdemeanor
child molesting. CT 110-18.
6

1

facing towards her so that her vaginal crotch area was touching his private part area as they faced

2

each other,” and moved in an up-and-down motion while both she and Mr. Raygoza were clothed.

3

CT 20. Jane I did not tell the officer that the event occurred in 2005, CT 27; instead, she said that

4

it occurred “four years prior and that it was during the summer vacation time of the year.” CT 26.

5

An information filed on November 17, 2009, alleged that the Count 1 act occurred “on or

6

about June 1, 2005 through September 1, 2005.” CT 36. The information was amended with a

7

handwritten interlineation dated June 4, 2012, alleging that the Count 1 act occurred “on or about

8

June 1, 2005 through August 23, 2005.” CT 110. Thus, at the start of the jury trial on June 27,

9

2012, Count 1 read as follows:

10

Count: 001. On or about JUNE 1, 2005, THROUGH AUGUST 23,
2005, the crime of LEWD ACT UPON A CHILD, in violation of
Section 288(a) of the Penal Code, a FELONY, was committed by
RICARDO RAYGOZA, who at the time and place last aforesaid,
did willfully, unlawfully, and lewdly commit a lewd and lascivious
act upon and with the body and certain parts and members thereof of
JANE DOE # 1 (DOB: 08/24/1992), a child under the age of
fourteen years, with the intent of arousing, appealing to, and
gratifying the lust, passions, and sexual desires of the said
defendant(s) and the said child. It is further alleged that the above
offense is a serious felony with the meaning of Penal Code Section
1192.7(c)(6).

United States District Court
Northern District of California

11
12
13
14
15
16
17
18

CT 110-11.
At trial, Jane I described the same incident that she had described to the police officer, and

19

testified that Mr. Raygoza “got on top of [her] and started going up and down” while she was

20

“laying in bed watching TV.” RT 1242. However, she remembered the incident had occurred

21

“[w]hen [she] was, like, 11.” RT 1241. She testified that the incident happened at the Del Monte

22

house. RT 1242. Jane I testified that the Del Monte house burned down when she had just started

23

high school. RT 1323. Her mother recalled that the Del Monte house had burned down around

24

2007. RT 1568. “This was the only incident that she testified happened while she was less than

25

14 years of age.” Cal. Ct. App. Opinion at 6-7.

26

At the close of the prosecution’s case-in-chief, the prosecutor moved to amend the

27

information to change the date range for Count 1 to be August 24, 2003, through August 23, 2004,

28

RT 1880-82, to reflect the time frame during which Jane I was 11 years old. Defense counsel did
7

1

not object to the motion. RT 1881. The court granted the motion, and determined that “Count 1

2

will be amended to conform to proof[:] August 24th, 2003, through August 23rd, 2004.” RT

3

1882. After a recess, the defense rested without presenting any evidence. RT 1883. In

4

conformity with the amendment, the verdict form stated that the offense was committed “on or

5

about August 24, 2003 thru August 23, 2004.” CT 216.
b.

6
7

Appeal

On appeal, the California Court of Appeal determined that Mr. Raygoza’s claim that he

8

had been denied notice of the charge due to an improper amendment was procedurally defaulted

9

due to defense counsel’s failure to object at trial: “Appellant has forfeited this claim by failing to
object to the amendment at trial. Having failed to claim surprise or to request a continuance,

11

United States District Court
Northern District of California

10

appellant has forfeited any objection to the amendment to the information on the ground he did not

12

have adequate notice of it.” Cal. Ct. App. Opinion, p. 7 (citations omitted).

13

The California Court of Appeal also rejected Mr. Raygoza’s effort to overcome the

14

procedural default. Mr. Raygoza argued that the procedural default should be excused because

15

trial counsel had provided ineffective assistance in failing to object to the amendment. The state

16

appellate court identified Strickland v. Washington, 466 U.S. 668, 687 (1984), as providing the

17

controlling standard for ineffective-assistance claims and determined that there was neither

18

deficient performance nor resulting prejudice because any objection to the amendment would have

19

been futile.

20
21
22
23
24
25
26
27
28

Here, counsel could have considered an objection to the amendment
of the information pointless because he had notice before trial of the
evidence upon which count one was based.
The general framework within which criminal pleadings are
amended is statutorily derived and has remained constant since
1911. (People v. Superior Court (Alvarado) (1989) 207 Cal.App.3d
464, 472.) [California Penal Code] Section 1009 authorizes
amendment of an information at any stage of the proceedings
provided the amendment does not change the offense charged in the
original information to one not shown by the evidence taken at the
preliminary examination. (People v. George (1980) 109 Cal.App.3d
814, 818–819.)
As pertinent here, the issue is whether the amendment to the
information after all the evidence was in charged crimes different
than those alleged in the original amended information and shown
8

1
2
3
4
5
6
7
8
9
10

United States District Court
Northern District of California

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

by the evidence at the preliminary hearing, thus depriving appellant
of his due process right to notice of the allegations.
All of the pleadings consistently charged appellant in count one with
committing a lewd or lascivious act against Jane I, a child under the
age of 14 years old.
“Under the generally accepted rule in criminal law a variance [in
pleadings] is not regarded as material unless it is of such a
substantive character as to mislead the accused in preparing his
defense....” (People v. Williams (1945) 27 Cal.2d 220, 226; see also
People v. Pitts (1990) 223 Cal.App.3d 606, 905–907.) Furthermore,
“[n]o accusatory pleading is insufficient, nor can the trial, judgment,
or other proceeding thereon be affected by reason of any defect or
imperfection in matter of form which does not prejudice a
substantial right of the defendant upon the merits.” (§ 960.)
“The law is clear that, when it is charged that an offense was
committed “on or about” a named date, the exact date need not be
proved unless the time “is a material ingredient in the offense”
[Citation.]” (People v. Starkey (1965) 234 Cal.App.2d 822, 827.) In
fact, when a defendant does not raise a specific alibi defense, the
prosecution need only prove the act was committed before the filing
of the information and within the period of the statute of limitations.
(People v. Fritts (1977) 72 Cal.App.3d 319, 326; People v. Aylwin
(1973) 31 Cal.App.3d 826, 841–842; People v. Amy (1950) 100
Cal.App.2d 126, 128.) The date change was not material to the
charged offense in count one. Since appellant did not raise an alibi
defense he was neither prejudiced nor misled, and the prosecution
was only required to show a crime had occurred before Jane I's 14th
birthday.
Contrary to appellant's assertions, the amendment did not prejudice
appellant's ability to prepare and present his defense to the charge in
count one as shown at the preliminary hearing and as originally
alleged. Appellant denied climbing on top of Jane I at any time.
The operative pleading under which appellant was convicted did not
charge him with violating a different Penal Code section from that
shown by the evidence at the preliminary hearing and alleged in the
original amended information. Both pleadings were based on the
same course of conduct, involving the same victim. Both pleadings
dealt with the same underlying act—climbing on top of Jane I.
Simply put, appellant was not presented with a moving target; he
was fully aware of what he had to defend against. Plainly,
appellant's substantial rights were not implicated.
Cal. Ct. App. Opinion at 8-10.

25

As the last reasoned decision from a state court, the California Court of Appeal’s decision

26

is the decision to be evaluated in this habeas action. Mr. Raygoza is entitled to habeas relief only

27

if he can avoid the procedural default and then prevail on the merits of his claim.

28
9

1

2.

Analysis

2

The California Court of Appeal imposed a procedural bar to reject Mr. Raygoza’s claim of

3

a denial of his Sixth Amendment right to notice of the charges. This Court thus must determine

4

whether that procedural bar requires dismissal of the federal habeas claim. To help the reader

5

understand the procedural default analysis, the Court will summarize it first and then fill in the

6

details. In brief, the Court’s analysis is as follows: Mr. Raygoza’s right-to-notice claim is

7

procedurally defaulted because the defense failed to interpose a contemporaneous objection, as

8

required by California law. A procedurally defaulted claim may be considered in a federal habeas

9

action if a petitioner shows cause and prejudice for the procedural default. Ineffective assistance
of counsel may provide cause to excuse a procedural default, but only if (a) the ineffective

11

United States District Court
Northern District of California

10

assistance amounts to constitutionally ineffective assistance of counsel, (b) the ineffective-

12

assistance-of-counsel claim was presented as a separate claim in state court, and (c) state court

13

remedies were exhausted for the ineffective-assistance-of-counsel claim. Mr. Raygoza does not

14

show cause to excuse his procedural default based on ineffective assistance because his

15

ineffective-assistance-of-counsel claim is meritless. Therefore, the right-to-notice claim will be

16

dismissed as procedurally defaulted. A more detailed analysis follows.

17

a.

The Procedural Default

18

A federal court “will not review a question of federal law decided by a state court if the

19

decision of that court rests on a state law ground that is independent of the federal question and

20

adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991). “The

21

doctrine applies to bar federal habeas when a state court declined to address a prisoner’s federal

22

claims because the prisoner had failed to meet a state procedural requirement. In these cases, the

23

state judgment rests on independent and adequate state procedural grounds.” Id. at 729-30. A

24

“discretionary state procedural rule can serve as an adequate ground to bar federal habeas review.”

25

Beard v. Kindler, 558 U.S. 53, 60 (2009). A state procedural bar is “independent” if the state

26

court explicitly invokes the procedural rule as a separate basis for its decision and the application

27

of the state procedural rule does not depend on a consideration of federal law. Vang v. Nevada,

28

329 F.3d 1069, 1074-75 (9th Cir. 2003). An “adequate” state rule must be “firmly established and
10

1

regularly followed.” Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Kindler, 558 U.S. at

2

60-61). A rule can be “firmly established and regularly followed” even if it is discretionary, and

3

even if the state court may choose to deny a procedurally barred claim on the merits. See id. at

4

316, 319. The state bears the burden of proving the adequacy of a state procedural bar. Bennett v.

5

Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003).

6

Here, the California Court of Appeal determined that Mr. Raygoza “forfeited” his

7

improper-amendment claim “by failing to object to the amendment at trial. [Citations.] Having

8

failed to claim surprise or to request a continuance, appellant has forfeited any objection to the

9

amendment to the information on the ground he did not have adequate notice of it.” Cal. Ct. App.

10

Opinion at 7.
The Ninth Circuit has determined that California’s contemporaneous objection rule is “an

United States District Court
Northern District of California

11
12

independent and adequate state procedural rule” that bars federal habeas review of a claim. See

13

Fairbank v. Ayers, 650 F.3d 1243, 1257 (9th Cir. 2011); see also Zapien v. Martel, 849 F.3d 787,

14

793 n.2 (9th Cir. 2015). The California Court of Appeal imposed a state procedural bar that is

15

adequate and independent of federal law. Mr. Raygoza’s right-to-notice claim is procedurally

16

defaulted.
b.

17

There Was No Ineffective Assistance Of Counsel Providing Cause To
Excuse The Procedural Default

18

Unless a habeas petitioner shows cause and prejudice, the court may not reach the merits of

19
20

procedurally defaulted claims in which the petitioner failed to follow applicable state procedural

21

rules in raising the claims. See Sawyer v. Whitley, 505 U.S. 333, 338 (1992). The cause standard

22

requires the petitioner to show that “some objective factor external to the defense” or

23

constitutionally ineffective assistance of counsel impeded his efforts to comply with the state’s

24

procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986). To satisfy the prejudice part of

25

the cause-and-prejudice test, the petitioner must show actual prejudice resulting from the errors of

26

which he complains. See McCleskey v. Zant, 499 U.S. 467, 494 (1991).2

27
28

2

A federal court also may hear the merits of a procedurally defaulted claim if the failure to hear
the claim would constitute a “miscarriage of justice.” See Sawyer, 505 U.S. at 339-40. In the
11

In order for counsel’s ineffectiveness to provide cause to excuse a procedural default, the

1

attorney must “be constitutionally ineffective under the standard established in Strickland v.

3

Washington,” 466 U.S. 668 (1984). Murray v. Carrier, 477 U.S. at 488. Under Strickland, a

4

petitioner must establish two things to prevail on a Sixth Amendment ineffective-assistance-of-

5

counsel claim. First, he must demonstrate that counsel’s performance was deficient and fell below

6

an “objective standard of reasonableness” under prevailing professional norms. Strickland, 466

7

U.S. at 687-88. Second, he must establish that he was prejudiced by counsel’s deficient

8

performance, i.e., that “there is a reasonable probability that, but for counsel’s unprofessional

9

errors, the result of the proceeding would have been different.” Id. at 694. Attorney error that

10

does not meet the Strickland standard does not suffice to provide cause to excuse a procedural

11

United States District Court
Northern District of California

2

default. Murray v. Carrier, 477 U.S. at 488. In addition to meeting the Strickland standard, for

12

counsel’s ineffectiveness to provide cause, the petitioner must have presented the ineffective-

13

assistance-of-counsel claim as a separate claim to the state courts and exhausted state court

14

remedies for that claim. Murray v. Carrier, 477 U.S. at 489.
The AEDPA’s deferential standard in 28 U.S.C. § 2254(d) does not apply when a court is

15
16

determining whether there was ineffective assistance of counsel for purposes of determining

17

whether the cause and prejudice standard is met. Visciotti v. Martel, 862 F.3d 749, 768 (9th Cir.

18

2016), cert. denied, 138 S. Ct. 1546 (2017).3 Rather, the court independently determines whether

19

there was ineffective assistance of counsel, without any deference to the state court determination

20

on the claim for ineffective assistance of counsel. Id.

21
22
23
24
25
26
27
28

federal habeas context, the “miscarriage of justice” exception is limited to habeas petitioners who
can show that “a constitutional violation has probably resulted in the conviction of one who is
actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995) (citing Murray v. Carrier, 477 U.S.
at 496). Mr. Raygoza does not argue that the miscarriage of justice exception applies to his case.
3

There is a circuit split as to whether de novo or AEDPA deference is the proper standard of
review when a federal habeas court examines whether there is ineffective assistance of counsel
that supplies cause to excuse a procedural default. Visciotti, 862 F.3d at 769 & n.13. Respondent
argues that there also is a split within the Ninth Circuit on this question and urges the Court to rely
on the analysis in Walker v. Martel, 709 F.3d 925, 939-44 (9th Cir. 2013). Walker did not
squarely address the standard of review, unlike Visciotti. This Court thus follows the clear holding
from Visciotti rather than the implicit assumption (but not holding) in Walker that AEDPA
deference applies to the cause and prejudice analysis.
12

1

Here, the alleged ineffective assistance of counsel consisted of trial counsel failing to

2

object to the prosecution’s request to amend the information. It thus is necessary to consider

3

whether there was potential merit to such an objection because counsel does not engage in

4

deficient performance by failing to raise a nonmeritorious issue. See Juan H. v. Allen, 408 F.3d

5

1262, 1273 (9th Cir. 2005) (counsel’s performance not deficient for failing to raise meritless

6

objection); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (failure to take a futile action can

7

never be deficient performance).

8
9

Mr. Raygoza fails to show deficient performance or resulting prejudice. He fails to show
that an objection under state law would not have been futile. The California Court of Appeal
determined that the amendment was permissible under state law because the “date change was not

11

United States District Court
Northern District of California

10

material to the charged offense” and did not prejudice the defendant’s ability to prepare and

12

present his defense. Cal. Ct. App. Opinion at 10. The California Court of Appeal’s interpretation

13

of California law is binding in this federal habeas action. See Hicks v. Feiock, 485 U.S. 624, 629-

14

30 (1988). That is, this Court’s analysis accepts that the law of California permitted the

15

prosecution, late in the trial, to amend the information to change the date because the date change

16

was not material to the charged offense and was not prejudicial to the defense. There would not

17

have been a meritorious state law objection for counsel to make.

18
19
20

Mr. Raygoza also fails to show that an objection under the federal constitution would have
been sustained. The amendment was not impermissible under federal constitutional law.
“In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the

21

nature and cause of the accusation.” U.S. Const. amend. VI. “No principle of procedural due

22

process is more clearly established than that notice of the specific charge, and a chance to be heard

23

in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every

24

accused in a criminal proceeding in all courts, state or federal.” Cole v. Arkansas, 333 U.S. 196,

25

201 (1948). A charging document, such as an information, is the means by which such notice is

26

provided. Gautt v. Lewis, 489 F.3d 993, 1004 (9th Cir. 2007) (citing Cole, 333 U.S. at 201); see,

27

e.g., id. at 1009 (defendant charged under one subsection of a statute could not be sentenced under

28
13

another subsection that had more requirements and carried a stiffer penalty).4 To satisfy the Sixth

2

Amendment right to notice, “the charging document need not contain a citation to the specific

3

statute at issue; the substance of the information, however, must in some appreciable way apprise

4

the defendant of the charges against him so that he may prepare a defense accordingly.” Id. at

5

1004; see James v. Borg, 24 F.3d 20, 25 (9th Cir. 1994) (“An information is not constitutionally

6

defective if it states the elements of an offense charged with sufficient clarity to apprise a

7

defendant of what to defend against”). The Ninth Circuit has recognized that, in “certain

8

circumstances,” a court can examine sources other than the information for evidence that the

9

defendant did receive adequate notice. Gautt, 489 F.3d at 1009, citing Murtishaw v. Woodford,

10

255 F.3d 926, 953–54 (9th Cir. 2001) (prosecution’s opening statement, evidence presented at

11

United States District Court
Northern District of California

1

trial, and the jury instructions conference provided notice to defendant of the prosecution’s felony-

12

murder theory); Calderon v. Prunty, 59 F.3d 1005, 1009 (9th Cir. 1995) (prosecutor’s opening

13

statement and statements at subsequent hearing, along with trial evidence and trial court’s

14

description of crime scene, provided adequate notice of prosecution’s lying-in-wait theory);

15

Morrison v. Estelle, 981 F.2d 425, 428–29 (9th Cir. 1992) (defendant received constitutionally

16

adequate notice of felony murder theory through the jury instructions the prosecutor submitted two

17

days before closing arguments and from the overall evidence presented at trial). See also

18
19
20
21
22
23
24
25
26
27
28

Gautt “eschewed express reliance on other sources, such as trial evidence, jury instructions, and
closing arguments, to assess whether the petitioner received adequate notice of the charges, [but]
nonetheless ‘assume[d]--without deciding--that such sources can be parsed for evidence of notice
to the defendant. Nevertheless, [Gautt] concluded that, even considering these sources, the
petitioner received constitutionally inadequate notice.” Cain v. Chappell, 870 F.3d 1003, 1013
(9th Cir. 2017) (citations omitted). Gautt had some language suggesting that the court could look
only at the language of the information to determine adequacy of notice, but that portion of the
case is distinguishable from Mr. Raygoza’s issue because Gautt was not addressing whether a
prosecutor could amend the information; instead, Gautt was examining the situation where there
was no amendment to the information and the sentence enhancement was imposed under a
provision different from the provision charged in the information. The “pivotal fact” in Gautt was
the complete omission of any mention of the specific sentence-enhancement statutory provision in
the information that was later used to increase the petitioner’s sentence. Gautt, 489 F.3d at 999.
The confusion between the two sentence enhancement provisions in Gautt -- one alleged in the
information but the other one not alleged in the information -- was exacerbated when the trial
court confused the two provisions in the jury instructions, the prosecutor relied on the erroneous
instruction in his closing argument, the verdicts mixed up the provisions, and the abstract of
judgment mixed up the provisions. See id. at 999, 1001 & n.5; see also Cain, 870 F.3d at 1013
(discussing Gautt).
14
4

1

Sheppard v. Rees, 909 F.2d 1234, 1236 n.2 (9th Cir. 1989) (citation omitted) (“An accused could

2

be adequately notified of the nature and cause of the accusation by other means—for example, a

3

complaint, an arrest warrant or a bill of particulars. Similarly, it is possible that an accused could

4

become apprised of the particular charges during the course of a preliminary hearing.”).
Here, the prosecution’s proposed amendment of the information at the close of the

6

prosecution’s case did not violate Mr. Raygoza’s right to notice of the charges against him. First,

7

the defense had been on notice since the preliminary hearing of the incident that formed the basis

8

for Count 1. The prosecution’s trial evidence corresponded to the same incident as the one

9

described in the preliminary examination. The evidence at both the preliminary hearing and the

10

trial described that (a) Jane I was lying face up in bed when Mr. Raygoza climbed on top of her

11

United States District Court
Northern District of California

5

and rubbed his genital area up and down against her clothed body; (b) the incident had occurred

12

while the family lived at the house on Del Monte before it burned down; and (c) there had been

13

only one such incident of him rubbing against her while she was laying down. Because the

14

substance of the offense described at the preliminary hearing and at the trial corresponded, it

15

would have been clear to Mr. Raygoza and his defense counsel that the evidence at trial was

16

referring to the same incident as that described in the preliminary hearing, despite the date

17

inconsistency. See Sheppard, 909 F.2d at 1234 (observing that the preliminary hearing evidence

18

might give adequate notice). Indeed, defense counsel’s non-objection when the prosecution

19

moved to amend at the end of the prosecution’s case reflects that the defense had understood what

20

incident was at issue for Count 1.

21

Second, the amendment to change the date range did not make a difference to the elements

22

of the crime. A violation of California Penal Code section 288(a) requires that the child-victim be

23

“under the age of 14 years.” Here, Jane I was under age 14 using the date range that was in the

24

pretrial amended information as well as in the amendment made at the close of the prosecution’s

25

case.

26

Third, the amendment did not change the particular Penal Code section under which Mr.

27

Raygoza was charged: as with the amended information in place before trial, the amendment at

28

the close of the prosecution’s case charged him with a violation of California Penal Code section
15

1

288(a). Cf. Cole, 333 U.S. at 202 (due process violated where defendant was charged under one

2

criminal code section but his conviction was upheld under a different criminal code section);

3

Gautt, 489 F.3d at 998 (notice was improper where a defendant was charged under one section of

4

the California Penal Code, but sentenced under another section).
Fourth, Mr. Raygoza does not show that he was misled in the preparation of his defense.

5
6

He did not present an alibi defense; instead, his defense was to deny that the event ever took place.

7

See CT 351. He argues that “defense counsel was unable to ascertain whether they did indeed live

8

on Del Monte during that time period as [Jane I] testified.” Docket No. 29 at 12; see also Docket

9

No. 21-4 at 94. But he fails to show that questions about the particular residence in which the
event took place had any real chance of undermining Jane I’s credibility in her description of the

11

United States District Court
Northern District of California

10

abuse. Both Jane I and Mr. Raygoza lived in the same household for several years, since she was

12

about six or seven years old until his arrest when she was 17 years old, and they had lived in

13

several residences during that time. CT 1226-30. There is no suggestion that any other man lived

14

in the household at any of their residential addresses, i.e., the defense would not be able to rule out

15

Mr. Raygoza merely by showing the incident happened when they lived at another street address.

16

Showing that Jane 1 had a faulty recollection of place details would have had little impact on her

17

credibility regarding the details of the abuse incident. Mr. Raygoza did not assert an alibi defense,

18

or any defense that depended on the date of the offense; rather, his defense was that the incident

19

never happened. His inability to show that he was misled in the preparation of his defense also

20

goes to the prejudice prong of the Strickland analysis: just as he does not show that he was misled

21

in the preparation of his defense, he also does not show a reasonable probability that the result of

22

the proceeding would have been different if an objection had been made.5

23
24
25
26
27
28

5

The potential prejudice to the preparation of the defense is an important factor under both
California law and the Federal Rules of Criminal Procedure, which generally allow an information
to be amended up until the verdict under similar circumstances. See Cal. Penal Code § 1009
(court may order or permit amendment of an information “for any defect or insufficiency, at any
stage of the proceedings, or if the defect in an indictment or information be one that cannot be
remedied by amendment, may order . . . a new information to be filed”; “the trial or other
proceeding shall continue as if the pleading had been originally filed as amended, unless the
substantial rights of the defendant would be prejudiced thereby, in which event a reasonable
postponement, not longer than the ends of justice require, may be granted”); Fed. R. Crim. P. 7(e)
(“unless an additional or different offense is charged or a substantial right of the defendant is
16

1

In sum, a Sixth Amendment-based objection to the proposed amendment to change the

2

date range for the Count 1 charge would have had virtually no chance of succeeding because the

3

defense had been aware since the preliminary hearing of the factual basis for Count 1, the

4

proposed amendment did not change the Penal Code violation charged or affect any element of the

5

crime, and the defense could not show any prejudice from the amendment to change the date. See,

6

e.g., Lara v. Madden, 2017 WL 7938464, at *10 (C. D. Cal. 2017), report and recommendation

7

adopted, 2018 WL 1135636 (C. D. Cal. 2018) (rejecting right-to-notice claim where evidence at

8

trial showed events occurred two years after date range alleged in information because date of

9

child molestation was not required to be alleged in the information under any clearly established
federal law from the U.S. Supreme Court or by state law, and there was no actual prejudice to

11

United States District Court
Northern District of California

10

defense because defense was aware of the relevant dates based on victim’s police interview);

12

Mapuatuli v. Kernan, 2017 WL 2490065, at*4 (C.D. Cal. 2017) (rejecting right-to-notice claim;

13

the “minor modifications” to charging document to enlarge the date range during which

14

molestations allegedly occurred “changed neither the types of charges against him nor any aspect

15

of his defense”); id. (“the viability of Petitioner’s it-never-happened/the-girls-are-liars defense was

16

unaffected by any change to the dates in the charging document”).

17

Mr. Raygoza fails to show that counsel engaged in deficient performance by not

18

challenging the prosecution’s request to amend the information to show a different date range for

19

the crime alleged in Count 1. Counsel had no duty to make a futile motion or objection, see Juan

20

H., 408 F.3d at 1273; Rupe, 93 F.3d at 1445, and Mr. Raygoza has not shown that objecting to the

21

proposed amendment would have been anything but futile. See Morrison, 981 F.2d 425, 429 (9th

22

Cir. 1992) (because petitioner received adequate notice of charge through instructions proposed by

23

prosecutor at the instructions conference and the evidence presented at trial, “appellate counsel

24

would not have been successful in arguing inadequate notice of a felony-murder charge, [and]

25

Morrison does not sustain his burden of proving ineffective assistance of counsel”). He thus has

26

not shown ineffective assistance of counsel that provides cause to excuse his procedural default.

27
28

prejudiced, the court may permit an information to be amended at any time before the verdict or
finding.”).
17

1

See Murray v. Carrier, 477 U.S. at 488. Mr. Raygoza has not established cause or prejudice, or

2

shown that the failure to consider the right-to-notice claim will result in a fundamental miscarriage

3

of justice. Claim 1 therefore is procedurally defaulted and is now dismissed.

4

B.

5

CALCRIM No. 1110 Instructional Error Claim
Mr. Raygoza contends that his right to due process was violated when the jury was

6

instructed with CALCRIM No. 1110. According to him, that instruction “removed the element

7

that the act be committed willfully and lewdly from the jury’s consideration” for the crime of lewd

8

and lascivious conduct under California Penal Code section 288(a). Docket No. 2 at 11.

9
10

1.

State Court Proceedings

California Penal Code section 288(a) provides, in relevant part: “[A]ny person who

United States District Court
Northern District of California

11

willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or

12

member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing

13

to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a

14

felony.”

15
16
17
18
19
20
21
22

At Mr. Raygoza’s trial, the jury was instructed with CALCRIM No. 1110, a pattern jury
instruction, for the section 288(a) offense:
The defendant is charged in Counts 1, 6, 7, 8, 9, and 10 with
committing a lewd or lascivious act on a child under the age of 14
years in violation of Penal Code section 288(a).
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully touched any part of a child's body
either on the bare skin or through the clothing;

23

2. The defendant committed the act with the intent of
arousing, appealing to, or gratifying the lust, passions, or sexual
desires of himself or the child;

24

and

25
26
27
28

3. The child was under the age of 14 years at the time of the
act.
The touching need not be done in a lewd or sexual manner.
Someone commits an act willfully when he or she does it willingly
or on purpose. It is not required that he or she intend to break the
18

1

law, hurt someone else, or gain any advantage.

2

Actually arousing, appealing to, or gratifying the lust, passions, or
sexual desires of the perpetrator or the child is not required.

3

It is not a defense that the child may have consented to the act.

4

CT 422 (CALCRIM No. 1110 (Spring 2012 ed.)) (emphasis added).

5

Mr. Raygoza argued on appeal (as he does in his federal habeas petition) that the italicized

6

sentence in the jury instruction directly conflicted with the express statutory language defining the

7

nature of the crime of lewd acts upon a child and therefore negated an essential element of the

8

crime. He urged that the instruction was infirm because it allowed a conviction without finding an

9

essential element of the offense, i.e., that the touching had been done lewdly. He further urged
that the error was not harmless because some of the touching of Jane II and Jane III “was

11

United States District Court
Northern District of California

10

ambiguous in terms of the sexual or lewd nature of that contact.” Docket No. 2 at 15.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The California Court of Appeal rejected Mr. Raygoza’s arguments, concluding that the
instruction was a correct statement of California law.
CALCRIM No. 1110, as presented to the jury below, correctly
stated the law regarding the crime of lewd act upon a child. The
language of CALCRIM No. 1110 comports with the statutory
elements of the offense of lewd or lascivious act on a child. In
discussing the definition of a “lewd” act under section 288, the
Supreme Court has explained the “statute itself declares that to
commit such an act ‘wilfully and lewdly’ means to do so ‘with the
intent of arousing, appealing to, or gratifying the lust or passions or
sexual desires' of the persons involved.” (In re Smith (1972) 7
Cal.3d 362, 365 (Smith).) The focus of the offense is on the intent
of the perpetrator. “[T]he courts have long indicated that section
288 prohibits all forms of sexually motivated contact with an
underage child. Indeed, the ‘gist’ of the offense has always been the
defendant's intent to sexually exploit a child, not the nature of the
offending act. [Citation.] ‘[T]he purpose of the perpetrator in
touching the child is the controlling factor and each case is to be
examined in the light of the intent with which the act was done. . . .
If [the] intent of the act, although it may have the outward
appearance of innocence, is to arouse . . . the lust, the passion or the
sexual desire of the perpetrator [or the child,] it stands condemned
by the statute. . . .’ [Citation.]” (People v. Martinez (1995) 11
Cal.4th 434, 444 (Martinez).)
The sentence to which appellant objects correctly states the law and
makes it plain to the jury the physical act of touching involved need
not be seen as lewd or offensive in and of itself. Even a physical
touching that may appear innocent, if done with the requisite
statutory intent, can be found to be a prohibited act under section
288. “As suggested in [In re ] Smith, we can only conclude that the
19

6

touching of an underage child is ‘lewd or lascivious’ and ‘lewdly’
performed depending entirely upon the sexual motivation and intent
with which it is committed.” (Martinez, supra, 11 Cal.4th at p. 449;
accord, People v. Lopez (1998) 19 Cal.4th 282, 289 [any touching of
a child under the age of 14 violates section 288, subdivision (a),
even if the touching is outwardly innocuous and inoffensive, if it is
accompanied by the intent to arouse or gratify the sexual desires of
either the perpetrator or the victim.]; see also People v. Sigala
(2011) 191 Cal.App.4th 695, 700–701 (Sigala) [holding same
language in CALCRIM No. 1120 to be correct statement of law].)
In short, CALCRIM No. 1110 does not improperly negate a
statutory element of section 288.

7

...

8

The crux of appellant's argument is that there needs to be a lewd
touching, that is the act itself must be inherently lewd; Martinez
specifically rejected the argument section 288 is violated only if a
defendant touches a child in an inherently lewd manner. (People v.
Martinez, supra, 11 Cal.4th at p. 442.)

1
2
3
4
5

9
10

United States District Court
Northern District of California

11

In sum, CALCRIM No. 1110 as given in this case correctly stated
the law and did not remove an element of the offense from the jury's
consideration.

12
13

Cal. Ct. App. Opinion at 11-14. The California Court of Appeal acknowledged that CALCRIM

14

No. 1110 was revised in 2013 (i.e., a year after Mr. Raygoza’s trial) to delete the challenged

15

sentence, but that revision did “not alter [the appellate court’s] assessment of the validity of

16

CALCRIM No. 1110 as given in this case. There has been no change in the well-established law

17

that a violation of section 288 does not require an explicitly sexual or inherently lewd touching.”

18

Cal. Ct. App. Opinion at 13.

19

As the last reasoned decision from a state court, the California Court of Appeal’s decision

20

is the decision to which 28 U.S.C. § 2254(d) is applied. See Wilson, 138 S. Ct. at 1192. Mr.

21

Raygoza is entitled to habeas relief only if the California Court of Appeal’s decision was contrary

22

to, or an unreasonable application of, clearly established federal law from the U.S. Supreme Court,

23

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

24

2.

Analysis

25

To obtain federal habeas relief for an error in the jury instructions, a petitioner must show

26

that the error “so infected the entire trial that the resulting conviction violates due process.”

27

Estelle v. McGuire, 502 U.S. 62, 72 (1991). A jury instruction violates due process if it fails to

28

give effect to the requirement that “the State must prove every element of the offense.” Middleton
20

1

v. McNeil, 541 U.S. 433, 437 (2004). “‘A single instruction to a jury may not be judged in

2

artificial isolation, but must be viewed in the context of the overall charge.’” Id. (quoting Boyde v.

3

California, 494 U.S. 370, 378 (1990)). “Even if there is some ‘ambiguity, inconsistency, or

4

deficiency’ in the instruction, such an error does not necessarily constitute a due process

5

violation.” Waddington v. Sarausad, 555 U.S. 179, 190 (2009) (quoting Middleton v. McNeil, 541

6

U.S. at 437). Where an ambiguous or potentially defective instruction is at issue, the court must

7

inquire whether there is a “reasonable likelihood” that the jury applied the challenged instruction

8

in a way that violates the Constitution. Estelle, 502 U.S at 72 & n.4; Boyde, 494 U.S. at 380. If a

9

constitutional error is found in the jury instructions, the federal habeas court also must determine
whether that error was harmless by looking at the actual impact of the error. Calderon v.

11

United States District Court
Northern District of California

10

Coleman, 525 U.S. 141, 146-47 (1998).

12

The California Court of Appeal’s rejection of Mr. Raygoza’s instructional error claim was

13

not contrary to, or an unreasonable application of, clearly established law from the U.S. Supreme

14

Court. The appellate court determined that the instruction correctly stated California law that the

15

manner of touching need not be inherently lewd or offensive, and that a violation occurs if the

16

defendant commits the act with the intent of arousing, appealing to, or gratifying the lust or sexual

17

desires of one or both of the persons involved. The California Court of Appeal rejected Mr.

18

Raygoza’s interpretation of the statute as a matter of state law. The California Court of Appeal’s

19

interpretation of California law is binding in this federal habeas action. See Hicks v. Feiock, 485

20

U.S. 624, 629-30 (1988). That is, this Court’s analysis begins with an acceptance that the law of

21

California is that a section 288(a) offense may occur even if the touching is not itself done in a

22

lewd or sexual manner. This Court must accept that the law of California is that a section 288(a)

23

offense occurs if the defendant commits the act with the intent of arousing, appealing to, or

24

gratifying the lust or sexual desires of one or both of the persons involved. Here, those

25

determinations of state law mean that the premise of Mr. Raygoza’s challenge to the instruction is

26

wrong. That is, contrary to Mr. Raygoza’s assertion, the jury did not have to find that the touching

27

had to be done in a lewd manner even though the section 288(a) offense makes criminal certain

28

“lewd and lascivious acts.”
21

1

Given that the touching need not be done in a lewd manner, Mr. Raygoza’s due process

2

claim fails because his premise is wrong. He contends that the jury instruction impermissibly

3

negated the need for the jury to find the element that the touching was done lewdly, but California

4

law does not have such an element for this crime. For the jury to find the defendant guilty, the

5

instruction required the jury to find that (a) the defendant touched the under-14-year-old child’s

6

body, and (b) “[t]he defendant committed the act with the intent of arousing, appealing to, or

7

gratifying the lust, passions, or sexual desires of himself or the child.” CALCRIM No. 1110.

8

That was enough under state law. As the state court of appeal reasonably determined, innocent

9

conduct would not lead to a conviction because of the instruction’s requirement that the
“defendant commit[] the act with the intent of arousing, appealing to, or gratifying the lust,

11

United States District Court
Northern District of California

10

passions, or sexual desires of himself or the child.”

12

This Court concludes that there is no reasonable likelihood that the use of CALCRIM No.

13

1110 eliminated the need for the prosecutor to find all elements of the section 288(a) offense

14

proven beyond a reasonable doubt. Several other district courts also have so held. See, e.g., Fijar

15

v. Madden, 2016 WL 8737749, at *5-6 (C.D. Cal. 2016) (petitioner not entitled to federal habeas

16

relief because CALCRIM No. 1110 was a correct statement of state law, as the state appellate

17

court had determined that the offense did not require proof of touching in a lewd manner);

18

Franklin v. Davis, 2015 WL 10583503, at *10-11 (C.D. Cal. 2015) (same); Barnard v. Busby,

19

2014 WL 1512031, at *18 (C.D. Cal. 2014) (CALCRIM No. 1110 “did not relieve the prosecution

20

of its burden to prove every element of the charged offenses” because, contrary to petitioner’s

21

argument, state law has been interpreted not to require that the “form, manner or nature of the

22

touching itself” be lewd); Healan v. Gipson, 2011 WL 3962084, at *7-8 (C.D. Cal. 2011)

23

(CALCRIM No. 1110 did not relieve the prosecution of burden to prove every element of charged

24

offense because, as state court had determined, § 288(a) did not require that the touching be done

25

in a lewd manner).

26

Mr. Raygoza has not shown any instructional error, let alone one that “so infected the

27

entire trial that the resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 72

28

(1991). He is not entitled to the writ on this claim.
22

1

C.

CALCRIM No. 1191 Instructional Error Claim
Mr. Raygoza next contends that the use of a jury instruction regarding propensity evidence

2
3

denied him his due process right to a presumption of innocence and proof beyond a reasonable

4

doubt.

5

1.

6

The jury was given the following instruction about using other charged offenses as

7
8
9
10

United States District Court
Northern District of California

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

State Court Proceedings

propensity evidence:
The People presented evidence that the defendant committed the
crimes of Lewd Act Upon a Child and Child Molest. These are
crimes that are charged crimes in this case that are alleged in Counts
One through Ten. These crimes are defined for you in these
instructions.
If you decide that the Defendant committed a charged offense listed
above, you may, but are not required, to conclude from that
evidence that the defendant was disposed or inclined to have the
requisite specific intent or mental state for the crimes charged in
Counts One through Ten or the lesser crimes of Attempted Lewd
Act Upon a Child or Attempted Child Molest, and based on that
decision also conclude that the Defendant was likely to and did have
the requisite specific intent or mental state for other charged
offenses alleged in Counts One through Ten, or the lesser crimes of
Attempted Lewd Act Upon a Child or Attempted Child Molest.
If you conclude from that evidence that the defendant committed a
charged offense, listed above, that conclusion is only one factor to
consider along with all the other evidence. It is not sufficient by
itself to prove that the defendant is guilty of other charged offenses
alleged in Counts One through Ten or the lesser crimes of
Attempted Lewd Act Upon a Child or Attempted Child Molest. The
People must still prove each element and allegation beyond a
reasonable doubt.
Do not consider this evidence for any other purpose except for the
limited purpose of determining the specific intent or mental state of
the Defendant as to Counts One through Ten or the lesser crimes of
Attempted Lewd Act Upon a Child or Attempted Child Molest.
CT 426 (CALCRIM 1191, as modified).
The California Court of Appeal rejected Mr. Raygoza’s contention that this propensity

26

instruction was improper under state law and federal constitutional law. The court explained that

27

the evidence covered by this instruction properly was admitted under California Evidence Code

28

section 1108, which allows admission of evidence of a defendant’s commission of another sexual
23

1

offense as evidence of the defendant’s disposition to commit such crimes. The court also

2

explained that state law allowed the use of current charged offenses, not just past crimes or

3

uncharged offenses, as propensity evidence under section 1108. Cal. Ct. App. Opinion at 17,

4

citing People v. Villatoro, 54 Cal. 4th 1152 (Cal. 2012). And the court observed that the

5

California Supreme Court had rejected a due process challenge to an earlier version of the

6

propensity instruction that was not materially different from CALCRIM 1191. See Cal. Ct. App.

7

Opinion at 16, citing People v. Reliford, 29 Cal. 4th 1007 (Cal. 2003).
The state appellate court explained that the trial court had used a modified version of

9

CALCRIM 1191, the pattern instruction on consideration of propensity evidence, “pursuant to this

10

court’s opinion in People v. Wilson (2008) 166 Cal. App. 4th 1034.” which had approved a similar

11

United States District Court
Northern District of California

8

propensity instruction for other charged offenses. Cal. Ct. App. Opinion at 14. In considering the

12

challenge to the instruction, the court looked at the “instructions as a whole and the entire record

13

of trial, including the arguments of counsel.” Cal. Ct. App. Opinion at 15. Here, that included

14

CALCRIM No. 220, the general reasonable doubt and presumption-of-innocence instruction, that

15

was given to the jury twice.6 Cal. Ct. App Opinion at 15-16.

16
17
18
19
20
21
22
23
24
25
26
27
28

6

The CALCRIM 220 instruction given at the trial stated:
The fact that a criminal charge has been filed against the
defendant[s] 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.
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
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.
24

1

Noting that the challenged instruction reiterated the general reasonable doubt standard, the

2

California Court of Appeal explained that, under the challenged instruction “if, and only if, the

3

jury found that defendant committed a charged offense could it consider that evidence as evidence

4

of a propensity to harbor the requisite intent for other charged offenses. Thus, in effect, the

5

instruction permitted the jury to consider only the evidence of acts which it unanimously agreed

6

appellant committed as evidence of propensity to harbor the requisite specific intent.” Cal. Ct.

7

App. Opinion, at 16. The California Court of Appeal rejected the argument that it was necessary

8

to expressly inform the jury that the People must prove every element of a crime beyond a

9

reasonable doubt before that crime may be considered as propensity evidence with respect to

10

another crime. Cal. Ct. App. Opinion at 18.

United States District Court
Northern District of California

11

Plainly, the instructions given in this case, when taken together,
informed the jury that in deciding if appellant committed a charged
offense they had to find that he committed that offense beyond a
reasonable doubt. CALCRIM No. 220, which the court gave here
twice, once before the jury received any evidence and once at the
close of all the evidence before the jury started to deliberate, so
informed them. The modified version of CALCRIM No. 1911
reinforced this by informing the jury that the “People must still
prove each element of every charge beyond a reasonable doubt.”
There was no risk the jury would apply an impermissibly low
standard of proof.

12
13
14
15
16
17

Cal. Ct. App. Opinion at 18-19.

18

2.

Analysis

19

It is beyond dispute that the Fourteenth Amendment’s Due Process Clause requires that a

20

defendant be presumed innocent until proven guilty, that he may only be convicted upon a

21

showing of proof beyond a reasonable doubt, and that the jury must be properly instructed that a

22

defendant is presumed innocent until proven guilty beyond a reasonable doubt. See Gibson v.

23

Ortiz, 387 F.3d 812, 820 (9th Cir. 2004), overruled on other grounds by Byrd v. Lewis, 566 F.3d

24

855 (9th Cir. 2009) (citing In re Winship, 397 U.S. 358, 364 (1970)). “Any jury instruction that

25

‘reduce[s] the level of proof necessary for the Government to carry its burden . . . is plainly

26

inconsistent with the constitutionally rooted presumption of innocence.’” Id. (quoting Cool v.

27
28

CT 403 (CALCRIM 220).
25

1
2

United States, 409 U.S. 100, 104 (1972) (alteration and omission in original).
As mentioned in Section B.2., above, to obtain federal habeas relief for an error in the jury
instructions, a petitioner must show that the error “so infected the entire trial that the resulting

4

conviction violates due process.” Estelle, 502 U.S. at 72. The reviewing court does not look at

5

the instruction in isolation and instead views it “‘in the context of the overall charge’” to the jury.

6

Middleton, 541 U.S. at 437. Where an ambiguous or potentially defective instruction is at issue,

7

the court must inquire whether there is a “reasonable likelihood” that the jury has applied the

8

challenged instruction in a way that violates the Constitution. Estelle, 502 U.S at 72 & n.4. Even

9

if there is a constitutional error in the instructions, habeas relief is not available unless the error

10

had a substantial and injurious effect or influence in determining the jury’s verdict. Calderon v.

11

United States District Court
Northern District of California

3

Coleman, 525 U.S. 141, 146-47 (1998); Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

12

The California Court of Appeal’s rejection of Mr. Raygoza’s challenge to the propensity

13

instruction given at his trial was not contrary to, or an unreasonable application of, clearly

14

established law from the U.S. Supreme Court. This Court must accept as correct the California

15

Court of Appeal’s state law determination that other bad acts, including currently charged

16

offenses, may be used as propensity evidence in California. See Hicks, 485 U.S. at 629-30 (state

17

court’s interpretation of state law is binding on federal habeas court). The critical question here is

18

whether the instruction undermined the presumption of innocence or lowered the prosecution’s

19

burden to prove guilt beyond a reasonable doubt. The California Court of Appeal’s conclusion

20

that the instruction did not do so was a reasonable one.

21

The jury instruction given at Mr. Raygoza’s trial did not incorrectly describe the burden of

22

proof or permit conviction upon a standard less than proof beyond a reasonable doubt of every

23

element of the charged crimes. The CALCRIM 1191 instruction included important cautionary

24

language that the propensity evidence was not alone enough to prove the required mental state or

25

guilt: “[i]f you conclude from that evidence that the defendant committed a charged offense, listed

26

above, that conclusion is only one factor to consider along with all the other evidence. It is not

27

sufficient by itself to prove that the defendant is guilty.” CT 426. The CALCRIM 1191

28

instruction also reiterated the prosecutor’s need to prove each element beyond doubt: “The People
26

1

must still prove each element and allegation beyond a reasonable doubt.” CT 426. This was in

2

addition to the full reasonable-doubt instruction that had been given to the jury at the beginning of

3

the case and as part of the final jury instructions. See CT 403.
The CALCRIM 1191 instruction given at Mr. Raygoza’s trial also did not mention a

5

preponderance of the evidence standard or leave the jury guessing as to whether guilt of the charge

6

under consideration could rest solely on the propensity evidence – problems that plagued an earlier

7

version of California’s propensity instructions. See Gibson v. Ortiz, 387 F.3d 812 (9th Cir. 2004).

8

There, the jury was instructed with the pre-1999 version of CALJIC 2.50.01 which did not

9

caution the jury that the inference it could draw from the prior offense was not enough to prove

10

guilt on the charged crime beyond a reasonable doubt. The problem in Gibson was compounded

11

United States District Court
Northern District of California

4

by the use of a modified version of CALJIC 2.50.1 that stated the preponderance of the evidence

12

standard as the burden of proof for prior offenses. The “interplay of the two instructions allowed

13

the jury to find that Gibson committed the uncharged sexual offenses by a preponderance of the

14

evidence and thus to infer that he had committed the charged acts based upon facts found not

15

beyond a reasonable doubt, but by a preponderance of the evidence.” Id. at 822. Those

16

instructions, carefully followed by the jury, would allow Gibson’s conviction based on a finding

17

made on the unconstitutionally low preponderance of the evidence standard. In light on the

18

instructions given herein, no such risk obtains in this case.

19

In Schultz v. Tilton, 659 F.3d 941 (9th Cir. 2011), the Ninth Circuit upheld a newer version

20

of California’s propensity instruction that had some significant improvements over the version

21

examined in Gibson. Unlike the instructions challenged in Gibson, the instruction challenged in

22

Schultz did caution the jury that the propensity evidence “is not sufficient by itself to prove

23

beyond a reasonable doubt that he committed the charged crimes,” and did caution that a

24

propensity inference “is simply one item for you to consider, along with all other evidence, in

25

determining whether the defendant has been proved guilty beyond a reasonable doubt of the

26

charged crime.” Schultz, 659 F.3d at 944. This revised instruction “was unambiguous and made

27

clear that Schultz could be convicted only if the evidence as a whole ‘proved [him] guilty beyond

28

a reasonable doubt of the charged crime.’” Id. at 945 (alteration in original). The instruction was
27

1
2

constitutionally sufficient.
The instructions at Mr. Raygoza’s trial --unlike the instructions in Gibson and like the

3

instruction in Schultz -- would not, if followed by the jury, permit his conviction based on

4

anything less than proof beyond a reasonable doubt of all elements of the crimes charged. Unlike

5

the instructions in Gibson, there was no confusing mention of the preponderance-of-the-evidence

6

standard. Like the instruction in Schultz, Mr. Raygoza’s instruction specifically cautioned the jury

7

that the propensity evidence alone was insufficient to convict, that the propensity evidence was

8

just one factor along with other evidence to consider, and that the prosecution still had to prove

9

each element beyond a reasonable doubt. The instructions in Mr. Raygoza’s case did not have
potential to mislead the jury about the proper use of the propensity evidence. Cf. Collins v. Carey,

11

United States District Court
Northern District of California

10

312 F. App’x 74, 76 (9th Cir. 2009) (instruction mentioned preponderance-of-evidence standard

12

for domestic violence propensity evidence but also cautioned that the propensity evidence alone

13

was not to prove guilt beyond a reasonable doubt; “[r]ead in conjunction with the instructions on

14

proof beyond a reasonable doubt, it was not unreasonable under AEDPA for the California courts

15

to find no due process violation”).

16

It is true the CALCRIM 1191 instruction given at Mr. Raygoza’s trial did not explicitly

17

state that the jury had to find proof beyond a reasonable doubt that Mr. Raygoza committed an

18

offense before the jury could use the commission of that offense as propensity evidence that he

19

had the requisite mental state for another offense, but the failure to make that point explicitly did

20

not create a “reasonable likelihood,” Estelle, 502 U.S. at 72 & n.4, that the jury applied the

21

instruction to find Mr. Raygoza guilty on less than proof beyond a reasonable doubt of the latter

22

offense. A “meager ‘possibility’” that the jury misapplied the instruction is not enough. Kansas v.

23

Carr, 136 S. Ct. 633, 643 (2016). As the California Court of Appeal reasonably determined, the

24

jury could consider evidence Mr. Raygoza committed a charged offense as “evidence of a

25

propensity to harbor the requisite intent for other charged offenses” “if, and only if, the jury found

26

that [he] committed a charged offense.” Cal. Ct. App. Opinion at 16. And both the CALCRIM

27

1191 and CALCRIM 220 instructions given made it clear that the jury could not find Mr. Raygoza

28

had committed a charged offense unless it found proof beyond a reasonable doubt. It was not
28

1

unreasonable for the state appellate court to conclude that, from these instructions, the jury would

2

have understood that, before it could use a charged offense as propensity evidence for another

3

charged offense, the jury had to find, beyond a reasonable doubt, that Mr. Raygoza committed the

4

first charged offense.

5

The parties’ closing arguments reinforced the key points in the CALCRIM 1191

6

instruction. The prosecutor read CALCRIM 1191 and then said, “What does all that mean? It

7

means basically” that if, for example, the jurors found Mr. Raygoza guilty of a lewd act on Jane II,

8

“you can take that fact in determining whether he had the specific intent when he was touching

9

[Jane I and Jane III].” RT 2130-31. Defense counsel reiterated that jurors could not use
propensity evidence as the sole evidence to establish guilt: propensity evidence cannot “make[] up

11

United States District Court
Northern District of California

10

for the fact that I don’t think he had the sexual intent here. It’s not how propensity works. You

12

can use it as one factor, but you can’t ignore the other doubt you have.” RT 2192.
When viewed in conjunction with the reasonable doubt instruction, the CALCRIM 1191

13
14

instruction given at Mr. Raygoza’s trial made clear that even if the jury found that he had

15

committed one lewd act and drew the inference from that evidence that he was disposed to have a

16

lewd intent for another lewd act, that alone was not sufficient to prove beyond a reasonable doubt

17

that he committed the latter offense. The California Court of Appeal reasonably determined that

18

there was no reasonable likelihood that the jury applied the challenged instruction to convict Mr.

19

Raygoza based on any standard below proof beyond a reasonable doubt. He is not entitled to the

20

writ on his claim that the CALCRIM 1191 jury instruction violated his right to due process.

21

D.

22

Admission Of Evidence Of Prior Violent Acts
Mr. Raygoza next contends that his right to due process was violated when the trial court

23

admitted evidence that he had been violent with the victims and their mother. None of this

24

violence was committed simultaneously with any of the lewd acts.

25

1.

State Court Proceedings

26

During in limine proceedings, defense counsel moved to exclude evidence regarding Mr.

27

Raygoza’s physical abuse of the victims and their mother. The trial court ruled that, if a proper

28

foundation was laid, the evidence of physical abuse was admissible because it could “show the
29

1

child was fearful of the defendant or may go to the child not reporting or the child consenting or

2

putting up with certain conduct.” RT 917. When the issue came up again during witness

3

testimony, the court ruled that an adequate foundation had been laid, and the evidence was

4

admissible as relevant to explain the witness’ “reactions and responses to the defendant based

5

upon his conduct,” and “to explain her reporting or timely reporting or lack of timely reporting.”

6

RT 1316. The trial court also found that the relevance of the evidence outweighed the prejudicial

7

effect, noting “that details were not gone into by the People.” RT 1316. Thus, at trial:

8
9
10

United States District Court
Northern District of California

11
12
13
14
15

Jane I testified that she was afraid of appellant because when she
was 12 appellant had almost killed her mother leaving bruises on her
mother's neck and face. Further, Jane I said that she had seen
appellant hit her sisters. Jane II testified that appellant would hit her
and her siblings; when he was mad appellant would hit them with a
belt. Jane III testified that on one occasion appellant hit her because
his soccer team lost a game; and when she was four, appellant hit
her brother and her sister. When she got mad at appellant, appellant
hit her. The children's mother testified that appellant hit her nose
with his head.
Cal. Ct. App. Opinion at 19.
On appeal, the California Court of Appeal rejected Mr. Raygoza’s contentions that the

16

admission of the evidence of physical abuse was erroneous under California Evidence Code

17

section 352 and violated his federal right to due process. The state appellate court agreed with Mr.

18

Raygoza’s assertion that the victims’ state of mind and delayed reporting were not elements of the

19

section 288(a) offense, but found the observation unhelpful because the violence evidence was

20

relevant for a different purpose.

21
22
23
24
25
26
27
28

[E]vidence of appellant's violent acts that the girls had witnessed or
of which they had knowledge had a tendency in reason to establish
that they genuinely feared appellant, which in turn had a tendency in
reason to explain their delayed reporting to someone outside the
family and, undoubtedly, was relevant to their credibility. (See
Evid.Code, §§ 210, 780, Cal. Law Revision Com. com., 29 B, Pt. 2
West's Ann. Evid.Code (1995 ed.) foll. § 780, p. 586; see also §
351.) Such evidence was highly relevant with respect to the girls'
credibility, a key issue at trial, since the delay in reporting to anyone
outside their family could be a basis for attacking their credibility in
claiming that appellant had sexually molested them.
Appellant maintains that the evidence ruled admissible was “unduly
prejudicial.” For purposes of Evidence Code section 352, we
reiterate that “‘prejudicial’ is not synonymous with ‘damaging,’ but
30

refers instead to evidence that ‘“uniquely tends to evoke an
emotional bias against defendant”’ without regard to its relevance on
material issues. [Citations.]” (People v. Kipp (2001) 26 Cal.4th
1100, 1121.) “In applying this statute we evaluate the ‘risk of
“undue” prejudice, that is, “‘evidence which uniquely tends to evoke
an emotional bias against the defendant as an individual and which
has very little effect on the issues,’” not the prejudice “that naturally
flows from relevant, highly probative evidence.”’ [Citations.]”
(People v. Salcido (2008) 44 Cal.4th 93, 148.)

1
2
3
4
5

Compared to the lengthy testimony detailing appellant's sexual
molestation of his stepdaughters, the testimony regarding appellant's
physical abuse was brief. Any prejudice from the evidence was not
undue, but was merely the type that naturally flows from the nature
of appellant's conduct. As such, the trial court committed no error in
admitting the evidence. (cf. People v. Harris (1998) 60 Cal.App.4th
727, 737 [painting a person faithfully is not, of itself, unfair].)

6
7
8
9

Cal. Ct. App. Opinion, pp. 21-22. The appellate court summarily rejected Mr. Raygoza’s due

11

United States District Court
Northern District of California

10

process claim. Id. at 22.

12

As the last reasoned decision from a state court, the California Court of Appeal’s decision

13

is the decision to which 28 U.S.C. § 2254(d) is applied. See Wilson, 138 S. Ct. at 1192. Mr.

14

Raygoza is entitled to habeas relief only if the California Court of Appeal’s decision was contrary

15

to, or an unreasonable application of, clearly established federal law from the U.S. Supreme Court,

16

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

17

2.

Analysis

18

The United States Supreme Court has never held that the introduction of propensity or

19

other allegedly prejudicial evidence violates due process. See Estelle v. McGuire, 502 U.S. 62,

20

68-70 (1991); id. at 75 n.5 (“we express no opinion on whether a state law would violate the Due

21

Process Clause if it permitted the use of ‘prior crimes’ evidence to show propensity to commit a

22

charged crime”).

23

In Estelle v. McGuire, the defendant was on trial for murder of his infant daughter after she

24

was brought to a hospital and died from numerous injuries suggestive of recent child abuse.

25

Defendant told police the injuries were accidental. Evidence was admitted at trial that the coroner

26

discovered during the autopsy older partially healed injuries that had occurred six to seven weeks

27

before the child’s death. Id. at 65. Evidence of the older injuries was introduced to prove

28

“battered child syndrome,” which “exists when a child has sustained repeated and/or serious
31

1

injuries by nonaccidental means.” Id. at 66. The state appellate court had held that the proof of

2

prior injuries tending to establish battered child syndrome was proper under California law. Id. In

3

federal habeas proceedings, the Ninth Circuit found a due process violation based in part on its

4

determination that the evidence was improperly admitted under state law. Id. at 66-67. The U.S.

5

Supreme Court first held that the Ninth Circuit had erred in inquiring whether the evidence was

6

properly admitted under state law because “‘federal habeas corpus relief does not lie for errors of

7

state law.’” Id. at 67. The Supreme Court then explained:

8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18

The evidence of battered child syndrome was relevant to show
intent, and nothing in the Due Process Clause of the Fourteenth
Amendment requires the State to refrain from introducing relevant
evidence simply because the defense chooses not to contest the
point. [¶] Concluding, as we do, that the prior injury evidence was
relevant to an issue in the case, we need not explore further the
apparent assumption of the Court of Appeals that it is a violation of
the due process guaranteed by the Fourteenth Amendment for
evidence that is not relevant to be received in a criminal trial. We
hold that McGuire’s due process rights were not violated by the
admission of the evidence. See Spencer v. Texas, 385 U.S. 554,
563–564, 87 S.Ct. 648, 653–654, 17 L.Ed.2d 606 (1967) (“Cases in
this Court have long proceeded on the premise that the Due Process
Clause guarantees the fundamental elements of fairness in a criminal
trial . . . . But it has never been thought that such cases establish this
Court as a rulemaking organ for the promulgation of state rules of
criminal procedure”).
Estelle v. McGuire, 502 U.S. at 70 (omission in original).
The cited case, Spencer v. Texas, 385 U.S. at 563, held that the admission of evidence of

19

prior convictions did not violate due process. The Supreme Court explained in Spencer that,

20

although there may have been other, perhaps better, ways to adjudicate the existence of prior

21

convictions (e.g., a separate trial on the priors after the trial on the current substantive offense

22

resulted in a guilty verdict), Texas’ use of prior crimes evidence in a “one-stage recidivist trial”

23

did not violate due process. Id. at 563-64. “In the face of the legitimate state purpose and the

24

long-standing and widespread use that attend the procedure under attack here, we find it

25

impossible to say that because of the possibility of some collateral prejudice the Texas procedure

26

is rendered unconstitutional under the Due Process Clause as it has been interpreted and applied in

27

our past cases.” Id. at 564.

28

Estelle v. McGuire also cited to Lisenba v. California, 314 U.S. 219, 228 (1941), in
32

1

support of the conclusion that the introduction of the battered child syndrome evidence did not so

2

infuse the trial with unfairness as to deny due process of law. See Estelle v. McGuire, 502 U.S. at

3

75. In Lisenba, the Supreme Court rejected a claim that the admission of inflammatory evidence

4

violated the defendant’s due process rights. The evidence at issue in Lisenba was live rattlesnakes

5

and testimony about them to show they had been used by the defendant to murder his wife. “We

6

do not sit to review state court action on questions of the propriety of the trial judge’s action in the

7

admission of evidence. We cannot hold, as petitioner urges, that the introduction and identification

8

of the snakes so infused the trial with unfairness as to deny due process of law. The fact that

9

evidence admitted as relevant by a court is shocking to the sensibilities of those in the courtroom
cannot, for that reason alone, render its reception a violation of due process.” Lisenba, 314 U.S. at

11

United States District Court
Northern District of California

10

228-29.

12

These three Supreme Court cases declined to hold that the admission of prejudicial or

13

propensity evidence violates the defendant’s due process rights. No Supreme Court cases since

14

Estelle v. McGuire have undermined the holdings in these three cases. In other words, there is no

15

Supreme Court holding that the admission of prejudicial or propensity evidence violates due

16

process.

17

The Supreme Court has, however, established a general principle of “fundamental

18

fairness,” i.e., evidence that “is so extremely unfair that its admission violates ‘fundamental

19

conceptions of justice’” may violate due process. Dowling v. United States, 493 U.S. 342, 352

20

(1990) (quoting United States v. Lovasco, 431 U.S. 783, 790 (1977) (due process was not violated

21

by admission of evidence to identify perpetrator and link him to another perpetrator even though

22

the evidence also was related to crime of which defendant had been acquitted)). Thus, the court

23

may consider whether the evidence was “so extremely unfair that its admission violates

24

‘fundamental conceptions of justice.’” Id.

25

In this circuit, the admission of prejudicial evidence may make a trial fundamentally unfair

26

and violate due process “[o]nly if there are no permissible inferences the jury may draw from the

27

evidence.” Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). “Evidence introduced by

28

the prosecution will often raise more than one inference, some permissible, some not; we must
33

1

rely on the jury to sort them out in light of the court’s instructions. Only if there are

2

no permissible inferences the jury may draw from the evidence can its admission violate due

3

process. Even then, the evidence must ‘be of such quality as necessarily prevents a fair trial.’

4

Only under such circumstances can it be inferred that the jury must have used the evidence for an

5

improper purpose.” Jammal, 926 F.2d at 920 (internal citation and footnote omitted).7

6

Here, the California Court of Appeal reasonably could have determined that the admission

7

of evidence of Mr. Raygoza’s physical abuse of the victims and their mother did not meet the very

8

demanding standard of being so extremely unfair that its admission violated fundamental

9

conceptions of justice. There were permissible inferences about the credibility of the victims that

10

could be drawn from the evidence.

United States District Court
Northern District of California

11

The evidence was relevant because it aided the jury in assessing the three victims’

12

credibility, as the California Court of Appeal explained in discussing the state law claims. Each

13

victim had delayed in reporting the sexual abuse by Mr. Raygoza, and each testified that Mr.

14

Raygoza had physically abused the girl, her sisters or her mother. And each stated that Mr.

15

Raygoza’s physical abuse contributed to her fear of him.

16
17
In Jammal, the police found a gun, $47,000 and drugs in the trunk of Jammal’s stolen car when
they arrested Willis, who had stolen Jammal’s car; 18 months later, the police found $135,000 (but
no drugs) in the trunk of Jammal’s car when they arrested Jammal. At trial, Willis said he had no
idea the drugs and money were in the trunk of Jammal’s stolen car until police opened it. The
prosecution urged the jury to infer that both the drugs and the $47,000 found in the trunk of
Jammal’s car when Willis was arrested belonged to Jammal since Jammal later was arrested also
with a large stash of cash in his trunk. Jammal unsuccessfully objected that this evidence
effectively branded him a drug dealer and was therefore inadmissible character evidence. The
Ninth Circuit explained that state law evidence rules were beside the point in a federal habeas
proceeding and any problem in the jury inferring that Jammal had put the $47,000 and drugs in the
car earlier (even if impermissible under state law) was not a constitutional problem because the
inference that Jammal had put both the $47,000 and drugs in the trunk on an earlier occasion was a
“rational inference” the jury could draw from the evidence that he was caught with $135,000 in his
trunk. Jammal, 926 F.2d at 920.
7

18
19
20
21
22
23
24
25
26
27
28

Jammal is one of the few cases that gives any guidance as to what might amount to the
introduction of evidence that might amount to fundamental unfairness. The Ninth Circuit
continues to use the Jammal “permissible inference” test in habeas cases governed by the AEDPA.
See, e.g., Noel v. Lewis, 605 F. App’x 606, 608 (9th Cir. 2015) (admission of gang evidence did
not violate due process); Lundin v. Kernan, 583 F. App’x 686, 687 (9th Cir. 2014) (citing Jammal
and concluding that admission of graffiti evidence did not violate due process because there were
permissible inferences to be drawn); Gonzalez v. Knowles, 515 F.3d 1006, 1011 (9th Cir. 2008)
(citing Jammal and concluding that evidence of prior bad acts did not violate due process).
34

1

The evidence of Mr. Raygoza’s physical abuse bolstered each victim’s credibility because

2

it tended to show that the delay in reporting did not mean that the sexual abuse had not occurred.

3

The physical abuse information would provide an answer for jurors who were skeptical as to why

4

a victim had put up with the sexual abuse and had waited so long to report it if sexual abuse that

5

bad was occurring. By learning that Mr. Raygoza beat the victims and their mother when angry,

6

the jury might be more understanding of the victims’ reluctance to report him to authorities and

7

give greater weight to their reports of abuse. The evidence let the jury learn the facts that would

8

enable them to evaluate the source of the victims’ claimed fear of Mr. Raygoza and its effect on

9

the witness. Cf. United States v. Abel, 469 U.S. 45, 52 (1984) (“Bias may be induced by a
witness’ like, dislike, or fear of a party, or by the witness’ self-interest. Proof of bias is almost

11

United States District Court
Northern District of California

10

always relevant because the jury, as finder of fact and weigher of credibility, has historically been

12

entitled to assess all evidence which might bear on the accuracy and truth of a witness’

13

testimony.”); e.g., id. (defendant’s and witness’ membership in a prison gang supported the

14

inference that witness’ testimony “was slanted or perhaps fabricated in respondent’s favor”); Jones

15

v. McGrath, 276 F. App’x 593, 593 (9th Cir. 2008) (“[Petitioner] contends that the trial court

16

violated his due process rights by admitting evidence that a prosecution witness feared that

17

[Petitioner] would have him killed if he testified. . . . Because testimony about the witness' fear of

18

[Petitioner] is relevant under Abel, we cannot agree with [Petitioner's] contention that the state

19

court decision was ‘contrary to, or involved an unreasonable application of’ Supreme Court

20

precedent.”).

21

It is true the trial court did not give a limiting instruction to the jury that the physical-abuse

22

evidence could only be used for the purpose of evaluating the witnesses’ credibility. But this does

23

not entitle Mr. Raygoza to relief; so long as there was a permissible inference that could be drawn

24

from the evidence – i.e., that the victims’ delayed reporting of the sexual abuse was not because

25

the reports were fabricated but instead was due to their fear of Mr. Raygoza based on his past acts

26

of violence toward them and their mother – no federal constitutional claim is clearly stated. See

27

Jammal, 926 F.2d at 920 (admission of evidence violates due process only if there are no

28

permissible inferences the jury may draw from that evidence).
35

Even if a constitutional claim could be stated, habeas relief would not be warranted

2

because, as discussed above, the United States Supreme Court has never held that the introduction

3

of propensity or other allegedly prejudicial evidence violates due process. See generally Holley v.

4

Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (denying habeas relief upon finding that trial

5

court’s admission of irrelevant pornographic materials was “fundamentally unfair” under Ninth

6

Circuit precedent but not contrary to, or an unreasonable application of, clearly established Federal

7

law under § 2254(d)); Alberni v. McDaniel, 458 F.3d 860, 865 (9th Cir. 2006) (denying habeas

8

relief on claim that due process was violated by admission of evidence of defendant’s past violent

9

actions and explosive temper to show propensity due to Estelle v. McGuire’s reservation of the

10

question whether propensity evidence violates due process); Moses v. Payne, 555 F.3d 742, 760

11

United States District Court
Northern District of California

1

(9th Cir. 2009) (holding that, where balancing test for excluding evidence is creation of Ninth

12

Circuit law and Supreme Court has not directly considered whether trial court’s exercise of

13

discretion to exclude evidence violated defendants’ constitutional right to present evidence, state

14

court’s failure to use Ninth Circuit’s balancing test is not contrary to or an unreasonable

15

application of clearly established Supreme Court precedent).
Further, the Court notes that the physical-abuse evidence was not central to the trial. The

16
17

prosecutor did not argue that Mr. Raygoza had a bad character or had a propensity to commit

18

crimes because he had physically abused the victims and their mother. Instead, the prosecutor’s

19

mention of the physical abuse was only to show how it was related to the victims’ credibility about

20

their reports of sexual abuse. The prosecutor alluded to the physical abuse to explain why the

21

victims were afraid of Mr. Raygoza, endured his sexual abuse, and delayed in reporting the sexual

22

abuse.8

23
24
25
26
27
28

8

The prosecutor mentioned the physical abuse a few times in his closing argument. In discussing
the testimony of Jane I, the prosecutor argued: “So you had fear of physical abuse, you had fear
that he would start going farther than that, okay, in a sexual way. Fear of further sexual abuse,
fear of her mom getting hurt. All of this helps you understand why the situation was what it was.”
RT 2154. In discussing the testimony of Jane II, the prosecutor argued: “[Jane II] gave you
evidence of her fear of why this was occurring. How is it possible? How can this occur in any
household? Well, people are scared.” RT 2170-71.
The prosecutor also argued that the victims’ mother was an enabler, whose inaction
allowed the sexual abuse to continue: “That’s why things like this happen. People don’t react.
36

1

The California Court of Appeal reasonably could have concluded there was no due process

2

violation using the same reasoning it used to reject the state law claims: the jury could use the

3

physical abuse evidence to assess the victims’ credibility and state of mind at the time they spoke

4

to the police and investigator as well as at trial. The jury could draw the inference that the victims

5

were being truthful in their testimony that Mr. Raygoza had sexually abused them, even though

6

they did not report that abuse at the moment it happened and even though their descriptions of

7

some details of the sexual abuse incidents had some inconsistencies with their statements to the

8

police and investigator about the same incidents. Because this inference is permissible, the state

9

appellate court did not unreasonably apply Supreme Court authorities in holding that the

10

United States District Court
Northern District of California

11

admission of the evidence did not violate due process. See Jammal, 926 F.2d at 920.
“[E]valuating whether a rule application was unreasonable requires considering the rule’s

12

specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-

13

by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Bearing in mind

14

the extremely general nature of the Supreme Court’s articulation of a principle of “fundamental

15

fairness” – i.e., evidence that “is so extremely unfair that its admission violates ‘fundamental

16

conceptions of justice’” may violate due process, see Dowling, 493 U.S. at 352 – the California

17

Court of Appeal’s rejection of Mr. Raygoza’s due process claim was not contrary to or an

18

unreasonable application of federal law clearly established by the Supreme Court as discussed

19

above. See generally Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (denying writ

20

because, although Supreme Court “has been clear that a writ should be issued when constitutional

21

errors have rendered the trial fundamentally unfair, it has not yet made a clear ruling that

22

admission of irrelevant or overtly prejudicial evidence constitutes a due process violation

23

sufficient to warrant issuance of the writ.” (internal citation omitted)). Mr. Raygoza is not entitled

24
25
26
27
28

People don’t do anything. And that describes [the mother]. At that time she just did not have the
tools to protect her children. And you know why.” RT 2177. The victims’ mother had testified
that Mr. Raygoza had taken away her cell phone so she could not contact police, RT 1607, 161112, had hit her in the nose three times when she confronted him about the girls’ accusations that he
was touching them inappropriately, RT 1569-70, and had refused to leave the home, RT 1569.
The victims’ mother also had testified that she was using drugs during the time period 2005-2009.
RT 1607-08.
37

1

to the writ on this claim.

2

E.

Prosecutorial Misconduct Claim

3

Mr. Raygoza contends that the prosecutor vouched for the truthfulness of the victims and

4

that this vouching amounted to prosecutorial misconduct in violation of his right to due process.

5

1.

Background

6

Three statements made by the prosecutor in his closing argument are challenged. First, the

7

prosecutor argued: “There's so much more evidence in this case to make [the] conclusion [that

8

Mr. Raygoza is guilty]. But that ultimately in the end is your basic conclusion, because [Jane I]

9

has been telling the truth.” RT 2134. Defense counsel’s objection was overruled. RT 2134.
Second, the prosecutor argued: “[Jane I]'s telling you she's being touched. She's telling the truth.

11

United States District Court
Northern District of California

10

You have to determine whether she's telling the truth or not. You get a credibility instruction.

12

And there's absolutely no reason to disbelieve her.” RT 2139. Defense counsel did not object

13

when this statement was made. Third, while referring to statements Mr. Raygoza made during a

14

police interview, the prosecutor argued: “The value in this [i.e., the statement by Mr. Raygoza] is

15

it leaves you with an abiding conviction that everything is true. That the girls aren't making this

16

up.” RT 2152. Defense counsel did not object to this argument.

17
18
19
20
21
22
23
24
25
26
27
28

The California Court of Appeal rejected Mr. Raygoza’s prosecutorial misconduct claim,
finding that the comments did not amount to vouching.
A prosecutor's misconduct violates the Fourteenth Amendment to
the United States Constitution when it “infects the trial with such
unfairness as to make the conviction a denial of due process.”
(People v. Morales (2001) 25 Cal.4th 34, 44; accord, Darden v.
Wainwright (1986) 477 U.S. 168, 181; Donnelly v. DeChristoforo
(1974) 416 U.S. 637, 643.) In other words, the misconduct must be
“of sufficient significance to result in the denial of the defendant's
right to a fair trial.” (United States v. Agurs (1976) 427 U.S. 97,
108.) A prosecutor's misconduct that does not render a trial
fundamentally unfair nevertheless violates California law if it
involves “the use of deceptive or reprehensible methods to attempt
to persuade either the court or the jury.” (People v. Strickland
(1974) 11 Cal.3d 946, 955; accord, People v. Farnam (2002) 28
Cal.4th 107, 167.)
“A prosecutor may comment upon the credibility of witnesses based
on facts contained in the record, and any reasonable inferences that
can be drawn from them, but may not vouch for the credibility of a
witness based on personal belief or by referring to evidence outside
38

the record. [Citations.]” (People v. Martinez (2010) 47 Cal.4th 911,
958.) To put it another way, “[p]rosecutorial assurances, based on
the record, regarding the apparent honesty or reliability of
prosecution witnesses, cannot be characterized as improper
‘vouching,’ which usually involves an attempt to bolster a witness
by reference to facts outside the record. [Citation.]” (People v.
Medina (1995) 11 Cal.4th 694, 757.) . . .

1
2
3
4

Before each of the three statements that appellant characterizes as
vouching, the prosecutor outlined specific evidence that the jury had
heard. Before the first statement the prosecution had reviewed
excerpts of Jane I's testimony and told the jury that the law
permitted the jury to convict on the testimony of one witness.
Immediately thereafter, the prosecutor told the jury, “Keep in mind
there's other evidence. But that's your basic analysis. That's how
you determine whether somebody's guilty of a charge or not. And
we haven't gone over [appellant's] statement. We haven't gone over
[Jane II]'s testimony, [Jane I]'s [sic] testimony, Eric's, [mother’s].
There's so much more evidence in this case to make that
conclusion.” As to the second statement, the prosecutor replayed a
portion of the videotaped conversation where appellant admitted to a
detective that he touched Jane I on the thigh while at a hotel.
Immediately before the statement to which appellant objects, the
prosecutor commented, “So there's touching going on. Corroborates
[Jane I]'s testimony. Defendant tells you that she's being touched.”
As to the third statement, the prosecutor replayed another clip from
the same videotaped conversation in which appellant described two
separate occasions where he touched Jane I's buttocks. The
prosecutor explained the significance of the evidence as being “the
value of the defendant's statement is not necessarily—he's not
necessarily coming clean completely clean to Detective Bravo. The
value in this is it leaves you with an abiding conviction that
everything is true.”

5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17

Rather than vouching for the witnesses’ truthfulness based on his
personal belief, in all three instances the prosecutor was pointing out
the strength of the corroborating evidence from which the jury could
be sure that the witnesses were telling the truth. We find no
prosecutorial misconduct. (Bonilla, supra, 41 Cal.4th at p. 337.)

18
19
20
21
22

Cal. Ct. App. Opinion at 22-25.
As the last reasoned decision from a state court, the California Court of Appeal’s decision

23

is the decision to which 28 U.S.C. § 2254(d) is applied. See Wilson, 138 S. Ct. at 1192. Mr.

24

Raygoza is entitled to habeas relief only if the California Court of Appeal’s decision was contrary

25

to, or an unreasonable application of, clearly established federal law from the U.S. Supreme Court,

26

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

27

2.

Analysis

28

The appropriate standard of review for a prosecutorial misconduct claim in a federal
39

1

habeas corpus action is the narrow one of due process and not the broad exercise of supervisory

2

power. Darden v. Wainwright, 477 U.S. 168, 181 (1986) (“it ‘is not enough that the prosecutors’

3

remarks were undesirable or even universally condemned’”). “The relevant question is whether

4

the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting

5

conviction a denial of due process.’” Darden, 477 U.S. at 181 (quoting Donnelly v.

6

DeChristoforo, 416 U.S. 637 (1974)); see Smith v. Phillips, 455 U.S. 209, 219 (1982) (“the

7

touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of

8

the trial, not the culpability of the prosecutor.”). Under Darden, the inquiry is whether the

9

prosecutor’s remarks were improper and, if so, whether the comments infected the trial with
unfairness. Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005). The “Darden standard is a very

11

United States District Court
Northern District of California

10

general one, leaving courts ‘more leeway . . . in reaching outcomes in case-by-case

12

determinations.’” Parker v. Matthews, 567 U.S. 37, 48 (2012) (omission in original) (quoting

13

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
“Vouching consists of placing the prestige of the government behind a witness through

14
15

personal assurances of the witness’s veracity, or suggesting that information not presented to the

16

jury supports the witness’s testimony.” United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir.

17

1993).

22

The prosecutor’s vouching for the credibility of witnesses and
expressing his personal opinion concerning the guilt of the accused
pose two dangers: such comments can convey the impression that
evidence not presented to the jury, but known to the prosecutor,
supports the charges against the defendant and can thus jeopardize
the defendant's right to be tried solely on the basis of the evidence
presented to the jury; and the prosecutor's opinion carries with it the
imprimatur of the Government and may induce the jury to trust the
Government's judgment rather than its own view of the evidence.

23

United States v. Young, 470 U.S. 1, 18–19 (1985). The vouching in Young consisted of numerous

24

instances of the prosecutor expressing his personal opinion during closing argument. See id. at 5

25

(prosecutor argued: “‘I think [defense counsel] said that not anyone sitting at this table thinks that

26

Mr. Young intended to defraud Apco. Well, I was sitting there and I think he was.’”); id. (in

27

response to defense counsel’s statement that company was not defrauded, prosecutor argued: “‘I

28

don’t know what you call that, I call it fraud. . . . I think it’s a fraud.’”); id. (after recapping some

18
19
20
21

40

1

of defendant’s conduct, prosecutor argued: “‘I don’t know whether you call it honor and integrity.

2

I don’t call it that, [defense counsel] does.’”). Young held the prosecutor’s remarks were error but

3

did not constitute plain error so as to require reversal. Id. at 20.9 See also Hein v. Sullivan, 601

4

F.3d 897, 913 (9th Cir. 2010) (denying habeas relief; prosecutor vouched for witness’ credibility

5

when he described the witness as a “‘very powerful and credible witness,’” who was “‘painfully

6

honest,’” was “‘the model of a perfect witness,’” was “‘so honest about it,” and possessed “the

7

kind of integrity that our system would like to see.’”); United States v. Weatherspoon, 410 F.3d

8

1142, 1146 (9th Cir. 2005) (reversing conviction; prosecutor clearly urging that the existence of

9

legal and professional repercussions served to ensure the credibility of the officers’ testimony
“suffices for the statement to be considered improper as vouching based upon matters outside the

11

United States District Court
Northern District of California

10

record”); id. at 1147 (prosecutor’s argument that defense witness’ original statements were truthful

12

and current testimony “‘about being threatened I don’t believe is truthful, ladies and gentlemen,’”

13

was improper vouching because it went beyond a reasonable inference from the evidence and

14

placed the prestige of the government behind the witness by providing personal assurances of a

15

witness’s veracity”); United States v. Necoechea, 986 F.2d 1273, 1278-79 (9th Cir. 1993)

16

(prosecutor’s reference to provision of witness’ plea agreement that required witness “to testify

17

truthfully” was vouching in that it mildly implied “that the government can guarantee [the

18

witness’] truthfulness” and prosecutor’s closing argument that referred to matters (i.e., the

19

resolution of other cases) outside the record was vouching, but the errors did not amount to plain

20

error requiring reversal when considered in light of the jury instruction and the context of the

21

trial). But see, e.g.¸ Necoechea, 986 F.2d at 1279 (prosecutor’s argument, “I submit to you, ladies

22

and gentlemen, that [witness is] not lying. I submit to you that she’s telling the truth” did not

23

amount to vouching and was instead “simply an inference from evidence in the record. . . . These

24

statements do not imply that the government is assuring [this witness’] veracity, and do not reflect

25
26
27
28

9

Young was decided under the Federal Rules of Criminal Procedure, rather than under federal
constitutional law, see Young, 470 U.S. at 6-7, 15, but the standard used was comparable to the
Darden standard for a due process prosecutorial misconduct claim. Young determined that the
prosecutor’s remarks did not amount to plain error because “the prosecutor’s statements, although
inappropriate and amounting to error, were not such as to undermine the fundamental fairness of
the trial and contribute to a miscarriage of justice.” Young, 470 U.S. at 16.
41

1
2

the prosecutor’s personal beliefs.”).
Although vouching is frowned upon, “[a]t the same time, [courts] have recognized that

3

prosecutors must have reasonable latitude to fashion closing arguments, and thus can argue

4

reasonable inferences based on the evidence, including that one of the two sides is lying.”

5

Necoechea, 986 F.2d at 1276.

6

The California Court of Appeal’s rejection of Mr. Raygoza’s prosecutorial misconduct
claim was not contrary to, or an unreasonable application of, clearly established law from the U.S.

8

Supreme Court. The state appellate court cited Darden, identified the correct standard for

9

evaluating a claim of prosecutorial misconduct, and reasonably applied that standard. It was not

10

an unreasonable application of Darden or Young for the California Court of Appeal to conclude

11

United States District Court
Northern District of California

7

that there was no vouching because each of the three challenged statements was a fair comment on

12

specific evidence that the prosecutor had just outlined.

13

Viewed in context, each challenged statement reasonably could be seen as an effort to urge

14

a reasonable inference that the other trial evidence corroborated and showed the truthfulness of the

15

witness’ statement. Just before making the first challenged statement (i.e., that Jane I “has been

16

telling the truth”), the prosecutor had (a) quoted at length Jane I’s testimony about the incident in

17

which Mr. Raygoza had climbed atop her and moved his body up and down against her body, and

18

(b) applied the law to those facts to argue that the incident was a sexual event. RT 2131-34. The

19

prosecutor continued:

20
21
22
23
24

Your conclusion should be defendant is guilty of committing a lewd
act on a child 13 or under, she was 11, against [Jane I] based on
those facts. Keep in mind there’s other evidence. But that’s your
basic analysis. That’s how you determine whether somebody’s
guilty of a charge or not. And we haven’t gone over his statement.
We haven’t gone over [Jane III’s] testimony, [Jane I’s] [sic]
testimony, Eric’s, [mother[‘s]]. There’s so much more evidence in
this case to make that conclusion. But that ultimately in the end is
your basic conclusion, because [Jane I] has been telling the truth.

25

RT 2134 (emphasis added). The California Court of Appeal reasonably determined that the

26

prosecutor was making a fair comment on the evidence in the record by pointing out the strength

27

of the corroborating evidence from which the jury could be sure that Jane I was telling the truth.

28

The second challenged statements (i.e., that Jane I was “telling the truth” and there was “no
42

1

reason to disbelieve her”) also were made just after the prosecutor had covered specific evidence.

2

The prosecutor (a) quoted at length Jane I’s testimony about the incident in which Mr. Raygoza

3

rubbed her thigh while she was asleep, and (b) played the portion of the police interview DVD in

4

which Mr. Raygoza “demonstrates how he touched [Jane I] at a hotel on the leg and foot area.”

5

RT 2137-39. The prosecutor then continued:

6
7
8
9

So there’s touching going on. Corroborates [Jane I’s] testimony.
Defendant tells you that she’s being touched. [Jane I’s] telling you
she’s being touched. She’s telling the truth. You have to determine
whether she’s telling the truth or not. You get a credibility
instruction. And there’s absolutely no reason to disbelieve her.
RT 2139 (emphasis added). The California Court of Appeal reasonably determined that the
prosecutor was making a fair comment on the evidence in the record by pointing out the strength

11

United States District Court
Northern District of California

10

of the corroborating evidence from which the jury could be sure that Jane I was telling the truth.

12

Moreover, in this instance, the prosecutor even reminded jurors that they had to determine whether

13

the witness was telling the truth and that they would receive an instruction about making that

14

determination – making it even less likely that jurors would have failed to make their own

15

credibility determination.

16

The third challenged statement (i.e., “the girls aren’t making this up”) also followed

17

shortly after the prosecutor described specific evidence. The prosecutor (a) quoted at length Jane

18

I’s testimony about Mr. Raygoza touching her buttocks and breasts, and (b) played an excerpt

19

from the police interview DVD in which Mr. Raygoza “confirms the touching.” RT 2150-51.

20

The prosecutor continued:

21
22
23
24
25
26
27
28

And the clip I just showed you, it’s around the same part of the
interview. Detective Bravo had asked the defendant to clarify the
touching of the breast that [Jane I] also said he touched her on the
butt. The defendant goes on to define a separate event where he
touched [Jane I] on the butt. The bottom line in all that, the value of
the defendant’s statement is not necessarily – he’s not necessarily
coming clean completely clean to Detective Bravo. The value in
this is it leaves you with an abiding conviction that everything is
true. That the girls aren’t making this up. That’s the real value in
this. And later on I’m going to tell you – I’m going to give you
portions of his statement where he tells you what his intent was. So
difficult to figure out what people intend on doing. But this
defendant tells us. And that’s the true value of the defendant’s
statement, his admission.
43

1

RT 2151-52 (emphasis added). The California Court of Appeal reasonably determined that the

2

prosecutor was making a fair comment on the evidence in the record by pointing out the strength

3

of the corroborating evidence – here, Mr. Raygoza’s own admissions to the police about both the

4

touching and his intent -- from which the jury could determine that the victims were truthful. The

5

prosecutor’s argument appropriately tried to get the jury to understand that Mr. Raygoza’s own

6

statement to the police admitting a touching, and his intent showed that the victims were not

7

fabricating their stories of having been touched improperly by Mr. Raygoza.

8

In none of these challenged statements did the prosecutor do the things that are typically
thought of as vouching. The prosecutor did not tell the jury that he personally believed the girls –

10

he did not state, for example, “I believe the girls are telling the truth.” And the prosecutor did not

11

United States District Court
Northern District of California

9

in any way suggest that there was evidence not presented to the jury that supported the victims’

12

credibility or showed the defendant’s guilt. The prosecutor’s comments were reasonable

13

inferences from the trial evidence he identified that showed the witnesses’ credibility by

14

corroborating their statements. See Necoechea, 986 F.2d at 1279 (prosecutor’s argument, “I

15

submit to you, ladies and gentlemen, that [witness is] not lying. I submit to you that she’s telling

16

the truth” did not amount to vouching and instead “is simply an inference from evidence in the

17

record. . . . These statements do not imply that the government is assuring [this witness’] veracity,

18

and do not reflect the prosecutor’s personal belief.”).

19

Further, the jury instructions informed the jurors that it was their duty to determine witness

20

credibility from the evidence. The judge instructed the jury: “You alone must judge the

21

credibility or believability of the witnesses.” CT 407. The judge also instructed the jury:

22

“Nothing that the attorneys say is evidence. In their opening statements and closing arguments,

23

the attorneys discuss the case, but their remarks are not evidence.” CT 404. The judge further

24

instructed that jurors “must follow the law as I explain it to you, even if you disagree with it. If

25

you believe that the attorneys’ comments on the law conflict with my instructions, you must

26

follow my instructions.” CT 398. “[A]rguments of counsel generally carry less weight with a jury

27

than do instructions from the court. The former are usually billed in advance to the jury as matters

28

of argument, not evidence . . . and are likely viewed as the statements of advocates,” whereas the
44

1

latter “are viewed as definitive and binding statements of the law.” Boyde v. California, 494 U.S.

2

370, 384-85 (1990). Mr. Raygoza has provided no reason to depart from the normal presumption

3

that jurors follow the court’s instructions. See Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985).

4

In other words, he has provided no reason to expect that the jurors did not understand that they,

5

not the prosecutor, were the sole determiners of the believability of a witness. Following their

6

instructions, jurors would not have believed that they could rely on the prosecutor’s statements

7

that the victim-witnesses were believable and avoid determining for themselves whether the

8

victim-witnesses were believable.
The Darden standard – “a prosecutor’s improper comments will be held to violate the

9

Constitution only if they so infected the trial with unfairness as to make the resulting conviction a

11

United States District Court
Northern District of California

10

denial of due process” -- is a “very general one.” Parker, 567 U.S. at 45, 48 (citations and internal

12

quotation marks omitted). That means that, for purposes of federal habeas review under AEDPA,

13

the state courts have “more leeway . . . in reaching outcomes in case-by-case determinations.” Id.

14

(citations and internal quotation marks omitted). It cannot be said that the California Court of

15

Appeal’s rejection of Mr. Raygoza’s prosecutorial misconduct claim was contrary to or an

16

unreasonable application of Darden. He is not entitled to the writ on this claim.

17

F.

Cumulative Error Claim
Mr. Raygoza contends that the cumulative effect of the errors prevented him from

18
19

receiving a fair trial. In some cases, although no single trial error is sufficiently prejudicial to

20

warrant reversal, the cumulative effect of several constitutional errors may still prejudice a

21

defendant so much that his conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862,

22

893–95 (9th Cir. 2003) (reversing conviction where multiple constitutional errors hindered

23

defendant’s efforts to challenge every important element of proof offered by prosecution). Here,

24

there were not multiple federal constitutional trial errors to accumulate. Mr. Raygoza therefore is

25

not entitled to relief under the cumulative error doctrine.

26

G.

27
28

No Certificate of Appealability
A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in

which “reasonable jurists would find the district court’s assessment of the constitutional claims
45

1

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

2
3
4

CONCLUSION

For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The Clerk
shall close the file.

5
6

IT IS SO ORDERED.

7
8

Dated: November 15, 2018

9
10

United States District Court
Northern District of California

11

______________________________________
EDWARD M. CHEN
United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
46