Trujillo v. Grounds

Filing 53

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS re 1 Petition for Writ of Habeas Corpus filed by Amado Reyes Trujillo, ***Civil Case Terminated. Signed by Judge Claudia Wilken on 8/5/15. (napS, COURT STAFF) (Filed on 8/5/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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AMADO REYES TRUJILLO,

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Petitioner,

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ORDER DENYING
PETITION FOR WRIT
OF HABEAS CORPUS

v.
RANDY GROUNDS, Warden,

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No. C 11-1908 CW

Respondent.
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United States District Court
For the Northern District of California

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Petitioner Amado Reyes Trujillo, a state prisoner, filed this

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petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,

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challenging his state criminal conviction and asserting four

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claims of constitutional error.

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Respondent has filed an answer

and a memorandum of points and authorities in support thereof and
Petitioner, through appointed counsel, has filed a traverse.

For

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the reasons discussed below, the Court DENIES the petition.
BACKGROUND

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I.

Procedural History
On January 22, 2003, a Santa Clara County jury found

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Petitioner guilty of one count of lewd and lascivious conduct upon

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a child under the age of fourteen and found that he had been

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previously convicted of the same offense.

On May 30, 2003, the

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trial court sentenced Petitioner to fifty years to life in prison.
Represented by counsel, Petitioner filed a direct appeal to the
California Court of Appeal, raising five grounds: (1) that

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permitting a prosecution witness to testify with a support person

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violated Petitioner's right to a fair trial; (2) that the trial

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court violated Petitioner's constitutional rights by admitting

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hearsay evidence; (3) that the trial court violated Petitioner's

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right to due process and confrontation by admitting evidence of a

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defense witness's prior misdemeanor conviction; (4) that the trial
court violated Petitioner's constitutional rights by admitting

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prior hearsay statements of a prosecuting witness; and (5) that

United States District Court
For the Northern District of California

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the trial court invaded the province of the jury by directing a

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verdict on the prior strike allegation.

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Court of Appeal affirmed Petitioner's judgment in an unpublished

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decision.

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denied Petitioner's petition for review of the denial of his

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On October 21, 2004, the

On February 2, 2005, the California Supreme Court

direct appeal.

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On July 26, 2010, Petitioner, proceeding pro se, filed a

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state habeas petition arguing entitlement to relief based upon

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claims (1), (2), (3) and (5), above.

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denied the petition on February 26, 2011.

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The California Supreme Court

Petitioner filed the instant habeas petition on April 20,
2011.
II.

Statement of Facts
The following facts (including footnotes) are taken from the

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California Court of Appeal decision denying Petitioner's direct
appeal.

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Between April 1 and October 1, 2001,1 defendant
frequently visited the San Jose three-bedroom home where
12-year-old Angela and her sister Anays, who celebrated
her ninth birthday during that six-month period,2 lived
with their mother Anna, their father, and their twoyear-old brother. Anna, a homemaker at the time, became
pregnant that summer and gave birth to a daughter in
March 2002. Sonja G. stayed with the family and
occupied a bedroom from April until she moved out
several months later. Angela and Anays shared the
second bedroom, and Anna, her husband, and their son
shared the third. Sonja's boyfriend Juan often was at
the house to visit Sonja. Defendant was Juan's friend.

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Anna testified she had been married for six years
and that she and her husband lived together during the
six-month period, but he worked two jobs and "wasn't
around the house very much." While Sonja rented from
her, Anna considered her to be a "good friend" with whom
she had no conflicts. Anna met defendant in April.
During the six-month period, he came to the house a few
times a week while Sonja lived there, sometimes with
Juan, more often alone. He helped by cleaning the
backyard once a week since Anna's husband was busy and
the pregnancy restricted her activities; because she did
not pay him and he had no car, Anna gave defendant rides
"[t]wice a week."
Anna said Anays and Angela customarily came home
from school by 2:45 p.m., and defendant customarily came
over in the late afternoon about three or four times a
week. Anna initially was unconcerned that the girls
spent time with defendant in the backyard since
everything seemed "normal" when she checked; she also
had been unconcerned when he was alone with Anays
outside since the yard was mostly visible from inside
and she often checked on them. Anna thought defendant
got along with both girls and spent equal time with
them, but she noted that defendant "ask[ed] more about
Anays" and why Anna paid "a lot of attention" to her.
He bought more things for Anays, promised to help Anays
build a house for the family puppy, and said Anays
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All further calendar references are to the year 2001 unless
otherwise specified.
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Hereinafter, we refer to the period between April and
November as "the six-month period."
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reminded him of his daughter who had died. Only after
Anays reported having been touched did Anna learn that
defendant previously had been convicted of child
molestation.
Anna, her children, Sonja, Juan, and defendant
often did things "as a group." They all ate at a
Chinese restaurant once a week, and they all often went
to a weekend flea market. Anna testified both girls
were happy to receive defendant's gifts of candy and
bicycles. Anna first said defendant often gave Anays
five dollars but gave no money to Angela. On crossexamination, Anna said defendant only gave Anays money
once and that she then asked him not to give her
children money.
Anna said she and defendant were not romantically
involved and her husband knew she was faithful. She
said her husband could "provide" for her, and she denied
having financial problems during the time she knew
defendant, taking or borrowing money from him, owing him
money, or picking up money at his house. Anna did admit
that defendant often paid the restaurant bill and
brought food to the house, but she denied he gave her
$600 as a prepayment when she had agreed to rent him a
room but then said "no" once her husband rejected the
idea. She said defendant offered her a loan when he was
going to rent the room but she "didn't take it."
Anna described four incidents relevant to the
charge involving Anays.

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Anna said one occurred at the flea market near the
end of the six months. She said defendant, while
hugging Anays, twice "squeeze[d] her tight and [would]
not let her loose." Anna said she spoke to defendant
about this but acknowledged she first reported the
hugging incident at trial. After the hugging but before
Anays reported the molestations, Anna was in her kitchen
when she saw defendant walk over and rub his hand up and
down Anays' bare upper thigh as she lay on a sofa
wearing shorts. When defendant sat on sofa near Anays'
feet and continued the rubbing, Anna overheard Anays
tell defendant "not to touch her legs." Anna also got
angry and "made [defendant] leave" the house. No one
else was in the room. Anna testified Sonja and Juan
were in the house and that she asked them that day if
they ever had seen defendant do anything else to Anays.
After this incident, Anna saw defendant enter the girls'
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room without permission. While he was helping Juan,
Anna had given him permission to use her front bathroom.
Later, while Anna was towards the back doing laundry,
she saw defendant in the girls' room. Anna testified
defendant was not "where he had told [her] he was going
to be" and that she "took him out of there very mad."
Anna said defendant did not shut the door of the girls'
room; she was not asked nor did not say whether Anays
was in her room at the time defendant entered it. On
October 1, two days before Anays reported the touching,
Anays was in the backyard when defendant unexpectedly
arrived and said he needed to measure the broken back
fence. He stayed until 6:30 p.m. When he left and Anna
called Anays to come in from the backyard, Anays asked
if defendant had left because she did not want to come
in until he was gone. Anays seemed "mad." She refused
to eat and went to her room. Anna noted that, before
Anays reported the molestations, she had become
depressed, "mad" and "aggressive," and that the last few
times defendant came over, Anays hid or sat on the shed
roof to avoid being in the house with him.
Anna testified defendant telephoned after he was
told to leave the house, asked for forgiveness and said
he "had not done it with any bad intentions." On
October 3, he and Juan came over, but defendant only
stayed a half hour because Anna told Juan she "did not
like what was happening." While defendant was there,
Anna heard him ask Anays to come down from the shed's
roof so he could "take her to the Chinese food place"
and heard Anays said "no." After he left, Anays told
Anna she did not want defendant at the house because he
"had touched her private parts." She said he touched
her "breast area under her clothes" and below her waist
in front. She pointed to the areas without providing
many details; Anna did not ask for more since they were
crying. Anays did say the touching occurred in the
house and when he grabbed her as they played in the
yard.
After speaking with Anays, Anna drove off looking
for defendant "to hit him and insult him," but an
officer stopped her and asked if she felt all right.
When she explained her "problem," he said to go home and
call the police. That officer called the police, and
other officers came to the house that day. Anna tried
to tell a female officer everything Anays had reported,
but, because she was confused and emotional, Anna failed
to mention the leg-rubbing incident or defendant's entry
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into the girls' room. Anna said she later mentioned the
leg-rubbing incident to a sheriff's technician who
served the subpoena.
Anna was impeached with following acts of prior bad
conduct: (1) she gave a false name to police in 1994,
(2) she took pacifiers from a market without paying in
2000, and (3) she fraudulently obtained $3,895 worth of
food stamps and welfare checks from 1995 to 1997. Anna
testified she did not recall giving a false name to
police, she had had money to pay for the pacifiers and
did not intend to steal them, and she fraudulently
obtained government assistance because the girls' father
had left and she needed the money and that, because she
paid full restitution "before the due date," the offense
was reduced to a misdemeanor.
When Detective David Lee interviewed Anays at her
school on October 16, she described an incident at the
flea market when her mother, Sonja, and Juan were
"buying some stuff" and she was at a table next to
defendant. Anays said defendant told her to take off
her pants, touched her breast on top of her "rainbow
colored T-shirt," and touched her "bottom" on the part
she uses to "pee" on "top of the clothing." Anays said
neither of them said anything. Anays next described an
incident after school when defendant touched her while
she was alone in her bedroom. Anays was reading when he
silently entered her room. After asking where the
hammer was, he knelt and rubbed Anays' bare thigh with
his hand. Anna then called defendant, and he called
back; Anays begged him to go, but he would not leave
until Anna kept calling him. Anays described a third
incident when defendant touched her in the backyard. He
unbuttoned her shirt and tried to touch her breast so
she jumped over the fence. Anays said defendant touched
or tried to touch her "whenever he [came] over," that
she told her mother about the touching after watching a
program about a girl who got pregnant, and that her
mother then "went to find a cop."
A redacted copy of the statement Anays gave to
Officers Welker and Okubo on October 3 was admitted into
evidence. In it, Anays said "every time" she saw
defendant, including their first meeting, he touched her
or tried to do so. She said he repeatedly touched her
"over her clothes in her breast and vaginal area," that
he touched her vaginal area on October 1 when he tried
to get his hat back from her, and that she climbed the
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fence and hid until he left. She said defendant touched
her when they were alone and sometimes at a restaurant
when her mother left the table. She tried putting a
book or blanket on her lap at home, but defendant would
move them to touch her. Anays said once, when she was
trying to call her father, who did not live at the
house, defendant entered her room, hung up the
telephone, threw her on her bed, hit her arm, and
threatened, "If you tell anybody, somebody might get
hurt because it's your fault." Anays said this threat
initially convinced her not to report the touching. She
described an incident when defendant entered her room
and tried to keep her there by holding the door shut;
she said she escaped, ran outside, hopped over the
fence, and hid. Anays said defendant once began to
unbuckle his belt while touching her but stopped when
Anna called her. Anays said he once tried to touch her
under her shirt and shorts but she pushed his hand away
and that he kissed her cheek and below her lips once in
the backyard. Anays said she decided to report the
touching after seeing a program about a young girl who
was sexually assaulted and was pregnant.
Anays testified at trial as follows.
During the time she knew defendant, he often came
to the house alone; he did not drive but often brought
his bike. Anays said defendant was nice to her and she
liked him "[a] little" when she first met him. Anays
also liked Sonja. Anays said defendant brought her
things and gave her money, but "not that much;" she
later conceded she earlier had testified he gave her
money "every time" he saw her. Anays said defendant
brought Chinese food and was nice to her mother, they
went to a Chinese restaurant every week, and on weekends
the group went to a flea market where Anna shopped.
Later in her trial testimony, Anays said she
"didn't like [defendant] . . . that much" when he gave
her things and there were "at least three times" when he
had touched her in a way that made her "uncomfortable."
She did not recall when the incidents took place but
said he touched her improperly the first time he came to
the house. She did not recall testifying at the
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at the house.3 Anays said defendant once kissed her
cheek when she turned as he tried to kiss her mouth.
Anays said he came into her room "a lot" when no one
else was there, that he twice touched her in her room,
and that one of those times her mother "call[ed] him
back out." Anays did not recall if the door was open.
She said defendant once touched her on a day she stayed
home from school. Anays said another time, in the
middle of the six-month period, he entered her room and
touched her when she was leaning against the wall and
her knees up. He leaned over and touched the front part
of the body she uses to pee over her shorts. His
fingers were held together as his hand moved "around" in
"circles." This touching lasted about "a medium time,"
"like 20 seconds." Defendant said nothing, and Anays
kept "closing [her] legs." She felt "[u]ncomfortable"
and "wanted to yell" but did not because she "was
scared" of "older people." She could not recall if she
said anything or had tried to move his hand, but she
knew he stopped when Anna called his name. Anays then
hid under her bed, scared defendant would touch her
again. He came back but could not find her and did not
touch her again that day. On cross-examination, Anays
admitted at the preliminary hearing she had said the
touching occurred only once in the bedroom.
Anays testified she thought defendant also touched
where she pees the next day. She was inside, and her
mother was outside. She thought he touched her for a
shorter time and that he stopped when Sonja or Juan
called him.
Anays said she and defendant sometimes played alone
in the yard although she did not like doing so "that
much." She testified he briefly touched her same front
part another time after school while they played in the
yard. She thought the touching stopped when she grabbed
his hat, threw it away, and jumped over the fence. She
did not return until Angela said he was gone. On crossexamination, she said she testified at the preliminary
hearing that she climbed the fence when he tried to
touch her and his hand "got about 14 inches from [her]
vagina."

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The preliminary hearing occurred more than six months after
the charged crimes and more than eight months before Anays
testified at trial.
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Anays testified defendant touched her at the flea
market while they watched the mariachi bands. Angela
was across from them and Anna was shopping when, under
the table, defendant moved a hand on her same front part
over her pants. He stopped when Anna returned but
touched her again at the flea market, perhaps a week
later. They were at a different table, this time with
Sonja and Juan. Anays said defendant moved his hand on
her same front part. She did not recall if anything was
said or if she tried to move his hand on either
occasion.
Anays was certain that, during the middle of the
six-month period, defendant touched her at a Chinese
restaurant when her mother and sister were in the
bathroom. He touched over her clothes where she pees,
and his hand moved around in a circle until Anna
returned. Anays first said this occurred several times
at the restaurant; she later seemed uncertain as to
whether it had been more than once.
Anays initially did not report the touching because
she was "scared." She later told her mother because she
got worried after seeing a program in which a young girl
became pregnant. She recalled telling her mother
defendant last touched her two days before and telling a
female officer everything she could remember; Anays did
not recall defendant threatening her or telling
Detective Lee that he had done so. Asked if her mother
told her "to tell the police that [defendant] had
touched you in a way that you didn't like," Anays
answered, "Yes." Anays explained that her mother told
her to "tell all the truth to the police." Anays
testified she told the truth to the officer, her mother
never told her "to make up a story" or "to lie about
[defendant] touching [her]," and she told the truth when
she said defendant touched her in a way that made her
feel uncomfortable.

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Angela testified she began sharing Anays' room when
Sonja moved in and that she knew defendant as a friend
of Sonja's boyfriend. Angela liked defendant at first
because he was "generous" since he often gave her and
Anays ten or twenty dollars at the flea market. She
denied that defendant gave her a bike and did not recall
if he gave one to Anays. Angela said defendant spent
more time with Anays and gave Anays more money and CDs,
but she "never thought about" whether he liked Anays
"better" than her.
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Angela testified defendant once touched her
inappropriately on a weekend day in the middle of the
six-month period when Anays was with their father and
Anna was driving defendant, Sonja, Angela, and Angela's
brother to pick up Sonja's mother. Sonja was in the
front passenger seat; in the back seat, Angela sat
behind Sonja and next to defendant. At their
destination, Anna went inside while Sonja stayed in the
car. Angela said defendant then touched the outside of
her legs in the mid-thigh area, that his hand touched
bare skin as it moved from her knees to the hem of her
shorts. Neither of them said anything; she pushed his
hand away three times, but he kept putting it back until
she put a towel over her legs. Angela was present when
Anays told their mother that defendant had touched her
and she saw the officers talking to Anays and Anna.
Angela said she did not report the leg incident that day
because she was "scared" that defendant would "start to
touch [her] again."
Angela said defendant often went to the girls' room
to talk to Anays alone and that she once entered her
bedroom and saw that defendant and Anays were talking.
Angela once saw defendant grab Anays' shoulders and hug
her at the flea market but said the girls never were
alone with him there.
Angela testified defendant continued to come over
by bicycle after Sonja moved. Angela was uncomfortable
with defendant before he touched her legs, and she got
"a feeling that he would do something wrong with [her]
and [Anays]" when Anays stopped speaking to him, began
running away from him, and refused to return until
Angela said he had left. Angela said Anays began to
avoid defendant after he had touched Angela's legs and
during the middle of the six-month period. Angela
testified that, after the police were at the house, she
and Anays did not talk about "it" because, if they did,
Anays would cry or get depressed.
Angela testified she did not tell Detective Lee
about Anays running away from defendant. She did not
think about it since they mostly discussed her, not
Anays. Lee testified that, when he interviewed Angela
on November 13, she said defendant had begun to move his
fingers under her shorts, the car was parked at a store,
and that Sonja was in the driver's seat. Lee said he
only spoke with Angela regarding Anays by asking if

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Angela knew why he was there and by asking if Angela
ever saw defendant touch Anays.
Anna testified defendant occasionally rode in the
back seat with Angela. She was unsure but thought
Angela had done so when Anna was going to the store.
When the officers came to talk to about Anays, Anna did
not know defendant had touched Angela's legs; Angela
told her after talking to the police.
Defendant's friend Conrad Alayon described
defendant as a "good person." Alayon met defendant in
1998, they shared a room in 1999, and they lived
together again during 2001. Alayon testified that, for
a period in 2001, Anna visited defendant twice a week
without her children and called when she did not come
by. Alayon once heard Anna tell defendant she "could
not make ends meet." He never saw defendant give Anna
money, but defendant once asked him to give Anna $200.
Anna came to the apartment and told Alayon she took the
money, but Alayon did not give it to her. During the
two times he helped defendant with Anna's yard work,
Alayon noticed that Anna's children "had a good
friendship" with defendant, but defendant did not play
with them since he and Alayon were working.
Public defender investigator Annabeya Ayala
testified that, during an unrecorded interview she
conducted with Anna in May 2002, Anna did not say she
had seen defendant touch any of her children
inappropriately, that she had seen him enter Anays'
bedroom, or that she had made him leave. Anna told
Ayala defendant sometimes came over unexpectedly but she
could not allow him to come by after Sonja moved since
her husband suspected she and defendant "had something
going on." Ayala did not ask Anna if defendant ever
entered Anays' room.
Sonja G. testified she stayed with Anna for less
than three months[,] she moved because Anna was not a
good friend, that Anna was "dangerous" and would "make
[ ] up a lot of things." On cross-examination, Sonja
admitted she and Anna still are on good terms, but said
that, if you do a favor Anna asked "everything is okay,
but then if you don't do her that favor, then things are
not that good anymore."
Sonja met defendant in 2000; she described him as a
"very good person and a very calm person." Sonja said
Anna met defendant on a day he sat in the car when Juan
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came to visit Sonja. Anna asked them to introduce
defendant to her, but Juan refused to do so because Anna
had a husband. Anna then introduced herself and asked
defendant to invite her to eat. Sonja heard defendant
say no since they were running errands. At Anna's
invitation, defendant came to the house once a week on
the weekends, and Anna had him clean the yard.
Defendant occasionally came by bike but usually Anna
picked him up. Sonja often went out to eat with Anna,
the children, Juan and defendant. Sonja said only
defendant or Juan paid for those meals and that Anna
would call defendant to ask him to bring food or to take
her to buy food. Sonja first said Anna left the
children with her while doing errands but never left
them with defendant; Sonja later said Anna once gave
defendant permission to take the children to the store
alone.
Sonja never saw defendant enter the girls' room or
touch them inappropriately and Anna never asked if she
had seen him do so. Sonja said the girls always were
happy to see defendant since he brought food and gave
them money; she said Anna urged defendant to give money
to all her children and then took the money from the
boy. Sonja said defendant always gave each girl between
$5 and $25 at the flea market. Sonja never left the
table so the girls never were alone with defendant
there. When the group traveled by car, Sonja always sat
in back with the children while defendant sat in front
with Anna. Sonja did not recall a drive to her mother's
house when she was in the front and defendant and Angela
were in the back.
Sonja testified she lent Anna money that was not
repaid and that she often heard Anna ask defendant for
money. Three days after Anna met defendant, Sonja saw
him give Anna a $400 cash loan at his apartment. Sonja
once saw him give Anna $100; other times, Sonja saw
defendant give Anna rolled up money. Sonja said once
Anna met defendant she had money to eat out often and to
shop. Anna told Sonja she received $200 to $500 from
defendant each week; Anna told Sonja each time she got
the money and would laugh about it. Sonja said Anna and
her husband were separated while Sonja lived at the
house but the husband often came by in the evening.
Sonja did not know if defendant and Anna had had a
romantic relationship. She testified that, before
moving out, she warned defendant about Anna being
vindictive, but he indicated he was not concerned.
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Sonja said that, on the weekend before defendant was
arrested, Anna asked him for $300 but he only agreed to
give her $100. Sonja saw Anna "crush[ ]" the $100 bill
and turn red. Anna then either told defendant "You are
going to pay for that" or told Sonja "He's going to pay
for this." Sonja testified Anna "was after the
defendant's money."
Sonja admitted she pleaded guilty in June 2001 to
filing a false police report and to being so intoxicated
that she could not care for her own safety. The minute
order for the conviction for filing a false police
report was admitted into evidence.
Defendant testified he did not touch Anays or
Angela inappropriately "at all." He said that, a week
after he met Anna with Juan, she called asking him to
take her to lunch. He took her to lunch with Sonja,
Juan, Anays and Angela, and they then went to the flea
market, where he had a couple of beers. When Anna drove
him home, she and Sonja came to his room. Anna asked
for money as she was leaving, and Sonja was present when
he lent Anna $400; he did so because he was "somewhat
drunk." Defendant testified that, thereafter, Anna
constantly called his cell phone asking for money, he
kept giving it to her, she never repaid him, and he
continued to give her money hoping she would "stop
bothering" him. He initially gave Anna $200, $300, or
$400 because he had a good construction job but, toward
the end of the six-month period, he was giving her $100
or $150.
Defendant testified that, after Sonja moved, he
gave Anna $600 on August 27 because she was going to
rent him a room, but she changed her mind the next day.
When she did not return the money, defendant decided not
to give her more. In September, defendant tried to
avoid her ongoing requests for money by turning off his
phone, but he still did her yard work, took out her
garbage, went to the flea market with the family, and
ate out with them.
Defendant said he usually saw Anna twice a week;
they ate out on Fridays and went to the weekend flea
market. He said he cleaned her yard on weekends but
then said he did so on Wednesdays. He helped because
Anna was a friend who was alone with children. He said
Anna did not have a husband but that he and she were not
romantically involved.
13

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
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15
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18
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20
21
22
23
24

Defendant said Anays and Angela always were happy
to see him. He said he never was alone with them
inside, he never went to their room, he never sat on a
sofa with Anays, he never was alone with either girl at
a restaurant or the flea market, and he never was in the
car's back seat with Angela. He added that Anna never
made him leave after accusing him of rubbing Anays' leg.
He said Anna was a protective mother who did not allow
him to get close to her girls, that he never had
problems with girls, and that they never complained
about him.
Defendant said he touched Anays only three times,
that he once put his hand "over her head," he gave her a
kiss when he bought her a bicycle, and he once touched
her shoulder. He said the only time he ever played with
the girls was on October 1, his last time at the house.
There to retrieve his bike, he was at a table when Anays
removed his hat and gave it back a couple of times but
then took it and tried to get him to catch her. He said
he did not follow Anays when she climbed a fence but got
his hat back later when he was leaving; in retrieving
the hat, defendant first testified that he grabbed
Anays' arm. On cross-examination, he said he touched
her shoulder but not her breasts or vagina. He admitted
he told the police he could have "touched Anays' breasts
by accident" but testified he "didn't do it," and he
denied having shown officers how he had "grabbed Anays'
upper chest area above her breasts." Asked if it was
possible he touched her vagina while retrieving his hat,
defendant testified, "Maybe because it was on the ground
and I grabbed my cap, so I don't know." Defendant
denied telling the police he grabbed Anays to avoid her
falling when she jumped off the fence or that he touched
her vagina in doing so. He said Anays did jump off the
fence but not in his direction. Defendant said he had
been half asleep when interviewed at the station and did
not recall denying to police that he was at Anna's house
on October 1 or saying he had been cleaning his room
that day.4
Defendant testified Anna asked him for money on
October 4, and he gave her $50 the following day.

25
26
27
28

4

San Jose Detective Juan Gonzalez testified he interviewed
defendant in Spanish in jail at 10:30 a.m. on October 14.
Gonzalez did not recall whether defendant was sleepy, but he said
defendant had been coherent and responsive.
14

1
2
3

Defendant last saw her on Sunday, October 7, when she
asked for $300 because she was having furniture
delivered and her carpet washed. When he only gave her
$100, Anna said, "I told you I needed money." When he
said he did not have any more, he could tell that Anna
was mad.5

4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12

Defendant admitted pleading guilty to child
molestation in 1994, but he said the mother falsely
accused him of molestation and told her daughter to lie
to get back at him. He only admitted guilt because he
had drunk driving tickets and did not realize the future
consequences of his plea. He said his public defender
lied when he said defendant would get a sentence of one
year rather than the three he received. Defendant
testified he realized he had to "be very careful" when
around Anna's girls because children "accuse you for any
little thing." Defendant testified that Anna, Anays,
and Angela all were "lying" at trial. He admitted that,
when stopped by police in 1994 and when arrested in this
case, he had lied to police by giving a false name; he
also admitted giving a false date of birth in 1994.

13
14
15
16
17
18
19
20
21
22

Detective Gonzalez testified on rebuttal that,
during his interview with defendant, defendant first
said he touched Anays only on the shoulder but then said
he touched her upper chest above the breast and
demonstrated how he touched her upper chest area with
two hands "just in passing." After denying he could
recall an incident with his cap, defendant conceded
there was such an incident but denied touching Anays'
vagina while retrieving his cap. After saying he did
not recall whether he touched her vagina, defendant next
swore he had not touched it. Once the interview ended,
he said he wanted to say something else. He then
volunteered that there had been an incident in which he
touched Anays' vagina during a "game" in which she
jumped from bars or a fence and landed on him. Asked
why he had not mentioned this incident earlier,

23
5

24
25
26
27
28

Detective Gonzalez testified defendant had told him that,
when Anna asked for $600 for rent, he gave her $50 on the Sunday
before he was arrested, but he denied Anna was mad at him for
giving her only $50. Gonzalez also testified that, when asked
where he was on October 1, defendant first said he did not recall.
He then said Anna called him that day to go out to eat, but he had
declined because he had to clean his room; he said he was certain
he had not gone to her house that day.
15

1
2
3

defendant admitted he was afraid "they would get me for
that."
People v. Trujillo, 2004 WL 2365386, at *1-9 (Cal. Ct. App. Oct.
21, 2004) (footnotes renumbered).

4
LEGAL STANDARD

5
6

A federal court may entertain a habeas petition from a state

7

prisoner "only on the ground that he is in custody in violation of

8

the Constitution or laws or treaties of the United States."

9

U.S.C. § 2254(a).

United States District Court
For the Northern District of California

10
11

28

Under the Antiterrorism and Effective Death

Penalty Act (AEDPA) of 1996, a district court may not grant habeas
relief unless the state court's adjudication of the claim:

12
"(1) resulted in a decision that was contrary to, or involved an
13
14

unreasonable application of, clearly established Federal law, as

15

determined by the Supreme Court of the United States; or

16

(2) resulted in a decision that was based on an unreasonable

17

determination of the facts in light of the evidence presented in

18

the State court proceeding."

19
20

28 U.S.C. § 2254(d); Williams v.

Taylor, 529 U.S. 362, 412 (2000).
A state court decision is "contrary to" Supreme Court

21
22
23

authority, that is, falls under the first clause of § 2254(d)(1),
only if "the state court arrives at a conclusion opposite to that

24

reached by [the Supreme] Court on a question of law or if the

25

state court decides a case differently than [the Supreme] Court

26

has on a set of materially indistinguishable facts."

27
28
16

Id. at 412-

1

13.

A state court decision is an "unreasonable application of"

2

Supreme Court authority, that is, under the second clause of

3

§ 2254(d)(1), if it correctly identifies the governing legal

4

principle from the Supreme Court's decisions but "unreasonably

5

applies that principle to the facts of the prisoner's case."

6
7

at 413.

Id.

The federal court on habeas review may not issue the writ

"simply because that court concludes in its independent judgment

8
9

that the relevant state-court decision applied clearly established

United States District Court
For the Northern District of California

10

federal law erroneously or incorrectly."

11

application must be "objectively unreasonable" to support granting

12

the writ.

13

"where there is no possibility fairminded jurists could disagree

14

that the state court's decision conflicts with this Court's

15

Id. at 409.

precedents."

Id. at 411.

Rather, the

Under AEDPA, the writ may be granted only

Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

16
17
18

If constitutional error is found, habeas relief is warranted
only if the error had a "'substantial and injurious effect or

19

influence in determining the jury's verdict.'"

20

532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S.

21

619, 638 (1993)).

22
23
24

Penry v. Johnson,

When there is no reasoned opinion from the highest state
court to consider the petitioner's claims, the court looks to the
last reasoned opinion of the highest court to analyze whether the

25
26
27

state judgment was erroneous under the standard of § 2254(d).
Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991).

28
17

In the present

1
2

case, the highest court to issue a reasoned decision on
Petitioner's claims is the California Court of Appeal.

3

DISCUSSION

4

Petitioner asserts four claims for relief in his federal

5

habeas petition; however, in his traverse Petitioner concedes that

6
7

habeas relief is not available on two of his claims.

First, the

petition claims relief on the theory that the trial court's

8
9

response to the jury question regarding Petitioner's prior

United States District Court
For the Northern District of California

10

conviction removed the only factual question regarding the

11

conviction from consideration of the jury.

12

Petitioner recognizes that there is no federal constitutional

13

right to a jury determination of a prior conviction allegation.

14

Petitioner acknowledges that, instead of a jury finding, "a prior

15

In his traverse,

conviction must itself have been established through procedures

16
17
18

satisfying the fair notice, reasonable doubt, and jury trial
guarantees."

Jones v. United States, 526 U.S. 227, 249 (1999).

19

Petitioner does not allege that the trial court's procedure

20

violated this standard.

21
22
23
24

Second, in his petition, Petitioner claims that the trial
court erred in admitting evidence regarding a defense witness's
prior criminal convictions.

In his traverse, Petitioner concedes

that there is no clearly established federal law on the issue.

25
26

Thus, with Petitioner's acknowledgement that relief is not

27

available under two of his asserted claims, the Court now

28

addresses the remaining two claims in turn.
18

1
2
3

I.

First Ground for Relief: Admission of Evidence of
Petitioner's Prior Conviction
Petitioner argues that the trial court violated his

constitutional due process rights by instructing the jury that if

4
5
6

it found the other crimes evidence true by a preponderance of the
evidence, it could infer that Petitioner was guilty as charged.6
Respondent maintains that the jury was property instructed, and

8

points to the split verdict as evidence that the jury did not

9

simply infer guilt based upon Petitioner's prior conviction.

10
United States District Court
For the Northern District of California

7

The jury received two instructions on the issue of

11

Petitioner's prior conviction.

The court read California Jury

12
Instruction, Criminal (CALJIC) 2.50.01:
13
14
15
16
17
18
19
20
21

If you find that the defendant committed a prior
sexual offense, you may, but are not required to, infer
that the defendant has a disposition to commit sexual
offenses. If you find that the defendant had this
disposition, you may, but are not required to, infer
that he was likely to commit the crimes of which he is
accused.
However, if you find by a preponderance of the
evidence that the defendant committed a prior sexual
offense, that is not sufficient by itself to prove
beyond a reasonable doubt that he committed the charged
crimes. The weight and significance of the evidence, if
any, are for you to decide.

22

Reporter's Transcript (RT) at 504-05.

23

The court also read CALJIC

2.50.1:

24
25
26
27
28

6

Petitioner does not claim relief due to the trial court's
admission of the evidence of the prior crime, but only due to the
trial court's instruction regarding the inference the jury may
draw from the evidence.
19

Within the meaning of the preceding instruction,
the prosecution has the burden of proving by a
preponderance of the evidence that the defendant
committed a crime or sexual offense other than those for
which he is on trial.

1
2
3

You must not consider this evidence for any purpose
unless you find by a preponderance of the evidence that
the defendant committed the other crime or sexual
offense.

4
5
6

If you find another crime was committed by a
preponderance of the evidence, you are nevertheless
cautioned and reminded that before a defendant can be
found guilty of any crime charged or any included crime
in this trial, the evidence as a whole must persuade you
beyond a reasonable doubt that the defendant is guilty
for that crime.

7
8
9

United States District Court
For the Northern District of California

10
11

RT at 505.

12

Petitioner first argues that the jury was given conflicting

13
instructions on the burden of proof, and that the jury may have
14
15

found Petitioner guilty only by a preponderance of the evidence,

16

thus violating Petitioner's due process rights.

17

argument the Ninth Circuit considered and rejected in Schultz v.

18

Tilton.

19

upon three children under the age of fourteen.

20
21

This is the exact

There, Schultz was found guilty of committing lewd acts

659 F.3d 941, 943 (9th Cir. 2011).

Schultz v. Tilton,

In addition to the evidence of

the charged conduct, the prosecution provided evidence of prior

22
23
24

uncharged sexual misconduct involving two other minors.

Id.

The

jury in Schultz received a previous version of CALJIC 2.50.01,

25

and, after being convicted, Schultz filed a habeas petition

26

contending that the instruction violated his due process rights.

27

Id.

On appeal of the denial of his petition, the Ninth Circuit

28
20

1

reviewed People v. Reliford, 29 Cal.4th 1007 (2003), a decision

2

from the California Supreme Court holding that a similar version

3

of CALJIC 2.50.01 does not violate due process, and held that the

4

state courts did not violate federal law in applying Reliford to

5

affirm Schultz's conviction.

6
7

Id. at 944-45.

The Ninth Circuit

held that the instructions taken as a whole were clear that
Schultz could be convicted only if the evidence established guilt

8
9

United States District Court
For the Northern District of California

10

beyond a reasonable doubt.

Id. at 945.

Petitioner distinguishes Schultz on two bases.

First,

11

Petitioner notes that the instruction from Schultz is slightly

12

different from the instruction his jury received because the

13

Schultz jury received the following additional instruction:

14
15
16
17
18

If you determine an inference properly can be drawn from
this evidence, this inference is simply one item for you
to consider, along with all other evidence, in
determining whether the defendant has been proved guilty
beyond a reasonable doubt of the charged crime.
Id. at 943.

Petitioner notes the absence of this instruction

19

from his trial, but does not offer any argument to explain

20

how this absence renders his conviction constitutionally

21

infirm.

22
23
24

The Court concludes that this difference in language is
insufficient to warrant habeas corpus relief.

The language from

Schultz is very similar in content to this portion of CALJIC

25
26
27
28

2.50.1, which was given to Petitioner's jury:
If you find another crime was committed by a
preponderance of the evidence, you are nevertheless
cautioned and reminded that before a defendant can be
21

1
2
3

found guilty of any crime charged or any included crime
in this trial, the evidence as a whole must persuade you
beyond a reasonable doubt that the defendant is guilty
for that crime.
This language instructs the jury to consider the evidence of the

4
5
6

prior crime as part of the entire body of evidence before it and
also admonishes the jury that the evidence must prove guilt beyond

7

a reasonable doubt.

8

to distinguish Petitioner's case from the holding in Schultz.

9

United States District Court
For the Northern District of California

10
11

This difference in language is insufficient

Petitioner next distinguishes Schultz because Schultz does
not discuss the prosecution's explanation of the instruction,
whereas Petitioner contends that the prosecution in his case "made

12
a direct connection" between the preponderance burden of proof
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

instruction and how the jury could use it to find him guilty.
prosecutor stated:
You can choose, if you believe it more likely than not.
If you remember the standard about a preponderance, is
it more likely than not that the defendant committed any
of the other sexual offenses. With Anays, did he commit
any of the offenses with Angela or with Myra J.? Is it
more likely he committed the offense? The law allows
you to make certain inferences, and these are the
inferences you can make if you find more likely than not
that he did commit other sexual offenses. This is what
you can do. You can pull this instruction out when you
are deliberating. You may infer that the defendant had
a disposition to commit sexual offenses, and you may
make the inference that he was likely to commit and did
commit the crimes that he's being charged with.
Now, not only can you make those inferences, if you
believe that those other offenses occurred, more likely
than not you can also use that to show he had the sexual
intent when he touched Anays. You can use those other
offenses to show that he had the sexual intent when he
touched Angela, and you can also use those other sexual
offenses as showing that absence of mistake or accident,
22

The

1
2
3

that it wasn't just an accident
you to believe, that, oh, maybe
happened, because I'm sorry you
convicted of molesting a little
RT at 537-38.

as the defendant wants
possibly by accident it
have already been
girl years before.

According to Petitioner, the instruction and the

4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20

prosecution's explanation of the instruction encouraged the jury
to find Petitioner guilty based only on the inference drawn from
the other crimes evidence.
In adjudicating this claim on direct appeal, the California
Court of Appeal denied relief on this argument, reasoning as
follows:
We are not persuaded by this argument since the
jury found defendant not guilty of the lewd and
lascivious act charged against one of the alleged
victims here where the prior molestation conviction was
not contested and the prosecutor forcefully argued
defendant "molested a little girl before, and he did it
again. Except this time there wasn't just one victim;
there were two more victims." In the context of the two
verdicts returned in this case, we are convinced there
is no reasonable likelihood the jury misunderstood the
instructions to allow a conviction based solely upon
disposition evidence that was proved by less than beyond
a reasonable doubt.
Trujillo, 2004 WL 2365386, at *13 (citations omitted).
The Court of Appeal did not act contrary to federal law in

21
its analysis.

A jury instruction that reduces the level of proof

22
23

necessary for a guilty verdict "is plainly inconsistent with the

24

constitutionally rooted presumption of innocence."

25

States, 409 U.S. 100, 104 (1972).

26

instruction should not be judged "in artificial isolation" and

27
28
23

Cool v. United

However, a single jury

1
2
3

must be considered in the context of the trial and instructions as
a whole.

Cupp v. Naughten, 414 U.S. 141, 146-47 (1973).

The instructions explain the two burdens of proof and are

4

not, as Petitioner argues, contradictory.

5

that the jury may infer that Petitioner was "likely to commit the

6
7

Instead, they explain

crimes of which he is accused," but then they immediately explain
that this inference is insufficient to render a guilty verdict and

8
9

that a finding of guilt requires proof beyond a reasonable doubt.

United States District Court
For the Northern District of California

10

RT at 504-05.

11

United States Supreme Court in Francis v. Franklin, a case cited

12

by Petitioner, because, as the Supreme Court noted, those

13

instructions discussed conflicting burdens of proof and never made

14

clear which burden of proof actually controlled.

15

The instructions were unlike those rejected by the

Franklin, 471 U.S. 307, 322 (1985).

Francis v.

In this case, as in Schultz,

16
17
18

the instructions made clear that Petitioner could only be
convicted if "the evidence as a whole 'proved [him] guilty beyond

19

a reasonable doubt of the charged crime'".

20

945 (quoting Mendez v. Knowles, 556 F.3d 757, 770 (9th Cir.

21

2009)).

22
23
24

Schultz, 659 F.3d at

Additionally, there is not a "reasonable likelihood that the
jury understood the instructions to allow conviction based on
proof insufficient to meet the [beyond a reasonable doubt]

25
26

standard."

Victor v. Nebraska, 511 U.S. 1, 6 (1994).

Looking at

27

the actual verdict in this case, it is clear that the jury did not

28

simply find Petitioner guilty of the charged crimes due to a
24

1

finding that he had been previously convicted.

The jury found

2

that Petitioner had been previously convicted of committing a lewd

3

or lascivious act upon a child under the age of fourteen.

4

Transcript (CT) at 247.

5

guilty of the charged offenses as a result of this finding, the

6
7

Clerk's

Had the jury simply found Petitioner

jury would have found Petitioner guilty of both charges.

However,

the jury only found Petitioner guilty of the charge that he

8
9

committed a lewd or lascivious act upon Anays, and not of the

United States District Court
For the Northern District of California

10

charge that he did so upon Angela.

11

violate clearly established federal law in upholding the verdict

12

on this reasoning.

13

relief on this ground is DENIED.

14

II.

15

The Court of Appeal did not

Accordingly, Petitioner's request for habeas

Second Ground for Relief: California Penal Code Section 868.5
Petitioner next argues that California Penal Code section

16
17
18

868.5 is unconstitutional because it permits trial courts to allow
a complaining witness to testify with a support person without

19

first holding a hearing to find a need for a support person.

20

Respondent argues that Petitioner procedurally defaulted on this

21

claim because he did not object at trial and that, in any event,

22

the claim is not meritorious because the trial court did not

23
24

violate any clearly established federal constitutional law.
California Penal Code section 868.5 subdivision (a) permits a

25
26

prosecuting witness to have up to two support persons in

27

attendance, one of whom may accompany the witness to the witness

28

stand.

Subsection (b) of the code section specifies that if the
25

1

support persons are also participating in the trial as witnesses,

2

then the court must hold a hearing and the prosecution must show

3

that the persons' attendance is desired by and will be helpful to

4

the witness.

5

appeal, the California Court of Appeal provided the following

6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

In reviewing Petitioner's claim for relief on direct

facts:
In the present case, the trial court held no
hearing and made no determination before allowing a
support person to accompany Anays and Angela to the
witness stand. When the prosecutor said she anticipated
there would be a non-witness support person for Anays
and Angela, the trial court asked for comment. Defense
counsel replied, "Submitted." The court then said it
would follow "statutory authority and allow a support
person or persons." Defense counsel did not object at
that point nor had he objected to the prosecutor's
earlier written request that the court "take special
precautions to provide for the . . . support" of Anays.
Before the first witness testified, the trial court
instructed the jury with a version of CALJIC No. 2.20
that lists as a factor a jury may consider in assessing
credibility "the witness' conduct, attitude, manner
while testifying." When the prosecutor called Angela to
the witness stand later that day and said Angela "will
have a victim advocate up on the stand," the defense did
not object. Similarly, the defense did not object when
the court instructed the jury that "the lady that's with
Angela,7 under California law under certain
circumstances[,] minors are allowed to have a support
person, and that is all this woman is doing. She's been
instructed not to communicate with the witness in any
way, other than just being with her during the
testimony." Later, when Anays took the witness stand,
the prosecutor said Anays would have "a support person
from the Victim Assistance Center." This time, the
support person introduced herself as Elvia Enrique, the
same person listed in the Clerk's Transcript as the
support person for Angela. The court did not reinstruct
the jury regarding her role but asked if Enrique knew
The clerk's transcript identifies the support person for
Angela as Elvia Enrique.
7

26

1
2
3
4
5
6
7

what her "job as a support person . . . involves."
Enrique replied, "Yes." The defense did not object
during this colloquy. At the end of the trial, the
court instructed the jury that one of the listed factors
it could consider in determining credibility was "[t]he
demeanor and the manner of the witness while
testifying." Pursuant to CALJIC No. 2.20.1, the court
also told the jury how to evaluate the testimony of a
minor who is age ten or younger. The defense neither
objected to these instructions nor proposed one about
the support person.
Trujillo, 2004 WL 2365386, at *10-11.

The Court of Appeal

8
9

United States District Court
For the Northern District of California

10

reasoned that even assuming Petitioner was entitled to a hearing
and determination of the necessity of a non-witness support

11

person, he had waived those rights by not objecting.

12

The court also held that even if Petitioner had not waived his

13

claim, any error was harmless beyond a reasonable doubt.

14

Both Anays and Angela testified with a support person and the jury

15
16

Id. at 11.

Id.

convicted Petitioner of only one charge; thus the court reasoned
that the presence of the support person did not influence the

17
18
19

jury's assessment of the witnesses' credibility.

Id.

As noted earlier, Respondent argues that this claim is

20

procedurally defaulted as barred under California's

21

contemporaneous objection rule.

22

proceeds in two steps.

23

whether the procedural rule the state court invoked to bar the

24

The procedural default analysis

First, the federal court must consider

claim is both "independent" and "adequate" to preclude federal

25
26
27
28

review.

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

Once the state has adequately plead the existence of an
independent and adequate state procedural ground as a defense, the
27

1

burden to place that defense at issue shifts to the petitioner,

2

who "may satisfy this burden by asserting specific factual

3

allegations that demonstrate the inadequacy of the state

4

procedure, including citation to authority demonstrating

5

inconsistent application of the rule."

6
7

then shifts back to the state.

Id. at 586.

The burden

"'The scope of the state's burden

of proof thereafter will be measured by the specific claims of

8
9

United States District Court
For the Northern District of California

10
11

inadequacy put forth by the petitioner.'"

Id. at 584–85 (citation

omitted).
Second, if the procedural rule invoked by the state court is

12

both adequate and independent, then the next step of the

13

evaluation requires the federal court to consider whether the

14

petitioner has established either "cause" for the default and

15

"actual prejudice" as a result of the alleged violation of federal

16
17
18

law, or that failure to consider the claim will result in a
fundamental miscarriage of justice.

19

722, 750 (1991).

20

federal habeas review is barred.

21

Coleman v. Thompson, 501 U.S.

804-05 (9th Cir. 1993).

22
23
24

If a petitioner cannot meet this burden, then
Noltie v. Peterson, 9 F.3d 802,

Respondent has adequately plead that Petitioner's claim is
procedurally defaulted because the state courts denied Petitioner
relief under the state's contemporaneous objection rule.

Thus,

25
26

the burden shifts to Petitioner to demonstrate that the

27

contemporaneous objection rule is not adequate or independent.

28

Petitioner acknowledges, there is recent, binding Ninth Circuit
28

As

1

authority affirming a longstanding holding that California's

2

contemporaneous objection rule is an independent and adequate

3

state procedural rule.

4

1256 (9th Cir. 2011) (citing Garrison v. McCarthy, 653 F.2d 374,

5

377 (9th Cir. 1981) and Melendez v. Pliler, 288 F.3d 1120, 1125

6
7

(9th Cir. 2002)).

See e.g. Fairbank v. Ayers, 650 F.3d 1243,

In his traverse, Petitioner argues that the

Ninth Circuit's decision is wrong; however, Petitioner provides no

8
9

basis upon which this Court may deviate from binding authority.

United States District Court
For the Northern District of California

10

District courts within the Ninth Circuit must follow published

11

Ninth Circuit decisions.

12

n.4 (9th Cir. 2012)(en banc).

13

conclude that review of Petitioner's claim is procedurally

14

defaulted.

15

Gonzalez v. Arizona, 677 F.3d 383, 390
Accordingly, this Court can only

Because the claim is procedurally defaulted, Petitioner is

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17
18

only entitled to review if he can establish either "cause" for the
default and "actual prejudice" as a result of the alleged

19

violation of federal law, or that failure to consider the claim

20

will result in a fundamental miscarriage of justice.

21

U.S. at 750.

22

nor a fundamental miscarriage of justice.

23
24

Coleman, 501

Petitioner argues neither cause and actual prejudice
Accordingly, this Court

cannot review his claim.
Even if the Court reviewed Petitioner's claim, it could not

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grant relief because the claim is without merit.

First, both

27

parties acknowledge that there is no United States Supreme Court

28

authority addressing the constitutionality of a support person for
29

1

a victim witness and there is no authority clearly establishing

2

any right to a threshold hearing or finding of necessity.

3

this Court may only grant habeas relief where the state court

4

adjudication "resulted in a decision that was contrary to, or

5

involved an unreasonable application of, clearly established

6
7

Because

Federal law, as determined by the Supreme Court of the United
States," 28 U.S.C. § 2254(d), this lack of authority is sufficient

8
9

United States District Court
For the Northern District of California

10

for the Court to deny Petitioner's claim on the merits.
Petitioner argues that relief is available under Williams v.

11

Taylor, in which the Supreme Court articulated that a state

12

court's decision is an "unreasonable application" of established

13

federal law when the state court "unreasonably refuses to extend

14

[a legal] principle to a new context where it should apply."

15

Williams v. Taylor, 529 U.S. 362, 407 (2000).

Petitioner argues

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17
18

that the trial court's failure to hold a hearing to determine the
necessity of the support person ran afoul of general principles of

19

the Confrontation Clause and Petitioner's right to a fair trial

20

and the presumption of innocence.

21
22
23
24

In Maryland v. Craig the United States Supreme Court
explained, "The central concern of the Confrontation Clause is to
ensure the reliability of the evidence against a criminal
defendant by subjecting it to rigorous testing in the context of

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26

an adversary proceeding before the trier of fact."

Maryland v.

27

Craig, 497 U.S. 836, 845 (1990).

The Court specified four

28

elements that serve the purpose of the Confrontation Clause:
30

1

"physical presence, oath, cross-examination, and observation of

2

demeanor by the trier of fact."

3

acknowledges that Anays and Angela were physically present when

4

they testified and that they were subjected to cross-examination.

5

Petitioner argues that the process ran afoul of the Confrontation

6
7

Id. at 846.

Petitioner

Clause because the presence of the support person "necessarily
impacted the jury's assessment of the demeanor and credibility of

8
9

this witness."

Traverse at 29.

However, as Respondent argues and

United States District Court
For the Northern District of California

10

the state Court of Appeal explained in its opinion, the record

11

does not support Petitioner's contention that the support person

12

affected the jury's assessment because the same support person was

13

present for both Angela's and Anays's testimony, and the jury

14

found only Anays's testimony to be credible.

15

Accordingly, even if

the Court were to review Petitioner's Confrontation Clause claim

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17
18

on the merits, Petitioner would not be entitled to relief.
As noted, Petitioner also argues that the trial court's

19

failure to hold a hearing to determine the necessity of the

20

support person violated his due process right to a fair trial and

21

the presumption of innocence.

22

Petitioner cites Estelle v. Williams for the idea that "courts

23
24

In support of his argument,

must be alert to factors that undermine the fairness of the fact
finding process."

Estelle v. Williams, 452 U.S. 501, 505 (1976).

25
26

The trial court did not violate clearly established federal law

27

when it did not extend this broad language from Estelle to apply

28

to the witness support person in this case.
31

Petitioner argues

1

that the presence of the support person "could only have added to

2

Anays's credibility."

3

findings in this case belie that contention because the jury

4

returned a mixed verdict and the same procedure was followed for

5

the testimony of both Anays and Angela.

6
7

Traverse at 32.

But again, the jury's

Thus, even if the Court

were to review his due process arguments on the merits, Petitioner
would not be entitled to relief.

8
9

Accordingly, for the reasons explained above, Petitioner's

United States District Court
For the Northern District of California

10

request for habeas relief is DENIED.

11

III. Certificate of Appealability

12

The federal rules governing habeas cases brought by state

13

prisoners require a district court that denies a habeas petition

14

to grant or deny a certificate of appealability in the ruling.

15

Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254.

16
17
18

A petitioner may not appeal a final order in a federal habeas
corpus proceeding without first obtaining a certificate of

19

appealability.

20

judge shall grant a certificate of appealability "only if the

21

applicant has made a substantial showing of the denial of a

22

constitutional right."

23
24

28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

28 U.S.C. § 2253(c)(2).

must indicate which issues satisfy this standard.
§ 2253(c)(3).

The certificate
28 U.S.C.

"Where a district court has rejected the

25
26

constitutional claims on the merits, the showing required to

27

satisfy § 2253(c) is straightforward: The petitioner must

28

demonstrate that reasonable jurists would find the district
32

A

1
2
3

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

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

The Court finds that reasonable jurists would not find its

4

ruling on any of Petitioner's claims debatable or wrong.

5

Therefore, a certificate of appealability is DENIED.

6
7

Petitioner may not appeal the denial of a certificate of
appealability in this Court but may seek a certificate from the

8
9

Court of Appeals under Rule 22 of the Federal Rules of Appellate

United States District Court
For the Northern District of California

10

Procedure.

11

See Rule 11(a) of the Rules Governing Section 2254

Cases.
CONCLUSION

12
13

Based on the foregoing, the Court orders as follows:

14

1. The petition for a writ of habeas corpus is denied.

15

2. The Clerk of the Court shall enter a separate judgment and

16
17
18
19

close the file.

Each party shall bear his own costs.

3. A certificate of appealability is denied.
IT IS SO ORDERED.

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22
23

Dated: August 5, 2015
CLAUDIA WILKEN
United States District Judge

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