Torres v. Madden
Filing
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REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus. Objections to R&R due by 7/6/2018. Replies due by 7/20/2018. Signed by Magistrate Judge Peter C. Lewis on 6/19/2018.(All non-registered users served via U.S. Mail Service)(mpl)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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MIGUEL ANGEL TORRES,
Case No.: 3:17-cv-0865-JLS-PCL
Petitioner,
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v.
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RAYMOND MADDEN, et al.,
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Respondents.
REPORT AND RECOMMENDATION OF
U.S. MAGISTRATE JUDGE RE:
PETITIONER’S PETITION FOR WRIT OF
HABEAS CORPUS
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I. INTRODUCTION
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Petitioner MIGUEL ANGEL TORRES has filed a Petition for Writ of Habeas
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Corpus pursuant to 28 U.S.C. section 2254 challenging his convictions in San Diego
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Superior Court case no. SCD243940 for lewd and lascivious acts on a child under the age
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of 14. (Doc. 1.) Torres contends his due process rights were violated by the trial court’s
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admission of prior convictions for similar acts against his former stepdaughters; the trial
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judge improperly responded to the jury’s questions; and trial counsel provided
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constitutionally ineffective assistance. (Id. at 6-26.) He also argues the cumulative effect
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of all these errors deprived him of a fair trial. (Id.)
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The Honorable Janis L. Sammartino referred the matter to the undersigned Judge
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for Report and Recommendation pursuant to 28 U.S.C. section 636(b)(1)(B) and Local
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Civil Rule 72.1(c)(1)(d). After a thorough review of the petition, answer, state court
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record, and state court decisions, the Court recommends DENYING relief.
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II. FACTUAL BACKGROUND
This Court gives deference to state court findings of fact and presumes them to be
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correct; Petitioner may rebut the presumption of correctness, but only by clear and
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convincing evidence. See 28 U.S.C. § 2254(e)(1); see also Parle v. Fraley, 506 U.S. 20,
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35-36 (1992) (holding findings of historical fact, including inferences properly drawn
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from these facts, are entitled to statutory presumption of correctness). Torres has not
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presented a rebuttal to the facts as described by the state appellate court. Accordingly, the
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state appellate court’s recitation of the lengthy facts appears below:
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A. The People’s Case
The victim is the daughter of Janet G. (mother) and Carlos C., Sr.
(father). She was 12 years old at the time of trial in late 2013. Mother and
father had four children together (from oldest to youngest): (1) G.C. (the
older of the victim’s two brothers), (2) K.C. (the victim’s sister), (3) C.C., Jr.
(the younger of the victim’s two brothers), and (4) the victim. Mother and
father separated in 2004.
Mother met Torres in 2006. She testified that Torres told her about a
month after she met him that he was a registered sex offender. He informed
her he had been convicted of an offense involving his two stepdaughters.
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Mother and Torres began dating a few months later. In around 2007,
about a year and a few months after he met mother in 2006, Torres moved in
with her and her four children in a house in Lakeside where they were living.
About one and a half years later they moved into an apartment on Home
Avenue. In 2010 they moved again to a residence on Craigie Street. Torres
and mother married in 2011. During their relationship Torres and mother
had a child of their own, M.
The Lakeside house
The victim and one of her two brothers – C.C., Jr. – shared one of
three bedrooms in the Lakeside house. The victim testified they had bunk
beds in that bedroom and they would “switch it around” as to who would
have the top bunk and who would have the bottom one. The victim and C.C.,
Jr. sometimes left their bedroom door open when they slept.
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The victim testified that when she was about seven or eight years old,
Torres began touching her while she was asleep in her bedroom in the
Lakeside house. Torres would touch her upper thigh, his hand moving in a
circular fashion. She also felt his hands on her stomach, from her waist to
her lower chest. When asked whether Torres touched her vaginal area, the
victim answered, “Somewhat.” The prosecution asked her to describe how
close Torres’s hand came to her vagina “on a scale of 1 to 10, 10 being on
[her] vagina.” She replied, “Seven.” She did nothing when she felt Torres
rubbing her body because she was “scared” of him.
The victim also testified that Torres would come into her room and
rub her body about two times per week when she and the family lived in
Lakeside. She indicated he would do it early in the morning close to the time
she had to get up to go to school. Torres worked early in the morning.
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The victim testified she felt “disgusted” when Torres rubbed her legs
and body. She indicated this touching was “different.” When Torres came in
to the room just to wake her up, he would turn on the light and would not
touch her; the light would wake her up. Sometimes she would try to stop his
touching her by “pushing him away.” When she did this, he never said
anything, like “I was just trying to wake you up.”
The Home Avenue apartment
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The Home Avenue apartment had two bedrooms. The victim and her
sister – K.C. – shared a bedroom and slept in the same bed, and C.C., Jr.
slept on the couch.
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The victim testified that Torres’s touching her happened “once in a
while,” about twice a month, in the same way in her bedroom at the Home
Avenue apartment. She testified that K.C. was never in bed when Torres
came into the room and touched her. She did not know where K.C. was
during those times.
While the family lived in the Home Avenue apartment, the victim
learned that Torres was a registered sex offender. She and a couple of her
friends searched for registered sex offenders in their area using an “iPod”
application. They learned that Torres had been convicted of a crime
involving children under the age of 14 years. When the victim spoke with
her mother about it, her mother said it was not true.
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The Craigie Street residence
The Craigie Street house had three bedrooms, and the victim and
C.C., Jr. initially shared one of them. They had separate beds, about three
feet apart. K.C. moved out of the house in the fall of 2012 to attend college
in Berkeley, and the victim then had her own room, but only for a two-week
period.
During the time the family lived at the Craigie Street address, Torres
worked for a trucking delivery company. He would wake up between 4:00
and 5:00 a.m. and start work at 5:00 or 6:00 a.m. Mother would wake up the
children at 6:20 a.m., after Torres left for work, to get them ready for school.
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The lock on the victim and C.C., Jr.’s bedroom door broke. The
victim testified that in order to keep the door closed at night, she and her
brother placed a towel or piece of cloth in the door jamb. She testified that to
open the bedroom door, someone would need to push on the door, which
made a creaking noise that was loud “enough so somebody could hear it.”
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The victim testified that Torres’s touching her continued at the Craigie
Street house both before and after the lock broke. The touchings happened in
the same way and increased in frequency to about three times per week.
The victim’s disclosures to her friends
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The victim testified she did not tell anyone about the touching when
they lived in Lakeside or on Home Avenue because she was scared she
would be taken away from her family.
In early October 2012, when she was 11, the victim told three friends
at her middle school about the touchings: Van, Jasmin, and Carolina. She
first disclosed the touchings to Van and Carolina in private Facebook
messages. Van and Carolina then told Jasmin. The victim testified she then
chatted with all three friends on Facebook about what Torres was doing to
her. While chatting with them she would cut herself on the arm with a razor
blade and show them pictures of herself cutting her arm.
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The victim testified she cut her arm because she “felt so worthless.”
She would ask herself, “What did I do wrong?” She described holding the
blade and “slid[ing] it against [her] skin.” She also told her friends that she
wanted to die and that she had tried to kill herself. Jasmin testified that the
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victim told her she was afraid of her stepdad (Torres) because he might “hurt
her again.”
The victim further testified that she and her family took a weekend
trip to visit K.C. in San Francisco. She testified that during the trip, Van,
Jasmin, and Carolina urged her through Facebook to tell the school
counselor, Sergio Hernandez, about the touching.
Carolina, who was 12 years of age at the time of the trial, testified she
was the victim’s friend and classmate. In October 2012 the victim told her
that her stepfather had been touching her “in a bad way.” The victim also
told her she was cutting her wrists and wanted to die. Carolina testified she
told the victim to tell her mother about what was happening to her. The
victim told Carolina she was “scared” of Torres.
Jasmin, who also was 12 years of age at the time of the trial, testified
that the victim told her in October 2012 that her stepfather (Torres)
“sexually harassed” her and she was afraid of him. Jasmin also testified that
the victim said “she was afraid that he was going to hurt her again.” The
victim told Jasmin she wanted to die because her life was “messed up
already.” The victim sent her pictures on Facebook showing the victim
cutting her arm. Jasmin testified she told the victim to talk to the school
counselor.
Van, who also was 12 years of age at the time of the trial, testified that
the victim told her in October 2012 about the victim’s stepfather touching
her. Van testified she convinced the victim to tell the school counselor about
what was happening to her.
The victim’s disclosures on October 16, 2012, to the school counselor and
the school police
On Tuesday, October 16, 2012, the day the victim returned to school,
Van took her from their physical education class to the office of the school
counselor, Hernandez. The victim talked to Hernandez about what Torres
was doing to her, and Hernandez contacted the school’s police officer,
Officer Carla Kuamoo.
Hernandez testified that the victim appeared “emotionally upset” and
“maybe a little bit embarrassed.” The victim told him, “I feel like somebody
is touching my body at night, my legs, my body.” She said she knew her
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bedroom door had been opened because a towel she put between the door
and door frame would be on the floor in the morning. The victim identified
her stepdad as the person who was touching her. The victim told Hernandez,
“My stepdad is a registered sex offender.” Soon thereafter Hernandez ended
the interview and arranged to have Officer Kuamoo come immediately to his
office.
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While the victim waited outside his office, Hernandez briefed Officer
Kuamoo about what he had learned. Officer Kuamoo then walked with the
victim to Officer Kuamoo’s office. Officer Kuamoo testified that the victim
was “very quiet and appeared sad.” The victim told Officer Kuamoo that
Torres, her stepfather, was touching her all over her body in the nighttime
and that it had been happening since she was nine years old. The victim said
that she had only told three female sixth grade students at the school before
talking with Hernandez.
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Officer Kuamoo testified the victim told her she decided to tell
Hernandez about the touchings because she “couldn’t take it anymore.” The
victim said she put a towel in the door jamb of her bedroom door every night
to try to secure the door because it did not have a lock. She told Officer
Kuamoo she would find the towel on the floor in the morning. The victim
indicated she sometimes saw Torres come into her room, and he would
“speed walk” out of the room if he realized she was awake.
Officer Kuamoo also testified the victim told her Torres last touched
her “[a]bout one week ago,” and she found out that Torres was a registered
sex offender because she looked him up on the registered sex offender
Internet website.
Detective Dickinson’s October 16, 2012 recorded interview of the victim,
and the victim’s recantation letter
Later that same day, San Diego Police Department Detective Steven
Dickinson interviewed the victim in Hernandez’s office. The audio
recording of the interview was played for the jurors, who were given copies
of the transcript of the interview.
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During the interview, the victim, who was then 11 years old, told
Detective Dickinson that Torres had been touching her. She said Torres
thought she did not know about the touching and “he [thought] he [could]
get away with it.” She told Detective Dickinson that the last time it
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happened was about a week earlier when Torres walked into her room and
touched her leg while she was sleeping. She said he “stood up and just got
out” when she moved her leg. The victim also said Torres would touch her
on her thighs, and he would touch her breasts under her pajamas. He had
been touching her there about three times a week for about two years. When
Detective Dickinson asked her how she knew it was Torres who was
touching her, the victim replied, “Cause I woke up and I saw him.”
Detective Dickinson scheduled a forensic interview at Rady
Children’s Hospital for the following day.
The victim testified she was scared to go home after she was
interviewed because she knew her mother would not believe her. Her mother
came to pick her up from school, and Torres, M., and C.C., Jr. were with her
mother in the car. When the car circled the campus a few times and then
appeared to be leaving, police officers stopped the vehicle and detained
Torres.
A female police officer spoke to mother before letting her take the
victim home. When mother was told about the allegations against Torres,
she appeared to be upset and denied that anything had happened. The officer
informed the mother about the forensic interview of the victim scheduled for
the next day and instructed mother not to talk to the victim about the
allegations.
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The victim testified that mother drove her home. On the way, mother
stopped at a store, where she met the victim’s two aunts. The victim testified
her mother yelled at her and said she lied about the touching. Mother and the
victim’s aunts told her the touchings were just dreams.
The victim also testified that, when they got home, mother angrily
told her that everything that happened was her fault, and it was “only
nightmares.” Mother told the victim to tell the authorities she was just
having nightmares, so that Torres could come home. That night, while
mother was watching her, the victim wrote a two-page recantation letter
saying she had just been having nightmares. Mother then read the letter. The
victim testified she decided to write the letter because “[she] didn’t want
[her] mom to be mad at [her] anymore.”
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First recorded forensic interview of the victim (October 17, 2012)
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The next day, Wednesday, October 17, 2012 – just before her forensic
interview – the victim gave to Detective Dickinson at the Chadwick Center
at Rady’s Children’s Hospital the recantation letter she had written after her
mother told her that what had happened to the victim was not real and was
only nightmares.
Laurie Fortin (Fortin), a forensic interviewer at the Chadwick Center,
then interviewed the victim. The audio recording of the interview was
played for the jurors, who were given copies of the transcript of the
interview.
During the interview, the victim told Fortin that a couple of days
earlier Torres shook her leg to wake her up because she was having
nightmares. She said she had asked the detective if she could get help from
the hospital because every day she was “hav[ing] nightmares where [she]
feel[s] someone breathing and someone touching [her].” The victim told
Fortin she had been having these nightmares since she was eight years old.
The victim also said she did not know who was touching her in her
nightmares. She told Fortin she only saw her stepdad one time when he
woke her up. She also said she wrote the letter she had just given to
Detective Dickinson “[be]cause [she] needed help.”
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The victim also told Fortin that she wrote the letter “last night” when
she was alone in her room. The victim said that, before she wrote the letter,
she woke up because she felt someone touch her and she ran to the bathroom
and then told her mom. Mother told her it was “just [her] imagination.” The
victim said that “[n]othing” happened in the car the day before when mother
drove her home, and she “just stayed quiet” in the car while doing her
homework. She told Fortin she was living on Craigie Street, and three times
a week she was having the nightmare about somebody breathing and
touching her. She said these nightmares started when she was living in
Lakeside, but she had them less often then.
Fortin told the victim she had spoken with Detective Dickinson, and
he said the victim had told him about her stepdad touching her chest. The
victim acknowledged she had “told him about that,” and then told Fortin,
“[B]ut like now I know it wasn’t him.”
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Detective Dickinson’s second recorded interview of the victim (October 18,
2012)
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On Thursday, October 18, 2012, the day after the forensic interview at
the Chadwick Center, Detective Dickinson again interviewed the victim
briefly at her school in Hernandez’s office. The audio recording of the
interview was played for the jurors, who were given copies of the transcript
of the interview.
During the interview, Detective Dickinson told the victim he had
learned she was cutting her arm and wanted to know why. The victim told
him she was cutting her arm because of “[p]ressure” from “[y]ou guys.”
Detective Dickinson asked the victim when she cut her arm, and she replied,
“Like Friday” (October 12). Detective Dickinson responded, “Okay, but you
didn’t know me on Friday,” and added, “So I couldn’t have caused
[pressure].” The victim said, “I know,” and then told him, “But like, now I
have a lot of pressure.”
Detective Dickinson testified that he took a photograph during the
interview of the 16 cuts on the inner side of the victim’s left forearm, then
took her into protective custody and had her transported to the Polinsky
Children’s Center. The victim did not want to go there and became
emotional. At the Polinsky Children’s Center, Detective Dickinson tried to
calm her by telling her she could still attend her same school and the social
worker would try to make her routine as normal as possible. Detective
Dickinson testified that the victim did not ask to live with mother. He also
testified that he told the victim that he and Fortin believed “[her] first story,”
and the victim replied, “You and my friends are the only ones that believe
me.” The victim’s demeanor then changed and she seemed happy. Detective
Dickinson testified “she was completely different” and “she went from
frowning to smiling.”
Fortin’s second recorded forensic interview of the victim (October 23, 2012)
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Fortin conducted a second forensic interview of the victim on
Tuesday, October 23, 2012. A video recording of the interview was played
for the jury.
During the interview the victim said she was living at the Polinsky
Children’s Center. When Fortin asked her, “How is it?,” she replied, “Fun.”
When Fortin told the victim she (the victim) was feeling bad the last time
they met because her stepdad had gone to jail and her mother was upset, the
victim replied, “The whole world was upset.” Fortin asked whether she was
still feeling bad, and the victim replied, “No,” indicating that the Polinsky
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Children’s Center had helped her to feel better.
The victim told Fortin that Torres began touching her when she was
“like [10].” The last time he touched her was about two weeks earlier. She
said he grabbed her leg and “that’s when I saw him.”
Fortin asked the victim to tell her about the other times Torres touched
her. The victim replied, “I would be sleeping, but I’m not dumb.” She added
that she could “feel everything.” She said she would hear the door creaking
as it opened. The victim then told Fortin that, when she heard the noise, she
“would just, like, open my eyes and when [Torres] saw me open my eyes, he
would get out.”
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When Fortin asked about the touchings, the victim said she “would
like act asleep” when Torres was touching her. When she opened her eyes,
Torres would “disappear or something,” but sometimes she would “see him
walking out.” Torres touched the victim’s “leg muscles,” and he also
touched her, “in a poking manner, on her stomach.”
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The victim told Fortin she had told her friend Carolina that she wanted
to kill herself. When Fortin asked the victim why she started cutting herself,
she replied, “because whenever I thought of it, I thought, I just thought my
life was ruined.” Fortin asked, “Thought about what?” The victim answered,
“You know, about what [Torres] was doing in the night.”
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Child Sexual Abuse Accommodation Syndrome Evidence
In addition to testifying for the prosecution as a percipient witness
regarding her observations during her forensic interviews of the victim,
Fortin also testified as an expert witness. [Footnote omitted.] She testified
that, in the context of child abuse, “‘recantation’ is believed to be . . . a stage
of a child’s disclosure process for some kids, a minority of kids.” She
referenced a study that found three “statistically significant predictors” of
recantation among child sexual abuse victims: (1) an offender who is “a
parental figure, typically . . . a father figure, mom’s boyfriend, stepfather”;
(2) “a nonsupportive primary caretaker, which was the moms [sic] in 90
percent of the cases”; and (3) the child’s age.
Fortin also testified about “delayed disclosure” in the child abuse
arena. She told the jury that “the majority of kids actually delay in disclosing
abuse.” She testified that studies show children do not exhibit any particular
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mannerisms or behavior when they disclose sexual abuse. She also discussed
literature that suggests older children – ages 10 years “up to teens” – are
more likely than younger age children to disclose abuse to their peers. Fortin
also testified that a child who has received negative feedback after disclosing
abuse might recant but then “reaffirm” the initial disclosure after receiving
positive feedback.
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Torres’s prior sexual offenses (Pen. Code, § 288 (a))
The parties stipulated that in February 2002 Torres was charged under
Penal Code section 288(a) with 26 counts of committing lewd and lascivious
acts on a child under the age of 14 years between 1989 and 1999. Those
offenses involved Torres’s two stepdaughters from a prior marriage, V. and
G.
The parties also stipulated that in May 2002 Torres pleaded guilty to
committing three of those counts against V. and three of those counts against
G. and that the remaining charges were dismissed.
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As discussed more fully, post, V., G., and retired San Diego Police
Department Detective James McGhee all testified about Torres’s prior Penal
Code section 288(a) sexual offenses against V. and G.
The defense case
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C.C., Jr., the victim’s 15-year-old brother, testified for the defense. He
testified that his and the victim’s older brother, G.C., did not like it when
Torres moved in with them, so G.C. went to live with their father.
C.C., Jr. testified that he and the victim had shared a bedroom in the
Lakeside house for five or six months. During the rest of that year the victim
shared the bedroom with their sister, K.C. C.C., Jr. testified he knew Torres
was a sex offender, but during the time he shared the bedroom with the
victim he never saw or heard Torres enter the bedroom late at night. He
never heard Torres climb into the victim’s bed and molest her, and he never
woke up and saw Torres running from the bedroom.
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C.C., Jr. also testified that he did not share a bedroom with the victim
at the Home Avenue apartment, where they lived next for about a year and a
half. The victim and K.C. shared a bedroom and slept in the same queen-size
bed. While they lived there, C.C., Jr. never heard Torres walking into the
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victim and K.C.’s bedroom late at night.
C.C., Jr. further testified that when he and his family moved to the
Craigie Street address, where they lived for about a year, he shared a
bedroom with the victim and they each slept in one of the bunk beds. The
beds were separated after two months and placed about five feet apart. He
and the victim used a towel to keep the door shut. Opening the door made a
thumping noise. In C.C., Jr.’s opinion, the victim had a reputation for being
dishonest.
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K.C., the victim’s 19-year-old sister, testified that she first met Torres
in around 2007 before she and her family moved to the Lakeside house.
Before they moved there, mother told her that Torres was a registered sex
offender.
K.C. testified that Torres never made any inappropriate comments or
gestures toward her during the time they lived in Lakeside. When she and
the victim shared a bedroom in the Lakeside house for about six months,
they pushed their twin beds together to make more room. The victim always
slept by the wall, so someone would have to climb over K.C. to get next to
the victim. She never woke up in the middle of the night and noticed Torres
climbing over her to get to the victim.
K.C. testified that she shared a bedroom with the victim at the Home
Avenue apartment, and they slept in the same queen-size bed in a corner of
the room. The victim slept against the wall. She never noticed Torres come
into the bedroom in the middle of the night, climb into the bed, and start
rubbing and touching her sister. She never woke and noticed Torres in the
bedroom.
K.C. also testified she had her own bedroom when they moved to the
Craigie Street address. She never heard a thump in the victim and C.C., Jr.’s
room. In her opinion, the victim had a reputation for being dishonest.
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The father of G.C., K.C., C.C., Jr. and the victim also testified for the
defense. In his opinion, the victim had a reputation for being dishonest.
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(Lodgment 9 at 6-21)
III. PROCEDURAL BACKGROUND
On October 19, 2012, the San Diego District Attorney’s Office filed an
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information charging Torres with four counts of lewd acts inflicted upon a child, a
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violation of California Penal Code § 288(a). (Lodgment 3 at 14-17.) The information also
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alleged Torres had suffered six prior serious felony convictions, within the meaning of
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California Penal Code §§ 667(a), 668 and 1192.7, and six prior “strike” convictions,
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within the meaning of California Penal Code §§ 667(b) through (i), 1170.12, and 668.
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(Id.) Following a jury trial, Torres was found guilty of all the charges, and admitted he
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had suffered the prior convictions. (Id. at 58.) Torres was sentenced to a term of 300
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years-to-life plus twenty years. (Id. at 59.)
9
Torres appealed his conviction to the California Court of Appeal. (Lodgment 5-7.)
10
The state appellate court upheld Torres’s convictions for counts two and four, but
11
reversed his convictions for counts one and three due to jury instruction error. (Lodgment
12
9 at 4.) The state appellate court also modified Torres’s sentence to 150 years-to-life plus
13
10 years. (Id.) Torres filed a petition for rehearing in the state appellate court and a
14
petition for review in the California Supreme Court, both of which were denied without
15
citation of authority. (Lodgment 10-13.)
16
Torres next filed a petition for writ of habeas corpus in the California Superior
17
Court, which was denied in an unpublished opinion. (Lodgment 14-15.) Torres then filed
18
a petition for writ of habeas corpus in the California Court of Appeal, which was denied
19
in a written opinion. (Lodgment 16-17.) Although Respondent states Torres filed a
20
petition for writ of habeas corpus in the California Supreme Court, the lodgment
21
Respondent cites for that assertion does not reflect such a petition was filed by Torres.
22
(See Lodgment 18.) 1
23
Torres filed a Petition for Writ of Habeas Corpus in this Court on April 27, 2017,
24
and Respondent filed an Answer, Memorandum of Points and Authorities in Support of
25
26
27
28
1
Lodgment 22 is a copy of a page from the California Courts website which references two cases titled
People v. Torres. The first, SCD243940, is Torres’s case, which ended when Torres’s petition for review
was denied. (See http://appellatecases.courtinfo.ca.gov/search/searchResults.cfm?dist=0&search=party).
The second case is also titled People v. Torres, but originates from Riverside Superior Court and is not
related to the instant case. (Id.)
13
3:17-cv-0865-JLS-PCL
1
the Answer, and Lodgments on November 16, 2017. (Docs. 1, 15, 15-1–15-2.) Torres
2
filed a Traverse on January 2, 2018. (Doc. 17.)
3
IV. STANDARD OF REVIEW
4
This Petition is governed by the provisions of the Antiterrorism and Effective
5
Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997).
6
Under AEDPA, a habeas petition will not be granted with respect to any claim
7
adjudicated on the merits by the state court unless that adjudication: (1) resulted in a
8
decision that was contrary to, or involved an unreasonable application of clearly
9
established federal law; or (2) resulted in a decision that was based on an unreasonable
10
determination of the facts in light of the evidence presented at the state court proceeding.
11
28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002). In deciding a state prisoner’s
12
habeas petition, a federal court is not called upon to decide whether it agrees with the
13
state court’s determination; rather, the court applies an extraordinarily deferential review,
14
inquiring only whether the state court’s decision was objectively unreasonable. See
15
Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th
16
Cir. 2004).
17
A federal habeas court may grant relief under the “contrary to” clause if the state
18
court applied a rule different from the governing law set forth in Supreme Court cases, or
19
if it decided a case differently than the Supreme Court on a set of materially
20
indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant
21
relief under the “unreasonable application” clause if the state court correctly identified
22
the governing legal principle from Supreme Court decisions but unreasonably applied
23
those decisions to the facts of a particular case. Id. Additionally, the “unreasonable
24
application” clause requires that the state court decision be more than incorrect or
25
erroneous; to warrant habeas relief, the state court’s application of clearly established
26
federal law must be “objectively unreasonable.” See Lockyer v. Andrade, 538 U.S. 63, 75
27
(2003). The Court may also grant relief if the state court’s decision was based on an
28
unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2).
14
3:17-cv-0865-JLS-PCL
1
Where there is no reasoned decision from the state’s highest court, the Court
2
“looks through” to the last reasoned state court decision and presumes it provides the
3
basis for the higher court’s denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S.
4
797, 805-06 (1991). If the dispositive state court order does not “furnish a basis for its
5
reasoning,” federal habeas courts must conduct an independent review of the record to
6
determine whether the state court’s decision is contrary to, or an unreasonable application
7
of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th
8
Cir. 2000) (overruled on other grounds by Andrade, 538 U.S. at 75-76); accord Himes v.
9
Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Clearly established federal law, for
10
purposes of § 2254(d), means “the governing principle or principles set forth by the
11
Supreme Court at the time the state court renders its decision.” Andrade, 538 U.S. at 72.
12
V. DISCUSSION
13
In ground one, Torres argues the trial court erred in admitting evidence of his prior
14
sex crime convictions under California Evidence Code §§ 1108 and 352 because these
15
prior convictions were both irrelevant and highly prejudicial. (Doc. 6-10.) Second, Torres
16
contends the trial court gave a misleading answer to a jury question which permitted the
17
jury to convict Torres based on evidence outside the time period specified in the charging
18
document. (Id. at 11-16.) Third, Torres claims his counsel was ineffective in two ways.
19
First, he contends that after counsel was unsuccessful in excluding Torres’s prior
20
convictions, counsel failed to have the prior convictions sanitized or redacted to eliminate
21
the more prejudicial details of the crimes. Second, Torres asserts counsel should have
22
moved for a mistrial after a prospective juror made an allegedly incriminating statement.
23
In the presence of other jurors, this juror stated she was a neuroscientist with expertise in
24
“fear, rage and attraction” and she could not be unbiased because she believed people
25
who committed sexual offenses against children were likely to repeat their behavior. (Id.
26
at 17-24.) And finally, Torres contends the cumulative effect of all these errors rendered
27
his trial unfair. (Id. at 25-26.)
28
//
15
3:17-cv-0865-JLS-PCL
1
A. Admission of Prior Sexual Offenses
2
Torres argues in his first ground that the admission of his prior convictions for
3
lewd acts with a child violated his federal due process right to a fair trial because the
4
convictions were irrelevant and inflammatory. (Doc. 1 at 6-10.) Respondent contends the
5
state court’s resolution of this claim was neither contrary to, nor an unreasonable
6
application of, clearly established Supreme Court law. (Doc. 15-1 at 24-34.) The state
7
appellate court found the past convictions were sufficiently similar to the current
8
convictions so as to warrant admission under California Evidence Code section 1108.
9
(Lodgment 9 at 28.) Additionally, the state appellate court found the prior convictions’
10
probative value was not substantially outweighed by prejudicial impact. (Id. at 29-30.)
11
At trial, the prosecution sought to present testimony from the victims of Torres’s
12
past convictions, V. and G. (Lodgment 1 at 8.) Defense counsel acknowledged the prior
13
convictions were presumed admissible under California Evidence Code § 1108, 2 but
14
argued they should be excluded under § 352 because they were more prejudicial than
15
probative. (Lodgment 1 at 8.) The prosecutor argued the convictions were admissible not
16
only under § 1108, but § 1101 as evidence of motive, intent and opportunity. In addition,
17
they were not barred by § 352 because there were significant similarities between the
18
prior convictions and the current crimes. (Id. at 10-11.) In both cases, the molestations
19
occurred during the early morning hours in the victims’ bedroom while a sibling was
20
sleeping nearby and the sibling did not wake up when the molestations occurred. And in
21
both cases, Torres was alleged to have stroked the victim’s legs while they were sleeping.
22
(Id. at 9-10.) The trial court concluded the evidence was relevant and admissible under §§
23
1108, 1101 and 352. (Id. at 11.)
24
V. testified that Torres began molesting her when she was six years old.
25
(Lodgment 1 at 24-26.) The first time the molestation happened, Torres picked V. up
26
while she was sleeping and carried her to the master bedroom, but on later occasions
27
28
2
All citations within this section are to the California Evidence Code unless otherwise noted.
16
3:17-cv-0865-JLS-PCL
1
Torres would molest V. while she was in the room she shared with G. and G. was
2
sleeping nearby. (Id. at 27-28.) G. never woke up during the molestations. (Id. at 30.) The
3
molestations would occur more than twice a week early in the morning while V.’s mother
4
was at work. (Id. at 26-28.) Torres would rub V.’s legs and thighs and eventually began
5
undressing her and rubbing his genitalia on her genitalia. (Id. at 30.) The molestations
6
stopped when V. began menstruating at age 13. (Id. at 31.) Torres told V. that he would
7
harm her mother if she told anyone about the molestations. (Id. at 30-31.)
8
G. testified Torres began molesting her when she was eight years old. (Lodgment 1
9
at 18.) She and V. shared a room and they slept in bunk beds. (Id.) They would switch off
10
sleeping in the top bunk. (Id.) The first time Torres molested her, G. was sleeping and
11
woke to find Torres touching her genitals. (Id.) Torres later rubbed her legs and breasts.
12
(Id. at 20-21.) V. never woke up during these molestations of G. (Id. at 23.) Torres told
13
G. to be quiet while the molestations were occurring and, as he had also told V., if G. told
14
anyone about the molestations he would hurt the girls’ mother. (Id. at 20-21.) The
15
molestations stopped when G. was 15. (Id. at 24.)
16
When V. was 18, she came home from work one day and found her sister G.
17
crying. (Id. at 32.) When V. asked her what was wrong, G. told her that Torres had been
18
molesting her. (Id.) V. confronted her mother and Torres about the abuse she and G. had
19
suffered, but their mother did not believe them. (Id. at 32-33.) V. took G. away and they
20
stayed at a friend’s house for two weeks until their mother agreed to call the police and
21
report Torres. (Id. at 33.) Torres was later arrested, charged, and convicted. (Id. at 34.)
22
In challenging the more recent convictions, Torres argued in his direct appeals that
23
the evidence of these prior convictions was improperly admitted. (Lodgment 5, 9.) Both
24
of these courts denied the claim, without citing any authority. Torres then raised this
25
claim a final time in a habeas corpus petition filed in the San Diego Superior Court,
26
which is the last reasoned state court decision addressing this claim. That court found the
27
convictions were admissible under § 1101 and § 1108. Similarly, the admission of the
28
convictions did not violate § 352. The habeas court found the convictions highly
17
3:17-cv-0865-JLS-PCL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
probative “for several reasons.” Particularly:
(1) The stepdaughters were around the same age as the victim in the present
case when the molestations started. (2) The stepdaughters had recanted their
stories, just as the victim did at one point in the present case. (3) The manner
and timing of the molestations of the victim and the stepdaughters were very
similar. (4) Petitioner presented evidence at trial that the victim had a
reputation for being dishonest. (5) Petitioner presented evidence and
argument at trial that the circumstances of the victim’s sleeping
arrangements would have made it virtually impossible for Petitioner to
molest the victim without her siblings knowing (the siblings testified that
they were never aware of any molestations).
Each of the above reasons made the evidence of the prior conviction
highly probative because they show the similarities between the offenses and
they counter the arguments Petitioner made at trial. ([People v. Falsetta, Cal.
4th 903,] 911-912 [(1999)].) (1) Tended to prove Petitioner was sexually
attracted to young children and showed similarities among the offenses. (2)
Tended to prove that Petitioner could have threatened her. (3) Tended to
show the similarities between the offenses in both manner and timing (early
in the morning). (4) It was critical to the prosecution’s case to combat
Petitioner’s efforts to discredit the victim by providing evidence that she was
not the only victim, which tended to support her credibility. (Id. at 911.) (5)
It was also critical to the prosecution’s case to combat Petitioner’s efforts to
prove Petitioner could not have committed the molestations without making
her siblings aware to show that the two stepdaughters had a similar sleeping
arrangement, but each of them were not aware that the other was being
molested. (Id.) The trial court had discretion to rule that any prejudicial
effects from admitting the evidence was outweighed by the probative value
of such evidence.
(Lodgment 15 at 3-4.)
A state court’s erroneous evidentiary ruling cannot form the basis for federal
23
habeas relief unless federal constitutional rights are affected. Whelchel v. Washington,
24
232 F.3d 1197, 1211 (9th Cir. 2000) citing Lincoln v. Sunn, 807 F.2d 805, 816 (9th
25
Cir.1987). “While a petitioner for federal habeas relief may not challenge the application
26
of state evidentiary rules, he is entitled to relief if the evidentiary decision created an
27
absence of fundamental fairness that ‘fatally infected the trial.’” Ortiz-Sandoval v.
28
Gomez, 81 F.3d 891, 897 (9th Cir. 1996) quoting Kealohapauole v. Shimoda, 800 F.2d
18
3:17-cv-0865-JLS-PCL
1
1463, 1465 (9th Cir.1986). “[A] trial court’s ruling does not violate due process unless
2
the evidence is ‘of such quality as necessarily prevents a fair trial.’” Windham v. Merkle,
3
163 F.3d 1092, 1103 (9th Cir. 1998) (internal citation omitted). Admission of evidence
4
violates due process “[o]nly if there are no permissible inferences the jury may draw from
5
the evidence.” Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). If a due
6
process error is found, the Court must then determine if it had a “substantial and injurious
7
effect in determining the jury’s verdict.” Brecht, 507 U.S. at 622.
8
As Respondent notes, there is no clearly established Supreme Court law which
9
holds that character or “propensity” evidence is inadmissible or violates due process.
10
Indeed, the Supreme Court expressly reserved deciding that issue in Estelle v. McGuire,
11
502 U.S. 62, 75, n.5 (1991). See Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008);
12
Alberni v. McDaniel, 458 F.3d 860, 864 (9th Cir. 2006). While a writ should clearly issue
13
when constitutional errors “have rendered the trial fundamentally unfair,” the Supreme
14
Court has yet to clearly enunciate a standard by which to determine when, if ever, the
15
admission of “irrelevant or overtly prejudicial evidence” becomes a due process
16
violation, warranting such a writ to be granted. Holley v. Yarborough, 568 F.3d 1091,
17
1101 (9th Cir. 2009) (citing Williams v. Taylor, 529 U.S. 362, 375 (2000), Carey v.
18
Musladin, 549 U.S. 70, 77 (2006)).
19
In fact, Ninth Circuit precedent “squarely forecloses” the claim that admission of
20
propensity evidence violates due process. Mejia, 534 F.3d at 1046; see also, e.g., Greel v.
21
Martel, No. 10-16847, 2012 WL 907215, 472 Fed. Appx. 503, 504 (9th Cir. 2012)3
22
(quoting Mejia and applying it to the admission of evidence of sexual misconduct to
23
show propensity). Thus, because there is no clearly established Supreme Court law
24
holding the admission of propensity evidence violates due process, the state court’s
25
rejection of this claim was neither contrary to, nor an unreasonable application of, clearly
26
27
28
3
Ninth Circuit Rule 36-3 permits the Court to cite unpublished opinions issued after 2007. (9th Cir. R.
36-3).
19
3:17-cv-0865-JLS-PCL
1
2
established Supreme Court law. Musladin, 549 U.S. at 77.
Moreover, there was no error in admitting the evidence under general due process
3
principles. Evidence of Torres’s prior convictions for molesting his former stepdaughters
4
was undeniably relevant to the jury’s decision as to whether he molested his current
5
stepdaughter. The prior convictions helped establish the necessary intent and motive to
6
convict Torres of the crimes. (See Lodgment 3 at 187, 196, 197.) In addition, Torres
7
challenged the credibility of the victim repeatedly. The instruction regarding credibility
8
told the jury one factor they were to consider was “how reasonable is the testimony when
9
you consider all the other evidence in the case?” (Id. at 185.) The jury could have
10
considered the prior convictions to evaluate whether the victim was telling the truth about
11
Torres’s actions. Thus, there were several permissible inferences the jury could have
12
drawn from this evidence. Jammal, 926 F.3d at 920.
13
For the foregoing reasons, the state court’s denial of this claim was neither
14
contrary to, nor an unreasonable application of, clearly established Supreme Court law.
15
28 U.S.C. § 2254(d); Yarborough, 540 U.S. at 4. Nor was it based on an unreasonable
16
determination of the facts. 28 U.S.C. § 2254(d)(2). Torres’s claim to this extent is
17
therefore DENIED.
18
B. Trial Court’s Response to the Jury’s Note
19
In claim two, Torres argues the trial court violated his due process rights by
20
answering a jury note in a manner that permitted the jury to base its verdict on uncharged
21
conduct, thereby lowering the prosecution’s burden of proof. (Doc. 1 at 11-16.)
22
Respondent contends the state court’s denial of the claim was neither contrary to, nor an
23
unreasonable application of, clearly established Supreme Court law. (Doc. 15-1 at 34-39.)
24
To determine whether this claim is meritorious, the counts themselves and time period of
25
the charges are especially important. Torres was charged with four counts of lewd and
26
lascivious acts: (1) the “first time” leg-touching; (2) “last time” leg-touching; (3) “first
27
time” stomach-touching; and (4) “last time” stomach-touching. All of these incidents
28
were allegedly perpetrated against the victim between January 1, 2011 and October 16,
20
3:17-cv-0865-JLS-PCL
1
2012, during which time, the family lived at the Craigie Street residence.
2
During deliberations, the jury sent out a note containing two questions:
3
[Question No. 1:] The charges refer to a ‘first time’ and ‘last time.’ If the
jury were to agree that one instance happened, wouldn’t that also be a ‘first
time’ and ‘last time’?
4
5
6
7
8
9
10
11
12
13
[Question No. 2:] Defendant is charged with offenses [o]ccurring at Craigie
Street, Jan. 1 2011 through Oct. 16, 2012. Does that [m]ean we are not to
consider [e]vents that may or may not have [o]ccurred at the Lakeside and
Home Avenue addresses?
(Lodgment 9 at 45.)
After discussing a response with counsel, the judge answered the jury’s questions:
1. Yes. Counts 2 and 4 refer to [e]vents alleged to have occurred at the
Craigie Street address.
2. You may consider all the [e]vidence that was admitted at trial.
14
15
16
(Id. at 48.)
Torres challenged all four convictions based on the trial court’s answers to
17
these questions. Specifically, Torres argued the answer to question one caused
18
erroneous guilty verdicts on counts one and three, while the answer to question two
19
did the same for counts two and four.
20
On direct appeal, Torres argued the trial court’s response to question one
21
could have led the jury to understand one single leg- or stomach-touching incident
22
could simultaneously stand as both a first and a last time offense. (Lodgment 9 at
23
49.) This understanding could lead to one single lewd and lascivious act being used
24
by the jury to satisfy two counts of lewd and lascivious acts. Additionally, the trial
25
court’s response to question two may have led to the jury considering touching
26
incidents before January 1, 2011 as a “first time” touching. The Attorney General
27
conceded this potential misunderstanding warranted a reversal. The state appellate
28
court ultimately ruled the trial court’s response to question one “lowered the
21
3:17-cv-0865-JLS-PCL
1
prosecution’s burden of proof and violated Torres’s Sixth Amendment right to a
2
jury trial by directing verdicts on two counts.” (Id.) The state appellate court
3
accordingly reversed the guilty verdicts on the “first time” stomach-touching and
4
leg-touching counts – counts one and three. The verdicts on counts two and four,
5
the “last time” touchings, were affirmed because the jury was believed to have
6
found at least one leg-touching and one stomach-touching had occurred between
7
January 1, 2011 and October 16, 2012, which would constitute the “last time”
8
charges.
9
The state appellate court held counts one and three could also be reversed based on
10
the trial court’s answer to question two because the jury could have considered the
11
alleged incidents which occurred before January 11, 2011, to be the “first time”
12
touchings. (Lodgment 9 at 55.) However, because the jury was told during both jury
13
instructions and in the trial court’s answer to question one that counts two and four must
14
have occurred during the specified timeline, the state appellate court did not agree with
15
Torres that these convictions should be reversed. (Id. at 58.)
16
Now, in his Petition currently before this court, Torres argues the state appellate
17
court’s decision was not based on accurate facts. In its answer to question one, the trial
18
court did not state that counts two and four were confined to the January 11, 2011 to
19
October 16, 2013 timeline. Rather, the trial court stated these counts “refer[red] to
20
[e]vents alleged to have occurred at the Craigie Street address.” (Id. at 48.) As Torres
21
points out, the victim’s family moved to the Craigie Street address sometime in 2010,
22
before the January 11, 2011 date. (Lodgment 1 at 201-2, where the victim’s mother
23
testified the family lived at the Home Avenue address for most of 2009 and moved to the
24
Craigie Street address in 2010.) Given this discrepancy in the timeline specified in the
25
complaint and the timeline specified by the trial court in answering question one, Torres
26
argues the jury may have used an incident occurring before January 11, 2011, to convict
27
him of the “last time” touchings. (Doc. 1 at 15-16.)
28
Respondent argues the state appellate court was correct in finding that the
22
3:17-cv-0865-JLS-PCL
1
unanimity instruction the jury received was sufficient additional instruction regarding the
2
January 11, 2011 to October 16, 2013 timeline constraints. (Doc. 15-1 at 37.) While
3
Respondent’s brief’s analysis of the relevant state appellate court decision ends here, the
4
Court finds the second component of the state appellate court’s analysis quite important.
5
The state appellate court went on to note there was testimony at trial that when the victim
6
finally reported the touchings to Officer Kuamoo on October 16, 2013, the victim stated
7
the most recent touching had occurred “one week prior.” (Lodgment 1 at 171.) This last
8
touching clearly would have then occurred well within the timeframe specified by the
9
complaint.
10
A state court’s instructional error “does not alone raise a ground cognizable in a
11
federal habeas corpus proceeding.” Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir.
12
1988); see also Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) (“[T]he fact that the
13
instruction was allegedly incorrect under state law is not a basis for habeas relief. Federal
14
habeas courts therefore do not grant relief, as might a state appellate court, simply
15
because the instruction may have been deficient in comparison to the CALJIC model.”).
16
Thus, to merit relief, a petitioner must show that “the ailing instruction by itself so
17
infected the entire trial that the resulting conviction violates due process.” Estelle, 502
18
U.S. at 71-72. Moreover, petitioner is not entitled to habeas relief unless an error in the
19
instructions had a “substantial and injurious effect or influence in determining the jury’s
20
verdict.” See Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); see also Merolillo v.
21
Yates, 663 F.3d 444, 455 (9th Cir. 2011) (Brecht “substantial and injurious effect”
22
standard governs federal habeas court’s review of a state court’s harmless error
23
determination); Frost v. Van Boening, 692 F.3d 924, 2012 WL 3590853, at *8 (9th Cir.
24
2012) (same).
25
The conflicting instructions regarding the dates of the charged acts are clearly
26
confusing; however, these conflicting instructions must have caused a “substantial and
27
injurious effect.” Brecht, 507 U.S. at 637-38. As the state court noted, there was no
28
prejudice to Torres because overwhelming evidence that Torres had molested the victim
23
3:17-cv-0865-JLS-PCL
1
at least once during the time period specified in the information was presented at trial.
2
(See Lodgment 3 at 8-11.) The victim testified Torres molested her about three times a
3
week beginning in 2010 and ending shortly before she disclosed the molestations in
4
October of 2012. (Lodgment 1 at 75.) Hernandez, the victim’s school counselor, testified
5
the victim told him on October 16, 2012, that Torres had touched her “a couple of days or
6
three days before.” (Id. at 160.) School police officer Kuamoo testified the victim told her
7
on October 16, 2012 that Torres had last touched her “one week ago.” (Id. at 176.) The
8
victim told San Diego Police Officer Dickenson in the October 16, 2012 interview that
9
Torres had touched her the week before and that he had touched her three or four times a
10
week for two years. (Lodgment 3 at 67-70.) She told Fortin, the forensic interviewer, in
11
an October 23, 2012 interview, that Torres had last touched her “two weeks ago.” (Id. at
12
129-30.) This evidence is very likely to have led the jury to conclude at least one instance
13
of touching occurred a short time before the victim reported Torres. Accordingly, there
14
was no “substantial and injurious effect” caused by the conflicting instructions because
15
the jury would still have reached the guilty verdict on counts two and four even had the
16
conflicting instructions not been given. Brecht, 507 U.S. at 637-38. As such, Torres’s
17
claim is DENIED to this extent.
18
C. Ineffective Assistance of Counsel
19
In grounds three and four, Torres contends his trial counsel was ineffective in two
20
ways. First, Torres argues that after the trial court denied defense counsel’s motion to
21
exclude his prior convictions, counsel should have argued for his prior convictions to be
22
sanitized and for the testimony regarding the prior convictions to be restricted. (Doc. 1 at
23
17-19.) Second, Torres contends counsel should have moved for a mistrial after a
24
prospective juror allegedly tainted the jury pool by expressing her opinions about sex
25
offenders’ recidivism rates. (Id. at 20-24.) Respondent counters that the state court’s
26
denial of these claims was neither contrary to, nor an unreasonable application of, clearly
27
established Supreme Court law. (Doc. 15-1 at 39-50.)
28
To establish ineffective assistance of counsel, a petitioner must first show his
24
3:17-cv-0865-JLS-PCL
1
attorney’s representation fell below an objective standard of reasonableness. Strickland v.
2
Washington, 466 U.S. 668, 688 (1984). “This requires showing that counsel made errors
3
so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by
4
the Sixth Amendment.” Id. at 687. He must also show he was prejudiced by counsel’s
5
errors. Id. at 694. Prejudice can be demonstrated by showing “there is a reasonable
6
probability that, but for counsel’s unprofessional errors, the result of the proceeding
7
would have been different. Id.; see also Fretwell v. Lockhart, 506 U.S. 364, 372 (1993).
8
9
Further, Strickland requires “[j]udicial scrutiny of counsel’s performance . . . be
highly deferential.” Strickland, 466 U.S. at 689. There is a “strong presumption that
10
counsel’s conduct falls within a wide range of reasonable professional assistance.” Id. at
11
686-87. The Court need not address both the deficiency prong and the prejudice prong if
12
the defendant fails to make a sufficient showing of either one. Id. at 697. “The standards
13
created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two apply
14
in tandem, review is ‘doubly’ so.” Harrington v. Richter, 562 U.S. 86, 105 (2011)
15
(citations omitted). As the Supreme Court has stated, “[w]hen § 2254(d) applies, the
16
question is not whether counsel’s actions were reasonable. The question is whether there
17
is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.
18
1. Failure to Request that Prior Convictions Be Sanitized
19
Prior to trial, defense counsel sought to exclude evidence of Torres’s prior
20
molestation convictions, particularly the two victims’ testimony. (Lodgment 1 at 8-11.)
21
Defense counsel also sought to exclude Torres’s statement to police following his arrest
22
for his molestation of his former stepdaughters. (Id. at 35-36, 1-9.) The trial judge
23
concluded this evidence was relevant and admissible under California Evidence Code §§
24
1101, 1108 and 352. (Id. at 11.) At trial, the victims from Torres’s prior convictions, V.
25
and G., testified about what Torres did to them. (Id. at 21-34, 15-28.) The detective who
26
interviewed Torres when he was arrested for the crimes leading to his prior convictions,
27
Detective Jim McGhee, also testified about his interaction with Torres. (Lodgment 1 at
28
29-33.) In addition, the trial judge permitted a tape recording of Torres’s interview to be
25
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1
admitted, but agreed to redact a portion of it upon the request of Torres’ counsel. (Id. at
2
31.) In the interview, Torres admitted to molesting V. and G. (Lodgment 3 at 49-65.)
3
Torres argues that after failing to exclude evidence of his prior sexual offenses,
4
counsel should have asked the court to redact or sanitize the convictions, should have
5
objected to various parts of the testimony of the prior victims, and should have moved to
6
redact prejudicial and inflammatory portions of his interview with police. Torres raised
7
this claim in the petition for review he filed in the California Supreme Court where it was
8
denied without explanation. (Lodgment 12.)
9
The state appellate court, which issued the last reasoned decision, found Torres’
10
trial counsel made “reasonable and concerted efforts to exclude the challenged evidence.”
11
(Id.) Particularly, the state appellate court noted trial counsel had renewed his objections
12
to the recorded confession, arguing the tape’s probative value was substantially
13
outweighed by the prejudicial effect because the parties had already stipulated that Torres
14
pled guilty to the charges. While the trial court overruled the objection, trial counsel did
15
successfully have portions of the tape redacted. The state appellate court found trial
16
counsel’s efforts to be reasonable and not ineffective given trial counsel’s partial success
17
in making this objection. This Court agrees.
18
Pertaining to the admission of the actual convictions themselves, even if Torres’s
19
trial counsel did not act reasonably, Torres cannot show prejudice. Under California
20
Evidence Code § 1108, evidence of specific prior sex offenses may be admitted to show
21
the defendant’s propensity to commit the current crime. “The evidence is presumed
22
admissible and is to be excluded only if its prejudicial effect substantially outweighs its
23
probative value in showing the defendant’s disposition to commit the charged sex offense
24
or other relevant matters.” People v. Cordova, 62 Cal. 4th 104, 132 (2015). A trial court
25
must consider the factors described in People v. Falsetta, 21 Cal. 4th 903, 917 (1999), in
26
determining whether to admit the evidence under § 352. These factors include the
27
“nature, relevance, and possible remoteness” of the prior and current acts, and the
28
“similarity to the charged offense.” Falsetta, 21 Cal. 4th at 917.
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The trial court here performed the appropriate review of the evidence and found
2
that the Falsetta factors weighed in favor of admitting Torres’s prior convictions.
3
(Lodgment 1 at 11.) As the state appellate court noted, the prior convictions were relevant
4
and probative of whether Torres was sexually attracted to young girls and the credibility
5
of the victim, which Torres called into question. (Lodgment 9 at 31-32.) In addition, the
6
facts underlying the prior convictions were strikingly similar to the facts in the current
7
case. (Id.) For example, in both cases, the molestations occurred during the early morning
8
hours in the victims’ bedroom while a sibling was sleeping nearby, the sibling did not
9
wake up when the molestations occurred, and Torres was alleged, among other things, to
10
have stroked the victim’s legs while they were sleeping. (Lodgment 1 at 9-10.) There was
11
no risk of confusing or misleading the jury, the certainty of the commission of the prior
12
convictions was high, and the prior crimes were not particularly remote in time.
13
(Lodgment 1 at 32-35.)
14
Torres has not explained what portions of V. and G.’s testimony should have been
15
sanitized upon a motion by trial counsel, nor what portions of his interview with McGhee
16
should have been redacted. Instead, Torres makes only general, conclusory allegations.
17
James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). While Torres could have argued to this
18
Court the prior convictions’ probative value was substantially outweighed by their
19
prejudicial effect, he did not. Similarly, where Torres might have argued had his trial
20
counsel moved to so sanitize the prior convictions, trial counsel would have been
21
effective, Torres did not. Torres did not point to any one action or inaction by his trial
22
counsel which was not up to the reasonableness standard articulated by Strickland. As
23
such, he has not established that “counsel made errors so serious that counsel was not
24
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
25
Strickland, 466 U.S. at 687.
26
Furthermore, even if Torres had shown an instance where trial counsel had acted
27
unreasonably, Torres would still not prevail. Torres has not satisfied the second
28
Strickland prong that he was prejudiced by any error because he has not shown that any
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1
arguments by counsel regarding sanitizing his prior victims’ testimony or further
2
redacting his interview with McGhee would have been successful in altering the outcome
3
of the trial. See Kimmelman v. Morrison, 477 U.S. 365, 373-74 (1986) (holding that
4
“[w]here defense counsel’s failure to litigate a Fourth Amendment claim competently is
5
the principal allegation of ineffectiveness, the defendant must also prove that his Fourth
6
Amendment claim is meritorious”); Daire v. Lattimore, 818 F.3d 454, 465-66 (9th Cir.
7
2016) (stating that, in the context of a failure to file a motion to strike, a petitioner must
8
show the motion would have been successful). Given the strong evidence of guilt
9
provided by the victim’s testimony, the testimony of her friends and school officials to
10
whom she disclosed the molestation, and the testimony of law enforcement officials and
11
the forensic interviewer who interviewed the victim, there is no reasonable probability
12
that “but for counsel’s unprofessional errors, the result of the proceeding would have
13
been different.” Id. Accordingly, Torres is not entitled to relief as to this claim. Williams,
14
529 U.S. at 412-13; Yarborough, 540 U.S. at 4.
15
2. Failure to Move for a Mistrial During Voir Dire
16
In ground four, Torres argues trial counsel was ineffective for failing to move for a
17
mistrial after a prospective juror made prejudicial comments about recidivism. (Doc. 1 at
18
2-24.) During voir dire, a prospective juror, Juror No. 90, told counsel she was a
19
neuroscientist who studied “fear, rage and attraction” and had “special expertise” which
20
would “probably add bias to the jury.” (Lodgment 19 at 141.) Juror No. 90 articulated
21
that she would “add extra weight” to her knowledge of sex offender recidivism rates. (Id.
22
at 142.) Juror No. 90 was excused for cause, but Torres contends counsel should also
23
have made a motion for a mistrial at this point because the entire jury panel was allegedly
24
tainted by the juror’s statements.
25
Torres raised this claim in his petition for review filed in the California Supreme
26
Court. (Lodgment 12.) The state appellate court, however, provided the last reasoned
27
decision on the issue. In furthering his argument to this extent, Torres cited one
28
California case and one Ninth Circuit case; both of which were found easily
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1
distinguishable from Torres’ case. (Lodgment 13 at 41-44.) Additionally, the state
2
appellate court held Torres’ “experienced trial counsel” exercised his professional
3
judgment in finding the jurors able to serve as impartial jurors. (Id.) Without more, the
4
state appellate court would not “second-guess” this “reasonable decision.” (Id.) Torres’
5
claim was therefore denied.
6
Before this Court, Torres again argued that state appellate court decision was not
7
aligned with precedent, specifically Mach v. Stewart, 137 F.3d 630 (9th Cir. 1997).
8
There, as here, during voir dire in a child molestation prosecution, a prospective juror
9
made “expert like statements.” That juror stated based on her employment with Arizona
10
Department of Child Protective Services, she would not discount the veracity of the
11
victim because she had never been involved in a case where the child-victim had
12
fabricated allegations. The Mach court held that “given the nature of [the juror’s]
13
statements, the certainty with which they were delivered, the years of experience that led
14
to them, and the number of times they were repeated,” the court could “presume at least
15
one juror was tainted.” Id. at 633. The state appellate court here found the facts in Mach
16
clearly distinguishable from those facts in Torres’ case. This Court agrees. The jury in
17
Torres’ case did not hear any clear and definitive statements regarding Juror No. 90’s
18
beliefs or opinions, or the alleged supporting evidence. Without this detail, Juror No. 90’s
19
statements were vague and therefore unlikely to have “tainted” any of the prospective
20
jurors, let alone those who participated in deliberations. Id.
21
The Sixth Amendment guarantees “the right to a fair trial by a panel of impartial,
22
‘indifferent’ jurors.” Irwin v. Dowd, 366 U.S. 717, 722 (1961). A fair trial requires that a
23
jury reach a verdict based only on the evidence presented at trial. Turner v. Louisiana,
24
379 U.S. 466, 472 (1965). Torres argues Juror No. 90’s statement about recidivism acted
25
as extrajudicial evidence upon which the jury relied. To have avoided this, Torres argues
26
his trial counsel should have moved for a mistrial. Torres also argues “a reasonable[,]
27
competent attorney acting as a zealous advocate would have moved to quash the venire
28
panel . . . .” (Doc. 1 at 23-24.)
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3:17-cv-0865-JLS-PCL
1
The Supreme Court of California has held the discharge of an entire venire is a
2
“remedy that should be reserved for the most serious occasions of demonstrated bias of
3
prejudice.” People v. Medina, 51 Cal. 3d 870, 889 (1990). Such an occasion arises when
4
the “interrogation and removal of the offending venirepersons would be insufficient
5
protection for the defendant.” Id. There was not such an extreme occasion in Torres’
6
case. Before the juror made the comments in question, the trial judge told the jurors they
7
would be hearing evidence that Torres had been previously convicted of committing a
8
lewd and lascivious act against a child under 14 years of age. (Lodgment 19 at 98.)
9
Several jurors expressed misgivings about their ability to follow the judge’s instructions
10
regarding how to consider Torres’s prior convictions. (Id. at 98-104.) The judge
11
questioned each of them and explained several times that they would be required to
12
follow the instructions given to them and to evaluate the evidence before them fairly and
13
objectively. (Id.) Two jurors were excused for cause following this questioning. (Id. at
14
108.) The next day, defense counsel continued questioning jurors about how Torres’s
15
prior convictions would affect them, emphasizing the need for jurors to listen to the
16
evidence, and hold the prosecution to its burden of proof. (Id. at 118-25.) The prosecutor
17
also questioned jurors about how Torres’s prior convictions would affect their ability to
18
be fair and hold the prosecution to its burden of proving the case beyond a reasonable
19
doubt. (Id. 142-51.) Following this questioning, the jurors who expressed significant
20
misgivings about how Torres’s prior convictions would affect their deliberations were
21
excused for cause, including Juror No. 90. (Id. at 167.).
22
Given that Torres’s prior convictions were going to be admitted at trial, counsel’s
23
decision to use voir dire process to both eliminate biased jurors and educate the
24
remaining potential jurors about how they were required to consider Torres’s prior
25
convictions was a more reasonable and strategic choice than attempting to disqualify the
26
venire. Strickland, 466 U.S. at 697. Moreover, counsel could have reasonably concluded
27
that any motion to dismiss the jury panel would fail given the extremely high standards
28
necessary to warrant such a dismissal. Medina, 51 Cal. 3d at 889. Because Torres has not
30
3:17-cv-0865-JLS-PCL
1
established any such motion would have been successful, Torres has not established he
2
was prejudiced by trial counsel’s declining to so move. See Kimmelman, 477 U.S. at 373-
3
74; Daire, 818 F.3d at 465-66. Because Torres has not set forth facts showing his trial
4
counsel was in fact constitutionally ineffective, Torres’ claim to this extent is DENIED.
5
D. Cumulative Error
6
Finally, Torres argues the cumulative impact of the alleged errors warrant the
7
Court’s granting habeas relief. This Court has found that none of the claims Torres has
8
presented amounted to constitutional error and none beyond those asserted exist. Because
9
no errors occurred, no cumulative error is possible. Hayes v. Ayers, 632 F.3d 500, 523-24
10
(9th Cir. 2011) (stating that “[b]ecause we conclude that no error of constitutional
11
magnitude occurred, no cumulative prejudice is possible”). Therefore, Petitioner is not
12
entitled to relief for his cumulative error claim. Williams, 529 U.S. at 412-13;
13
Yarborough, 540 U.S. at 4.
14
VI. CONCLUSION
15
This Report and Recommendation is submitted to the Honorable Janis L.
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Sammartino, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Local
17
Civil Rule 72.1(c)(1)(c) of the United States District Court for the Southern District of
18
California. For the reasons outlined above, IT IS HEREBY RECOMMENDED that the
19
Court issue an Order: (1) approving and adopting this Report and Recommendation, and
20
(2) directing that Judgment be entered DENYING the Petition for Writ of Habeas
21
Corpus.
22
Any party may file written objections with the Court and serve a copy on all parties
23
on or before July 6, 2018. The document should be captioned “Objections to Report and
24
Recommendation.” Any reply to the Objections shall be served and filed on or before
25
July 20, 2018. The parties are advised that failure to file objections within the specific
26
time may waive the right to appeal the district court’s order. Ylst, 951 F.2d at 1157 (9th
27
Cir. 1991).
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//
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IT IS SO ORDERED.
Dated: June 19, 2018
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