Villasenor v. Brazelton

Filing 25

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Lucy H. Koh on 8/21/14. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 8/22/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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FELIPE JESUS VILLASENOR,
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Petitioner,
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v.
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WARDEN P.E. BRAZELTON,
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Respondent.
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No. C 12-4829 LHK (PR)
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF
APPEALABILITY

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Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. He claims that: (1) his constitutional right to a speedy trial was

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violated, and (2) the admission of his uncharged crimes to prove propensity violated due process.

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Respondent was ordered to show cause why the petition should not be granted. Respondent has

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filed an answer. Petitioner has filed a traverse. Having reviewed the briefs and the underlying

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record, the court concludes that petitioner is not entitled to relief, and DENIES the petition.

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PROCEDURAL HISTORY
On February 4, 2010, a jury found petitioner guilty of continuous sexual abuse of a child

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under the age of 14 years. On April 2, 2010, the trial court sentenced petitioner to a term of

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sixteen years in state prison. On February 21, 2012, the California Court of Appeal affirmed the

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judgment. On May 9, 2012, the California Supreme Court denied review. On September 14,

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2012, petitioner filed the underlying federal habeas petition.
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FACTUAL BACKGROUND1

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A.

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The victim, A. was born in 1991 and was 18 when she testified. In the late
1990’s, she lived in King City with mother, her older brother Albert, and
younger brother O. Defendant was O.’s father. A.’s mother, L., and defendant
dated and he spent time at the house but did not live there.

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THE CHARGED OFFENSE

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A. testified that when she was in the third or fourth grade, defendant sometimes
forced his finger into her mouth and moved it around. She said that between the
fourth and sixth grades, L. and defendant sometimes had sex on the floor in her
bedroom and on some occasions in the twin bed next to her bed. When they
used the bed, defendant sometimes rubbed A.’s legs. Later, he started to rub her
vagina over her clothes and then started to do so under her clothes. One time,
he penetrated her with his finger.

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A. testified that once when she was in the fifth grade, defendant tried to make
her watch a pornographic videotape in the master bedroom. However, she ran
to the living room and watched TV there. However, she could still hear his
videotape. That same day, she was in the bathroom, defendant entered, and she
kicked him in the groin. He then grabbed her hand and made him massage his
erect penis before she could pull free and run out.

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On another occasion, she woke up and saw defendant naked. He was holding
his penis and apparently masturbating.

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A. testified that in the fifth grade, she sat outside L.’s bedroom door crying and
wanting to tell her about the molestation. However, her mother was not
concerned about why she was crying, pushed her away with her foot, and told
her not to listen at the door.

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A. testified that one day, when she was 15 and in high school, and after her
mother had stopped seeing defendant, her mother told her that defendant was
coming over with a support payment. When defendant arrived, A. was talking
to her boyfriend, Manny, on the phone. She answered the door, and defendant
said he would not give her the payment unless she showed him her legs. She
did and then grabbed the check. She returned to the phone, and Manny, who
had heard the conversation, asked her why defendant had spoken to her that
way. She told Manny “everything,” and he said he would report defendant if
she did not.

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After that, A. told her close friend Danny. She also wrote a letter to her brother
Albert. In it, she said that defendant had been molesting and raping her since
the second grade and that she had lost her virginity. Albert told a school
counselor about the letter and showed it to her. At trial, A. admitted that she
had not been raped and had not lost her virginity. She said she considered what
he did rape and that digital penetration qualified as rape.

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A. admitted that she never liked defendant because he tried to act like her father
and tell her what to do, and she resisted him. A. also admitted that she fought
with her mother because she was dating a 19-year-old boy who her mother

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The following facts are taken from the California Court of Appeal’s opinion.

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thought was too old for her. Even defendant told her not to see him. A. and her
mother also argued about her phone bill, the way she dressed, and her truancy.
At one point, A. wanted to move to live with her father. However, A. denied
that she falsely accused defendant because of the conflicts with her mother.

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In 2006, A. reported the abuse to a teacher at her high school, and he related the
report to the high school counselor.
At trial, A. admitted that she had exaggerated the instances of abuse when she
reported it to personnel at Natividad Hospital and to the police. She also
admitted that she did not report the masturbation incident until she was
interviewed by the district attorney.

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B.

UNCHARGED SEXUAL MISCONDUCT

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The prosecution introduced evidence that defendant had also molested Jane in
1997. [FN2] She testified that when she was 12, defendant and her mother
were friends, and he used to come to her mother’s store in San Lucas. Her
father suspected that defendant and his wife were having an affair. During that
time, Jane spent time with defendant, who would take her for rides in his pickup
truck. He made her sit next to him and hold his hand. He would then take her
hand and put it on his groin. He would rub her thigh and move his hand up her
leg. Sometimes, he would open his fly and want her to touch his penis. She
declined, although on one occasion he pulled her hand to his exposed penis. On
other occasions, defendant pulled her head down to his crotch and asked her to
orally copulate him.

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FN2. We refer to her as Jane because her real name also begins with A.
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Jane said that once, they took a back road on their way home in the truck.
Defendant stopped in the countryside and asked her to walk up a hill with him.
There, he unbuttoned his pants and pulled out his penis. He wanted her to
orally copulate him. She refused but agreed to masturbate him. When they
returned to the truck and headed home, he stopped near some railroad tracks and
tried to have sexual intercourse with her but could not penetrate her.

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Jane testified that when she told her mother, her mother accused her of lying
and warned her not to tell the police because defendant would get deported.
Jane testified she spoke to the police twice about defendant molesting her. She
admitted that the second time, she told the officer about an incident that she had
not reported the first time, and at that time, she admitted to the officer that she
had purposefully concealed the additional incident because she thought it would
make her look bad.

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C.

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L. testified that she and defendant never had sex in A.’s bedroom. She said A.
never mentioned any abuse, and she never told A. that she did not believe her.
On the contrary, one day A. told L. that defendant had not molested her.
Finally, L. said she never saw defendant act inappropriately around A.

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THE DEFENSE

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People v. Villasenor, No. H035476, 2012 WL 573006, at *1-*2 (Cal. App. Feb. 21, 2012).
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STANDARD OF REVIEW

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

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

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

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

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

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

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

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

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

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

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

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

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

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‘reasonable application clause,’ a federal habeas court may grant the writ if the state court

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identifies the correct governing legal principle from [the] Court’s decisions but unreasonably

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

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

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

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law erroneously or incorrectly. Rather, the application must also be unreasonable.” Id. at 411.

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

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

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409.

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The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is

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in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court

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decision. Id. at 412. Clearly established federal law is defined as “the governing legal principle

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or principles set forth by the Supreme Court.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).

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Circuit law may be “persuasive authority” for purposes of determining whether a state court
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decision is an unreasonable application of Supreme Court precedent, however, only the Supreme

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Court’s holdings are binding on the state courts, and only those holdings need be “reasonably”

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applied. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).

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DISCUSSION

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Petitioner claims that: (1) his right to a speedy trial was violated, and (2) his due process

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rights were violated when the trial court admitted propensity evidence.

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A.

Right to Speedy Trial

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Petitioner asserts that the delay in bringing him to trial on January 25, 2010, after being

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arrested almost three years prior on March 1, 2007, violated his constitutional right to a speedy

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trial. Specifically, petitioner argues that the prosecutor engaged in bad faith when he withheld

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discovery for the purpose of delaying the jury trial. Because the facts pertaining to the

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procedural history are long and tangled, the court will repeat the facts as presented by the

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California Court of Appeal.

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In September 2006, school officials learned that A. had accused defendant of
molesting her from 1996 to 2002. In October, police learned about the alleged
molestation. In November, police referred the matter to the district attorney,
who filed a complaint in January 2007 charging defendant with continuous
sexual abuse. Defendant was arrested in March 1, 2007, and released on bail.
[FN3] He waived formal arraignment, pleaded not guilty, and waived time.
After the preliminary hearing was continued a few times, defendant waived the
hearing and was held to answer.

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FN3. The record does not clearly establish the date of arrest. However,
in his brief, defendant states that it was March 1, 2007. His record
citations do not unequivocally reflect the exact date but do not refute it
either. We accept his date.
The information was filed on November 7, 2007, and trial was set for May 12,
2008. In April, trial was reset for June 26, 2008. Thereafter, defendant waived
time only to November 10, 2008.
On November 6, 2008, the prosecutor sought a continuance to secure the
testimony of an expert on child sexual abuse accommodation syndrome
(CSAAS). The court found good cause and continued trial to November 17.
On November 13, defense counsel waived time to February 23, 2009. On
February 19, the prosecutor informed the court that he recently had received
information about a possible second victim (Jane) and sought a continuance to
investigate. Over defense counsel’s objection, the court found good cause but
did not reset the trial at that time.

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On February 23, 2009, the previous trial date, the prosecutor said he had located
Jane, and she was willing to cooperate. Defense counsel objected to a
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continuance beyond the 10-day speedy-trial grace period. He suggested that the
prosecutor could dismiss the case and refile it if he needed more time.
However, having previously found good cause, the trial court continued trial to
April 20, 2009.

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On April 14, 2009, the prosecutor sought another continuance due to the
unavailability of the two investigators on the case due to a family medical
emergency and prepaid vacation. The court found good cause to continue trial
and reset it for June 8.
On May 22, 2009, defense counsel moved to dismiss the case claiming a
violation of speedy-trial rights. [FN4] He also sought to exclude any and all of
the “Jane” evidence because he had not received any discovery. On May 28,
defense counsel renewed his claim of incomplete discovery. The court ordered
the prosecutor to produce all documentary evidence and make Jane available for
an interview before trial. By June 4, 2009, the prosecutor had produced all
documentary evidence but not Jane. The court again directed the prosecutor to
produce her and postponed ruling on defendant’s motion to exclude the “Jane”
evidence.
FN4. Defense counsel had previously moved to dismiss on April 8,
2009, but the motion was not ruled upon at that time.

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On June 8, 2009, the court granted the motion to exclude because the prosecutor
had not produced Jane for an interview. The prosecutor immediately moved to
dismiss the case without prejudice, and the court granted the motion. The
district attorney refiled the complaint on June 10. Defendant waived time and a
preliminary hearing but not his speedy trial objections. The information was
filed on August 17, defendant was arraigned, and trial was set for October 5,
2009.

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On September 2, 2009, defendant renewed his motion to dismiss. After a
hearing on October 1, the court denied the motion. Thereafter, defendant
renewed his motion to exclude all “Jane” evidence. The case remained set for
trial on October 5. On that day, over defendant’s objection, the court ruled that
the “Jane” evidence was admissible under Evidence Code section 1108. [FN5]

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FN5. Evidence Code section 1108 authorizes the admission of evidence
of uncharged sexual misconduct to show a propensity to commit such
acts. (People v. Falsetta (1999) 21 Cal.4th 903, 911-912 (Falsetta).)

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On October 6, 2009, the prosecutor said he needed to issue additional
subpoenas because of new information that had come to light concerning Jane.
The court “recessed” the trial until October 19, the last day to comply with
defendant’s statutory right to a speedy trial. On October 15, defense counsel
complained that because the prosecutor had recently produced numerous new
reports related to Jane, he could not properly respond by October 19. On
October 19, defense counsel waived time until November 2 in order to respond
to the new discovery. The prosecutor agreed to continue trial to November 2.
On November 2, 2009, the prosecutor informed the court that he had not
recovered from medical problems and was not ready to start trial and that Jane
had been hospitalized. Defense counsel objected to a continuance and
reasserted defendant’s right to a speedy trial. The court found good cause and
continued the trial to November 4. On that day, the prosecutor said that Jane
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would not be released from the hospital until she could walk. Defense counsel
objected and reasserted defendant’s rights. The court found good cause and
continued the case to November 6 for an update on Jane’s condition. On that
day, the prosecutor sought additional time because of Jane’s condition, but the
court set trial for November 9. On November 9, jury voir dire began.
On November 12, 2009, the prosecutor had a sudden serious medical
emergency, and the court found good cause to continue until November 13. On
November 13, the prosecutor was unavailable, and a substitute prosecutor
continue [sic] with voir dire. On November 16, the prosecutor was still
unavailable. Defense counsel was ready for trial and objected to a continuance.
The court found good cause and continued the case to November 17. On that
day, the substitute prosecutor reported that the prosecutor would be unavailable
for three weeks. Defense counsel conceded good cause but did not waive time
and stipulated to a trial date of January 25, 2010. The court found good cause,
dismissed the jury panel, and continued the trial to January 25, 2010. The trial
commenced on that day.
Villasenor, 2012 WL 573006, at *2-*4.

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1.

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A speedy trial is a fundamental right guaranteed the accused by the Sixth Amendment to

Applicable Law

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the Constitution and imposed by the Due Process Clause of the Fourteenth Amendment on the

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states. Klopfer v. North Carolina, 386 U.S. 213, 223 (1967). No per se rule has been devised to

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determine whether the right to a speedy trial has been violated. The Supreme Court has stated

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that “any inquiry into a speedy trial claim necessitates a functional analysis of the right in the

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particular context of the case.” Barker v. Wingo, 407 U.S. 514, 522 (1972). The Supreme Court

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went on to identify four factors which courts should analyze to determine whether a defendant

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has been deprived of his speedy trial rights: (1) the length of delay; (2) the reason for the delay;

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(3) the defendant’s assertion of his right; and (4) the prejudice to the defendant. See Doggett v.

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United States, 505 U.S. 647, 651 (1992); Barker, 407 U.S. at 530. None of the four factors are

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either a necessary or sufficient condition for finding a speedy trial deprivation. Id. at 533. They

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are related factors and must be considered together with such other circumstances as may be

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relevant. Id. However, deliberate delay attributable to the government designed to hamper the

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defense “weighs heavily against the prosecution,” while neutral reasons (such as court

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congestion) weigh less heavily. Delay “caused by the defense weighs against the defendant.”

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Vermont v. Brillon, 129 S. Ct. 1283, 1290 (2009).

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The Supreme Court split the first inquiry, the length of delay, into two steps. First, in
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order to trigger a full speedy trial analysis, “an accused must allege that the interval between

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accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’

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delay.” Doggett, 505 U.S. at 651-52. If this threshold is not met, the court does not proceed

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with the other Barker factors. United States v. Beamon, 992 F.2d 1009, 1012 (9th Cir. 1993).

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The Supreme Court has observed that courts generally have found delays approaching one year

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sufficient to trigger the Barker inquiry. Doggett, 505 U.S. at 652 n.1. The Ninth Circuit has

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found a six-month delay to constitute a “borderline case” sufficient to trigger an inquiry into the

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remaining Barker factors, see United States v. Valentine, 783 F.2d 1413, 1417 (9th Cir. 1986),

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although it also has observed that there is a general consensus among the courts of appeals that

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eight months constitutes the threshold minimum. United States v. Gregory, 322 F.3d 1157, 1162

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n.3 (9th Cir. 2003).

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If the delay passes this minimum threshold, then the court must consider “as one factor

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among several, the extent to which the delay stretches beyond the bare minimum needed to

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trigger judicial examination of the claim.” Doggett, 505 U.S. at 652; see also Brillon, 129 S. Ct.

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at 1287 (overall delay of nearly three years between arrest and trial triggered Barker evaluation

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of reasons for delay); United States v. Mendoza, 530 F.3d 758, 762 (9th Cir. 2008) (“If the length

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of delay is long enough to be considered presumptively prejudicial, an inquiry into the other

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three factors is triggered.”). In other words, the first Doggett/Barker factor directs that if the

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period between accusation and trial is sufficiently long to be presumptively prejudicial, the court

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must then inquire further as to all four factors.

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2.

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The California Court of Appeal recognized that Doggett and Barker were clearly

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established Supreme Court precedents, and recited the four factors laid out by the Supreme Court

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for analyzing a speedy trial rights claim. As to the first factor – the length of delay – the

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California Court of Appeal found that the three year delay was presumptively prejudicial. The

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California Court of Appeal then went on to consider the extent to which the delay stretched

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beyond the bare minimum and stated as follows:

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State Court Opinion

As an historical fact, the post-accusational delay lasted almost three years.
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However, for purposes of analysis, we do not count the periods of time for
which a defendant waived time against the prosecution. (See People v.
McDermott (2002) 28 Cal. 4th 946, 987; People v. Seaton (2001) 26 Cal. 4th
598, 633-634; People v. Anderson (2001) 25 Cal. 4th 543, 604, fn.21.)
Excluding these periods simply reflects that a defendant must assert his rights
when faced with a possible delay that he or she considers unnecessary,
unreasonable, or prejudicial. Moreover, a defendant should not be permitted to
voluntarily contribute to a delay by waiving time and then rely on that voluntary
contribution to establish that the delay was prejudicial and violated his or her
federal constitutional right.

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The record before us reveals that defendant generally waived time from March
8, 2007, until June 26, 2008, at which time he started entering limited time
waivers to specified dates, the last waiver up to November 10, 2008. During
this time, defendant also consented to a number of continuances, and that other
continuances were due to court congestion and the unavailability of counsel due
to conflicts with their other cases.
Under the circumstances, we shall not count the period up to November 10,
2008, in determining whether the post-accusational delay extended beyond the
minimum necessary to trigger a full analysis.
After November 10, 2008, defendant did not seek or consent to the continuance
the court granted to November 17, 2008. However, on November 17, he waived
time to February 23, 2009. [FN8] Thereafter, defendant did not consent to the
two continuances that the court granted the prosecution from February 23 to
June 8, 2009. On June 8, 2009, the case was dismissed. After it was refiled,
defendant regularly asserted his speedy-trial rights and preserved a claim of
post-accusation delay until trial on January 25, 2010, except, that is, for a
two-week period from October 19 to November 2, 2009, during which he
waived time.

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FN8. Defendant asserts that he did so “reluctantly.” However, the
record citation reveals that defense counsel waived time between
November 17, 2008, and February 2009 because the prosecutor had a
medical emergency. Moreover, a “reluctant” time waiver is still a
waiver.

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Given our survey of the time between defendant's arrest and trial, we find that
for purposes of analysis, the pertinent period of delay to which defendant did
not consent or waive time totaled less than one year – i.e., November 10 to
November 17, 2008; February 23 to October 19, 2009; and November 2 to
January 25, 2010. Accordingly, we do not find that the delay before trial
extended much, if at all, beyond the minimum necessary to trigger a full
examination of defendant's claim. Thus, this factor does not weigh in favor of
finding a federal constitutional speedy-trial violation.

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Villasenor, 2012 WL 573006, at *5.
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3.

Analysis

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The California Court of Appeal expressly and properly found that the three-year delay
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was presumptively prejudicial. The state appellate court then applied California law while
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considering “the extent to which the delay stretches beyond the bare minimum needed to trigger

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judicial examination of the claim.” Doggett, 505 U.S. at 651-52. Rather than consider the three-

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year delay from arrest to trial as a whole, however, the state appellate court expressly excluded

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from its consideration the delays attributable to petitioner’s waiver of time in the pretrial

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proceedings, and thus reduced the delay from three-years to less than one year. Because of that

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determination, the state appellate court found that the first Doggett/Barker factor did not weigh

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in favor of finding a constitutional violation.

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Here, the state court correctly identified the first Doggett/Barker factor, but rather than
consider the entire length of the delay, it excluded from consideration those portions of time

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petitioner waived or to which petitioner consented. Neither Doggett or Barker approached this

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factor in this manner, nor did the California Court of Appeal cite to any federal law in its

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application of this first factor. In discussing this first factor, the Supreme Court has not analyzed

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it in the way the California Court of Appeal did, i.e., by excluding from consideration

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petitioner’s waived time. Thus, even though the state appellate court correctly identified the

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clearly established Supreme Court law, the question is whether the state court’s application of

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Doggett/Barker was unreasonable. See Williams, 529 U.S. at 411 (“[A] federal habeas court

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

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relevant state-court decision applied clearly established federal law erroneously or incorrectly.

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Rather, that application must also be unreasonable.”); Middleton v. McNeil, 541 U.S. 433, 436

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(2004) (per curiam) (challenge to state court’s application of governing federal law must be not

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only erroneous, but objectively unreasonable).

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Assuming that the state court’s analysis was an unreasonable application of

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Doggett/Barker, the law is not clear as to whether this court is still required to apply AEDPA

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deference to the state appellate court’s decision here. See Berghuis v. Thompkins, 560 U.S. 370,

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390 (2010) (“Even if the state court used an incorrect legal standard, we need not determine

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whether AEDPA’s deferential standard of review, 28 U.S.C. § 2254(d), applies in this

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situation.”) (citing Williams v. Taylor, 529 U.S. 362, 397-98 (2000)). However, in this case, it is

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unnecessary to make that determination. “Courts can, however, deny writs of habeas corpus
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under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference

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applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her

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claim is rejected on de novo review, see § 2254(a).” Id. In other words, here, if petitioner

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cannot demonstrate that his speedy trial rights were violated under a de novo review, which is a

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more favorable standard of review for petitioner, then petitioner cannot succeed on his writ using

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the AEDPA deferential review.

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4.

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After determining that the three year delay is presumptively prejudicial, the court must

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De Novo Review

examine “the extent to which the delay stretches beyond the bare minimum needed to trigger

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judicial examination of the claim. Doggett, 505 U.S. at 652. The presumption of prejudice

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against the petitioner increases over time. Id. Courts have generally held that the inquiry is

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triggered when post-indictment (or, as in this case, post-information) delay approaches a year.

13

See, e.g., Doggett, 505 U.S. at 652 n.1 (finding presumptive prejudice in case of

14

eight-and-one-half month delay); McNeely v. Blanas, 336 F.3d 822, 826 (9th Cir. 2003) (holding

15

a three-year delay presumptively prejudicial); United States v. Gregory, 322 F.3d 1157, 1162

16

(9th Cir. 2003) (explaining that while a twenty-two month delay was presumptively prejudicial,

17

it did not weigh heavily in defendant’s favor because it was not excessively long); United States

18

v. Lam, 251 F.3d 852, 856 (9th Cir. 2001) (describing a six month delay as a “borderline case”).

19

The delay at issue here was from March 1, 2007 to January 25, 2010, which is 2 years, 9

20

months, and 25 days. This duration is sufficient to trigger the rest of the analysis, and weighs in

21

favor of petitioner.

22

Second, the court must consider “whether the government or the criminal defendant is

23

more to blame” for the delay. Doggett, 505 U.S. at 651. Deliberate delay by the government

24

“‘to hamper the defense’ weighs heavily against the prosecution.” Brillon, 129 S. Ct. at 1290

25

(quoting Barker, 407 U.S. at 531). A more neutral reason such as negligence should be

26

considered as well, although its weight should be less heavy. Barker, 407 U.S. at 531. “[A]

27

valid reason, such as a missing witness, should serve to justify appropriate delay.” Id. “In

28

contrast, delay caused by the defense weighs against the defendant under standard waiver
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doctrine.” Brillion, 129 S. Ct. at 1290. Because defense attorneys act as a defendant’s agent,

2

and are not state actors, “delay caused by the defendant’s counsel is also charged against the

3

defendant” whether counsel is privately retained or appointed by the state. Id. at 1290-91. The

4

Ninth Circuit considers the reason for delay to be the focal point of the inquiry. See United

5

States v. King, 483 F.3d 969, 976 (9th Cir. 2007) (reasons for delay weigh heavily against

6

finding a Sixth Amendment violation where district judge granted defendant’s requests for

7

continuances, defendant was explained his right to a speedy trial before agreeing to

8

continuances, the case was extraordinarily complex, and defendant substituted a new attorney

9

halfway through the proceedings).

10

Here, the record shows that, on March 1, 2007, petitioner was arrested and released on

11

bail. From March 1, 2007 until November 10, 2008, petitioner generally waived time by

12

consenting to continuances, whether they were requested by the parties, were due to court

13

congestion, or conflicted with the attorneys’ other cases. Thus, for approximately one year and

14

eight months, the delay cannot be said to be attributable to the prosecution.

15

A few days prior to November 10, 2008, defense counsel voluntarily provided A.’s

16

school records to the prosecutor. Defense counsel had been planning to use A.’s school records

17

to demonstrate that A. did not complain to any school authorities during the period of

18

molestation. On November 6, 2008, based on the receipt of A.’s school records provided by

19

defense counsel, the prosecutor sought a continuance to secure an expert on sexual abuse

20

accommodation syndrome. Over objection, the trial court found good cause and continued the

21

trial from November 10, 2008 to November 17, 2008. For these seven days, the delay was

22

attributable to the prosecution.

23
24
25

Thereafter, defense counsel waived time from November 17, 2008 to February 23, 2009.
Thus, an additional three months cannot be attributable to the prosecution.
From February 23, 2009, to April 20, 2009, the prosecutor requested time to investigate a

26

new victim/witness, Jane. Defense counsel objected to a continuance and suggested that if the

27

prosecutor needed more time, the prosecutor could dismiss the case and re-file it so as to not run

28

afoul of the speedy trial period. The court granted the continuance. Due to the unavailability of
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the two investigators, the prosecutor requested another continuance, which the court granted.

2

Thus, the trial was continued from April 20, 2009 to June 8, 2009. On May 22, 2009, defense

3

counsel moved to dismiss the case based on a speedy trial violation. Defense counsel also

4

requested the exclusion of any Jane evidence because defense counsel had not received any

5

discovery. On June 8, 2009, because the prosecutor had still not produced Jane, the trial court

6

granted defense counsel’s motion to exclude Jane evidence, and the prosecutor moved to dismiss

7

the case without prejudice. On June 10, 2009, the prosecutor refiled the complaint. Petitioner

8

waived time until July 24, 2009, in order to retain counsel, but petitioner maintained his speedy

9

trial objections. The trial was set for October 5, 2009. On October 6, 2009, the prosecutor

10

requested additional time to obtain additional subpoenas because new information had “come to

11

light” regarding Jane. The court “recessed” the trial until October 19, 2009. On October 15,

12

2009, defense counsel complained that defense counsel could not properly respond to the new

13

discovery by October 19, 2009, so defense counsel waived time until November 2, 2009, to

14

respond to the new discovery. From November 2, 2009, through January 25, 2010, either Jane or

15

the prosecutor incurred medical problems necessitating a continuance of trial. Trial began on

16

January 25, 2010.

17

Thus, the total delay attributable to the prosecution was approximately 11 months: from

18

November 10, 2008 through November 17, 2008, and then from February 23, 2009 through

19

January 25, 2010.2 The record demonstrates that the prosecution’s requests for continuances

20

were based on the unavailability of witnesses, medical emergencies of the prosecutor as well as

21

Jane, and the investigation of Jane. Aside from the petitioner’s unsupported statements to the

22

contrary, there is no evidence suggesting that the prosecutor’s actions were a deliberate attempt

23

to delay the trial. See Barker, 407 U.S. at 531. At most, the prosecutor’s actions regarding the

24

production of the evidence about Jane and the production of Jane herself were negligent. The

25
26
27
28

2

The court notes that on October 15, 2009, defense counsel requested a continuance
from October 19, 2009 to November 2, 2009 in order to prepare a response to the prosecution’s
new discovery about Jane. The court attributes the delay from October 19, 2009 to November 2,
2009 to the prosecution, but acknowledges that an argument could be made that such delay
should not be attributable to the prosecution.
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California Court of Appeal recognized that the delay in producing the Jane evidence was

2

“inexplicabl[e],” and that neither the record nor the prosecutor provided any reasonable

3

explanation for the delay in production. Nonetheless, the state appellate court ultimately

4

concluded, and the record supports, that the delayed production of discovery was not the reason

5

trial had to be continued from April to June 2009; rather, the delay from April to June 2009 was

6

due to the unavailability of two prosecution witnesses. Thus, a total of approximately 1 year and

7

11 months of the delay was not attributable to the prosecution. Specifically, from March 1, 2007

8

through November 10, 2008, and then from November 17, 2008 through February 23, 2009,

9

defense counsel either waived time, or the delay was due to court congestion or conflicts with

10

the attorneys’ schedules. Weighing the reasons for the delay, which appear valid, as well as the

11

length of the delay for which the prosecutor was responsible, which is less than half of the

12

overall delay of 2 years, 9 months, and 25 days, does not weigh strongly in favor of finding a

13

speedy trial violation.

14

Third, a finding that a defendant repeatedly asserted his speedy trial right is entitled to

15

strong evidentiary weight under Barker. United States v. Loud Hawk, 474 U.S. 302, 314 (1986).

16

However, if a defendant asserts his speedy trial rights after requesting continuances, this factor

17

does not weigh in favor of finding a speedy trial violation. United States v. Corona-Verbera,

18

509 F.3d 1105, 1116 (9th Cir. 2007). Here, although petitioner asserted his constitutional right

19

to a speedy trial, he also acquiesced in over half of the delay from March 1, 2007 through

20

November 10, 2008, and then from November 17, 2008 through February 23, 2009. Thus, this

21

factor weighs only somewhat in petitioner’s favor. See United States v. King, 483 F.3d 483, 976

22

(9th Cir. 2007) (third Barker factor did “not strongly counsel in favor of finding a Sixth

23

Amendment violation” because “[a]lthough [petitioner] at times asserted his right to a speedy

24

trial, at other times he acquiesced in and sought continuances and exclusions of time”).

25

Finally, petitioner was not meaningfully prejudiced by the delay. Actual prejudice from

26

delay can result from oppressive pretrial incarceration, the anxiety and concern of the accused,

27

and the possibility that the accused’s defense will be impaired by dimming memories and loss of

28

exculpatory evidence. Doggett, 505 U.S. at 654; Barker, 407 U.S. at 532. Of these three
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potential forms of prejudice, the last one – impairment of the accused’s defense – is the most

2

important. Doggett, 505 U.S. at 564; see Barker, 407 U.S. at 534-35 (holding that a five year

3

delay between arrest and trial did not deprive defendant of right to speedy trial where defendant

4

could show no impairment to defense due to delay). No showing of prejudice is required when

5

the delay is great and attributable to the government, but when, as here, the government has been

6

negligent at most, and the delay does not much exceed the minimum time required to trigger the

7

full Barker inquiry, the court must consider the amount of delay in relation to particularized

8

prejudice. United States v. Gregory, 322 F.3d 1157, 1162-63 (9th Cir. 2003); see, e.g., United

9

States v. Drake, 543 F3d 1080, 1086 (9th Cir. 2008) (finding that although defendant was

10

incarcerated for two years between indictment and conviction and suffered anxiety and concern,

11

there was no showing delay impaired the defense: “No witnesses died or disappeared; nothing in

12

the record demonstrates that evidence shown to be helpful to the defense was lost.”)

13

Here, petitioner argues that he suffered prejudice because the prosecutor negligently and

14

intentionally delayed the case to gain an advantage at trial.3 Specifically, petitioner argues that

15

defense counsel informed the court that petitioner had run out of money and counsel was being

16

forced to represent petitioner for free or “cut corners.” As the California Court of Appeal

17

pointed out, petitioner’s concern that counsel was running out of money is a risk that defendants

18

take when they retain counsel. Villasenor, 2012 WL 573006, at *13-*14. The state appellate

19

court recognized that, if a lengthy delay is unjustified, then perhaps the additional financial

20

burden would become prejudicial for purposes of a speedy trial analysis. Id. at *13. “However,

21

delays or continuances for good cause are a routine, reasonably expected occurrence in the

22

progress of any trial, and the possibility of such a delay must be factored in to the costs that one

23
3

24
25
26
27
28

The court notes that petitioner raised more claims of prejudice on direct appeal than he
did in his federal habeas petition. For example, on appeal, petitioner argued that because of the
delay, “he lost witnesses and important records; the memories of witnesses had faded; he ran out
of money to pay retained counsel; and most significantly, the prosecutor was able to introduce
the damning Evidence Code section 1108 evidence.” Villasenor, 2012 WL 573006, at *10.
However, in petitioner’s federal petition, he appears to have withdrawn all claims of prejudice
except for two: that petitioner had run out of money, and that the defense witnesses were getting
weary of the “false starts,” and one of them hung up on defense counsel’s secretary. (Doc. No.
2 at 5.)
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reasonably should anticipate and expect to pay.” Id. Moreover, the state appellate court

2

observed that because all the continuances here were based on good cause, petitioner would have

3

incurred these “additional” expenses even if Jane was discovered earlier on in the case. Id.

4

Finally, the record does not demonstrate, nor does petitioner proffer, any evidence suggesting

5

that petitioner’s defense was impaired or diminished due to petitioner’s inability to pay. Id.

6

Petitioner also asserts that he was prejudiced because the defense witnesses were growing

7

“weary” of the defense team, and specifically, that one critical witness had hung up on defense

8

counsel’s secretary. Petitioner explains that when defense counsel’s secretary phoned one of the

9

witnesses, A.’s babysitter, “the babysitter complained about the number of delays, wanted to

10

know when the trial was going happen, and hung up.” Villasenor, 2012 WL 573006, at *11.

11

The California Court of Appeal rejected this claim, concluding that petitioner was relying on

12

nothing but speculation to conclude that any witness’ weariness was because of the “post-

13

accusational delay.” Id. at *11. Although defense counsel expressed confidence that A.’s

14

babysitter would testify, ultimately A.’s babysitter did not. Id. However, the record is silent as

15

to why A.’s babysitter was not called to testify. The California Court of Appeal reasoned that it

16

was possible that defense counsel failed to re-subpoena A.’s babysitter, which, if true, would not

17

establish that her absence was due to any post-accusational delay.

18

Petitioner does not give too much insight into the substance about which A.’s babysitter,

19

a potential impeachment witness, would have testified except to say that the testimony would

20

have “undercut [A.’s] claim that she was molested when left home alone, and corroborate[d]

21

[A.’s] mother that she was babysat this entire time.” (Doc. No. 2 at 5; Resp. Ex. D at 9, 15.) At

22

trial, A.’s mother testified for the defense and contradicted A.’s testimony that A.’s mother ever

23

had sex with defendant in A.’s room, or in any other room besides the master bedroom. (Resp.

24

Ex. E, RT 1223-24.) A.’s mother also testified that between 1993 and 2003, there was never an

25

occasion when A. would be left at home alone after school because either A.’s mother would

26

pick her up directly from school, directly from the babysitter’s house, or A.’s mother would

27

already be home from work. (Id., RT 1225-27.) This testimony contradicted A.’s testimony that

28

sometimes A. was home alone with petitioner after school for an hour or so when she decided
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she was not going to go to the babysitter’s house. (Id., RT 1134-36.)

2

The court finds that the absence of A.’s babysitter as a witness, even assuming that she

3

failed to testify due to post-accusational delay, did not meaningfully prejudice petitioner’s

4

defense. First, according to petitioner, A.’s babysitter’s testimony would corroborate A.’s

5

mother’s testimony that A. was never left alone at the house after school with petitioner.

6

Because the jury already heard this evidence from A.’s mother, A.’s babysitter’s testimony

7

regarding the same would merely have been cumulative. Second, A. testified that the

8

molestation occurred in A.’s own bed with and without A.’s mother being present in A.’s room

9

on the floor or on the bed with A. and petitioner. (Id., RT 1090-95.) Thus, even if the jury had

10

believed that A. was never home alone after school with petitioner, A.’s babysitter’s testimony

11

would have done nothing to refute A.’s testimony regarding petitioner’s actions in A.’s bedroom

12

while A.’s mother was home.

13

Weighing all the factors together, the court finds that although the 2 year, 9 month, and

14

25 day delay was presumptively prejudicial, the prosecution cannot be held accountable for most

15

of the delay. Moreover, there was no evidence that the 11 month portion of the delay

16

attributable to the prosecution resulted from an intentional dilatory tactic or bad faith attempt to

17

hamper the defense. Finally, petitioner has not shown actual prejudice from the delay. For all

18

these reasons, the court finds that the delay in this case did not violate petitioner’s constitutional

19

right to a speedy trial.

20

B.

21

Admission of Propensity Evidence
Petitioner argues that the trial court violated his right to due process by admitting the

22

Jane evidence and telling the jury that if it found by a preponderance of the evidence that

23

petitioner committed other acts of sexual offenses, it could infer that petitioner had a propensity

24

toward committing sexual offenses.

25

Even if this evidence were introduced to show that petitioner committed the crime for

26

which he was on trial, the Supreme Court has not held that propensity evidence violates due

27

process. See Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991) (reserving the question of whether

28

admission of prior crimes evidence to show propensity would violate the Due Process Clause);
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see also Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (“[The Supreme Court] has

2

not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence

3

constitutes a due process violation sufficient to warrant issuance of the writ.”). Based on the

4

Supreme Court’s reservation of this issue as an “open question,” the Ninth Circuit has held that a

5

petitioner’s due process right concerning the admission of propensity evidence is not clearly

6

established as required by AEDPA. Alberni v. McDaniel, 458 F.3d 860, 866-67 (9th Cir. 2006).

7

Thus, petitioner cannot be entitled to habeas relief on this claim. See, e.g., Larson v. Palmateer,

8

515 F.3d 1057, 1066 (9th Cir. 2008) (noting that because the Supreme Court expressly reserved

9

the question of whether using evidence of prior crimes to show propensity for criminal activity

10

could ever violate due process, the state court’s rejection of the claim did not unreasonably apply

11

clearly established federal law).

12

To the extent that petitioner is arguing that CALCRIM No. 11914 violated his right to due

13

process, the court is unpersuaded. The Due Process Clause of the Fourteenth Amendment

14

requires the prosecution to prove every element charged in a criminal offense beyond a

15

reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). The instruction given did nothing to

16

lower this standard of proof, and, in fact, reinforced the reasonable doubt standard: “The People

17

must still prove each element of every charge beyond a reasonable doubt.” Because the disputed

18
19
20
21
22
23
24
25
26
27
28

4

CALCRIM No. 1191 provided: “[¶] The People presented evidence that the
defendant committed a crime of lewd or lascivious act against a child, Penal Code Section
288(a), that was not charged in this case. This crime is defined for you in these instructions.
You may consider this evidence only if the People have proved by a preponderance of the
evidence that the defendant in fact committed the uncharged offenses. [¶] Proof by a
preponderance of the evidence is a different burden of proof from proof beyond a reasonable
doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely
than not that the fact is true. [¶] If the People have not met this burden of proof, you must
disregard this evidence entirely. If you decide that the defendant committed the uncharged
offense, you may but are not required to conclude from that evidence that the defendant was
disposed or inclined to commit sexual offenses, and based on that decision, also conclude that
the defendant was likely to commit and did commit the crime of Penal Code Section 288.5, the
continuous sexual abuse of a child as charged here. [¶] If you conclude that the defendant
committed the uncharged offense, 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 Penal
Code Section 288.5. The People must still prove the charge beyond a reasonable doubt. Do not
consider this evidence for any other purpose.” RT at 1303-04.
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instruction did not fall afoul of Winship, petitioner’s claim is DENIED.

2

CONCLUSION

3

The petition for writ of habeas corpus is DENIED. The federal rules governing habeas

4

cases brought by state prisoners require a district court that denies a habeas petition to grant or

5

deny a certificate of appealability (“COA”) in its ruling. See Rule 11(a), Rules Governing §

6

2254 Cases, 28 U.S.C. foll. § 2254. Petitioner has not shown “that jurists of reason would find it

7

debatable whether the petition states a valid claim of the denial of a constitutional right.” Slack

8

v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a COA is DENIED.

9
10
11
12

The Clerk is instructed to enter judgment in favor of respondent and close the file.
IT IS SO ORDERED.
8/21/14
DATED: __________________

_________________________
LUCY H. KOH
United States District Judge

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