Opinion
CASE NO. CV 12-3573-JLS (PJW)
11-20-2015
LAMONT DAVIS, Petitioner, v. SCOTT FRAUENHEIM, WARDEN, Respondent.
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Final Report and Recommendation is submitted to the Hon. Josephine L. Staton, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. For the reasons discussed below, it is recommended that the Petition be denied and the action be dismissed with prejudice.
This Final Report and Recommendation has been issued to address Petitioner's Objections to the magistrate judge's discussion regarding Ground Five. As Petitioner pointed out, the magistrate judge mistakenly referred to the senior criminalist who testified about the DNA evidence as the supervisor of the criminalist who had originally performed the DNA testing. In fact, the senior criminalist was the "technical reviewer," not the supervisor.
I.
SUMMARY OF PROCEEDINGS
A. State Court Proceedings
In March 2008, a jury in Los Angeles County Superior Court found Petitioner guilty of two counts of forcible rape, burglary, sexual penetration by a foreign object, false imprisonment, and criminal threats. (Clerk's Transcript ("CT") 485-90.) The court determined that he had five previous "strike" convictions under California's Three Strikes law and sentenced him to 180 years to life in prison. (CT 425, 531-32, 568-74.)
Petitioner appealed to the California Court of Appeal, which reversed his criminal threats conviction and reduced his sentence to 120 years to life but otherwise affirmed the convictions. (Lodged Document No. 6.) He then filed a petition for review in the California Supreme Court, which was denied without prejudice pending the court's decisions in several cases involving the constitutionality of admitting the results of forensic tests performed by criminalists who do not testify at trial. (Lodged Document Nos. 7-8.) Petitioner subsequently filed multiple habeas corpus petitions in the Los Angeles County Superior Court, the California Court of Appeal, and the California Supreme Court, all of which were summarily denied. (Lodged Document Nos. 9-12, 17-24.) B. Federal Court Proceedings
Thereafter, Petitioner, proceeding pro se, filed a Petition for Writ of Habeas Corpus in this court, pursuant to 28 U.S.C. § 2254, raising the following claims:
1. The trial court violated his right to confront and cross-examine the victim by excluding evidence of prior false allegations of rape.
2. The prosecution committed outrageous misconduct in violation of Petitioner's due process rights.
3. The trial court erred by allowing testimony about Petitioner's prior charged and uncharged sexual misconduct against others.
4. California Evidence Code § 1108 is unconstitutional in that it permits evidence relating to prior misconduct into evidence.
5. The admission of testimony regarding DNA testing conducted by another criminalist violated Petitioner's Confrontation Clause rights.
6. The admission of unreliable expert testimony violated Petitioner's due process rights.
7. Petitioner received ineffective assistance of counsel.
8. Counsel was ineffective for not objecting to the admission of unqualified opinion testimony.
9. Counsel was ineffective for failing to call witnesses to testify that Petitioner had not committed sexual assaults in other similar instances.
10. Counsel was ineffective for failing to object to improper admission of "fresh complaint" testimony.
11. The trial court erred by not allowing witness Lisa S. to be impeached with conduct underlying multiple misdemeanor convictions involving moral turpitude.(Petition at 6A-6B.)
12. Counsel was ineffective for failing to impeach witness Lisa S.
13. CALCRIM No. 318 lessened the prosecution's burden of proof in violation of Petitioner's constitutional rights.
Petitioner asked to voluntarily dismiss this claim because it was unexhausted. (Docket No. 15.) That request was granted. (Docket No. 16.)
Petitioner did not number two pages between pages 6 and 7 of the Petition. For ease of reference, the Court refers to those pages as 6A and 6B.
II.
STATEMENT OF FACTS
The following statement of facts was taken verbatim from the California Court of Appeal's opinion affirming Petitioner's conviction:
A. Prosecution
1. Charged Crimes
K.V. lived alone in an apartment [. . .] in Arcadia. She was separated from her husband, Eric []. K.V. and [Eric] had two sons over whom they had lost custody; K.V.'s parents had custody of the boys.
[Eric] and [Petitioner] were musicians in a band together. In 2002 or 2003, while K.V. was living alone, [Petitioner] had phoned her a few times, asking to date her and telling her that he could take better care of her than
[Eric] could. She told him she was not interested and asked him not to call her.
On May 17, 2004, [Petitioner] called K.V. and asked to come over to her apartment. She said she did not want him to come to her apartment. He then asked to take her to dinner at Denny's. She said she did not want to meet him anywhere. She told him she had to run errands and was thinking about buying a car. [Petitioner] told her he knew she was looking for a car and could help her. K.V. declined his help and hung up the phone.
[Petitioner] called again 45 minutes later. He told K.V. he was on the way to her apartment. She told him she did not want him to come over. He asked if [Eric] was there; K.V. said he was not.
As K.V. was getting ready to leave the apartment, she saw a hand moving aside the blinds on her front window; she kept the window open part way to allow her cat in and out. She told whoever it was to leave and went to lock her front door. [Petitioner] pushed the door open. K.V. attempted to push it closed, but [Petitioner] pushed it open and came in, pushing K.V. back against a wall. K.V. told [Petitioner] to leave, but he refused.
[Petitioner] grabbed at K.V.'s breasts and told her, "We can do it right here." [Petitioner] dragged K.V. around the apartment by her arm and sometimes by her hair. As K.V. struggled to escape, [Petitioner] tried unsuccessfully to kiss her face, neck and breasts. He tried to put his hand
down her pants and to pull her pants down, but K.V. struggled and prevented him from doing so.
[Petitioner] pushed K.V. down on the bed; when she tried to get up, he pushed her back. He lay on top of her so that she could not move. [Petitioner] took off his pants and pulled down K.V.'s pants and underwear. He then put his penis inside her vagina and had sexual intercourse with her. It was painful and she told him to stop, but he would not. When he was finished, he got up off of her. She again asked him to leave, but he did not. K.V. then tried to leave, but [Petitioner] grabbed her and pulled her back.
[Petitioner] pulled K.V. into the bathroom, where he got a disposable razor. He took K.V. to the kitchen, where he put soap on his face. He then took K.V. back to the bathroom, where he shaved. He cut his face, cursed K.V., and used toilet paper to stop the bleeding.
While in the bathroom, [Petitioner] pushed K.V. against the sink. He pulled down her pants and put his finger, and later his penis, in her vagina. When he was done, he left.
Sometime later, [Petitioner] called K.V. and told her not to call the police. She felt threatened and afraid that [Petitioner] would come back and do something to her if she called the police.
K.V. changed her clothes and went to an appointment. She then went to her parents' house and told her mother what had happened. Her mother called the police. An officer came to the house and spoke to K.V. K.V. then went home and took a shower.
According to Elizabeth V., K.V.'s mother, K.V. called her on May 17 and said that a friend of her husband's had hurt her. She was crying and her voice was shaking. K.V. later came over to her mother's house to talk. She was nervous, scared and jumpy. At first, she would not talk about what happened, and she told her mother she would be hurt if she called the police. Later, she told her mother that a friend came by and forced his way into her apartment. It was not until sometime later that K.V. told her mother that the man raped her twice; once on the bed and once in the bathroom.
On May 18, K.V. showered again. She called the police. Arcadia Police Officer Robert Bartley went to K.V.'s apartment and spoke to her there. K.V. was "[u]pset. Visibly shaking. [She j]ust seemed to be very timid." She cried as she told him what had happened.
K.V. told Officer Bartley that [Petitioner] had called her several times asking to get together. [Petitioner] later came over and entered through her door, which was unlocked. He grabbed her by the back of the head and touched her breasts. K.V. said that [Petitioner] got her on the bed, but she was able to escape briefly and no sexual activity occurred there. She said that [Petitioner] shaved using her razor and cut himself. She tried to escape, but he held her down against the bathroom sink and put his finger and his penis in her vagina.
Officer Bartley took K.V. to the San Gabriel Valley Medical Center. Patsy Sims (Sims), Director of the Sexual
Assault Center, examined K.V. K.V. told Sims that [Petitioner] assaulted her in the bathroom, penetrating her vagina with his finger and his penis. K.V. complained of breast tenderness and genital pain while urinating. During the examination, K.V. was anxious and tearful.
Sims found an abrasion above K.V.'s breast, two abrasions on her vagina and a tear to her hymen. These injuries were consistent with consensual sex as well as forced sex. Sims found no evidence of injury to K.V.'s head or arms.
Officer Bartley contacted [Eric] to get [Petitioner's] address and telephone number. [Eric] refused to give him the information.
The police recovered a razor and a bloody shirt from K.V.'s apartment. DNA found on the items matched [Petitioner's] DNA. The rape kit containing fluids collected from K.V. and her home contained no evidence of semen.
On May 20, K.V. met with her insurance agent, Susie Vonderohe (Vonderohe) regarding a car insurance claim. Vonderohe noticed that K.V. seemed very distraught. K.V. told her "something about the window and how somebody was trying to get in through the window." K.V. said that the person who came into the apartment knew her ex-husband.
2. Prior Crimes
Lisa S. babysat for [Petitioner] and his wife almost 30 years earlier, when she was 15 years old. When she arrived
to watch his 13-month old twins, [Petitioner] told her that his wife was at the store. He began to talk about masturbation. He then locked the door, put on some music and showed Lisa a book about masturbation. After that, he took off Lisa's shirt, took her into the bedroom and tied her to the bed. He took off the rest of Lisa's clothes and put his penis in her vagina. He did this a second time, and then he took her to the shower, where he again assaulted her twice. While she was still naked, he made her feed his twins. Before she left, he told her he would kill her if she told anyone about what he had done.
Lisa's older sister, Elizabeth W., also baby sat for [Petitioner] and his wife. One night after babysitting, [Petitioner] was to drive her home. Instead, he drove to an industrial area. He told Elizabeth that he had "some issues at home" and needed to talk to her. He said that his wife "couldn't have sex" and "he was sexually frustrated." He rubbed her leg and pushed up her dress. She tried to stop him and threatened to scream, but he said no one would hear her. He pulled his pants down and masturbated while touching her vagina, eventually ejaculating on her. After that, she asked to go home, but he told her he would take her when he was ready. He started masturbating again, and Elizabeth tried to get out of the car. He told her that if she got out, he would run her over, and no one would see because it was a secluded area. When he finally took her home, he told her not to tell anyone because no one would believe her.
Both Lisa and Elizabeth eventually reported what [Petitioner] had done to them. Lisa testified in court about the incident with [Petitioner].
Janet G. worked with [Petitioner] at the Crescenta Valley Medical Center about 27 years earlier. One day Janet went to lunch with [Petitioner] and he drove Janet back afterward. He suggested that they smoke a joint and talk for awhile; she agreed. While they were sitting in his car, he began to get physical. When she asked him to stop, he pushed her down and slapped her. He pulled her pants down and put his penis inside her vagina. He then forced her to orally copulate him. When he was done, he drove Janet back and suggested they have lunch again. Janet told her mother and later testified in court about the incident.
In 1990, when Nicole G. was 12 years old, she and another girl went to [Petitioner's] house to play with his children. When [Petitioner] was driving her home, he stopped and took her to the back seat of his car. He kissed her and put his tongue in her mouth. He rubbed her breast. He put his hand down her underwear, rubbed her vagina and put his finger inside. He then drove her home and told her not to tell his children. Before he let her out of the car, he had her kiss his penis. Nicole later reported the incident to school authorities and the police.
B. Defense
Muha Haddad (Haddad) took care of K.V.'s sons at Elizabeth V.'s home for five or six years. She saw K.V. several times a month but tried to avoid her, because K.V.
did not seem to like her and treated her poorly. Haddad did not think K.V. was believable, in that K.V. sometimes made false allegations and changed her story. Haddad thought K.V. was "just angry because [her mother] adopted the children." Haddad never heard K.V. talk to her mother about [Petitioner].(Lodged Document No. 6 at 2-7 (footnote renumbered).)
[Eric] had heard K.V. express jealousy toward his friends, especially his fellow band members, about how much time he spent with them. He did not remember whether she had ever expressed jealously toward [Petitioner]. He had been at K.V.'s apartment with [Petitioner] on two or three prior occasions. When he later spoke to [Petitioner], [Petitioner] denied raping K.V. [Eric] also said that because K.V. was bipolar, it was hard to take her out in public.
When Arcadia Police Detective Sandy Topel was investigating the case, Haddad asked to speak to her. Haddad said that K.V. lied about everything and could not be believed. K.V. had a history of falsely accusing Haddad. K.V. accused her mother and family of doing bad things to her. Haddad said she heard K.V. talk to her mother about the case and her story kept changing. Haddad acknowledged, however, that she did not know if K.V. was lying about this case.
Detective Topel also spoke to [Eric]. [Eric] said that K.V. was making up the accusations because she was jealous of the amount of time he spent with [Petitioner].
Sims testified that women who have given birth could still have hymen tissue that could tear during intercourse.
III.
STANDARD OF REVIEW
The standard of review in this case is set forth in 28 U.S.C. § 2254:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--28 U.S.C. § 2254(d).
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
A state court decision is "contrary to" clearly established federal law if it applies a rule that contradicts Supreme Court case law or if it reaches a conclusion different from the Supreme Court's in a case that involves facts that are materially indistinguishable. Bell v. Cone, 535 U.S. 685, 694 (2002). To establish that the state court unreasonably applied federal law, a petitioner must show that the state court's application of Supreme Court precedent to the facts of his case was not only incorrect but objectively unreasonable. Renico v. Lett, 559 U.S. 766, 773 (2010). Where no decision of the Supreme Court has squarely decided an issue, a state court's adjudication of that issue cannot result in a decision that is contrary to, or an unreasonable application of, clearly established Supreme Court precedent. See Harrington v. Richter, 562 U.S. 86, 101 (2011).
Petitioner raised Grounds One, Three through Five, Twelve, and Thirteen in his petition for review in the California Supreme Court, but that court did not explain its reasons for denying them. (Lodged Document No. 8.) The appellate court, however, did (Lodged Document No. 6), which this Court presumes is the basis for the state supreme court's subsequent decision denying the claims. In this situation, the Court looks to the appellate court's reasoning and will not disturb it unless it concludes that "fairminded jurists" would all agree that the state court's decision was wrong. Richter, 562 U.S. at 102; Johnson v. Williams, 133 S. Ct. 1088, 1094 n.1 (2013) (approving "look through" of state supreme court's silent denial to last reasoned state-court decision).
Petitioner raised the remaining grounds in his state habeas petitions in the California Supreme Court, but that court did not explain its reasons for denying the claims. Nor did the trial court or the appellate court. As a result, the Court will review the record to determine whether there was any reasonable basis for the state court to deny relief. Richter, 562 U.S. at 98; see also Hein v. Sullivan, 601 F.3d 897, 905 (9th Cir. 2010).
IV.
DISCUSSION
A. Exclusion of Evidence
In Ground One, Petitioner claims that the trial court violated his right to confront and cross-examine the victim when it excluded evidence about her history of making false complaints. (Petition, Attached Memorandum at 30-54.) There is no merit to this claim.
It is well established that the Due Process Clause guarantees a criminal defendant a meaningful opportunity to present a complete defense. See Chambers v. Mississippi, 410 U.S. 284, 294 (1973). That right is violated when critical defense evidence is excluded from trial. DePetris v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir. 2001). However, "[t]he accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 U.S. 400, 410 (1988); see also United States v. Scheffer, 523 U.S. 303, 308 (1998) ("A defendant's right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions."); Moses v. Payne, 555 F.3d 742, 757 (9th Cir. 2009) (stating defendant's right to present relevant evidence is subject to reasonable restrictions, "such as evidentiary and procedural rules"). Furthermore, even if exclusion of the evidence amounted to error, habeas relief is not available unless the error had a substantial and injurious effect or influence on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).
Prior to trial, defense counsel argued that he should be allowed to cross-examine K.V. regarding her allegedly false accusations that her father had physically assaulted her when she was 13 years old and that her husband had physically and sexually abused her and their children. Counsel also claimed that K.V. lied about having been raped by one of her husband's bandmates, having been date-raped when she was 16 years old, and having been sexually assaulted by two men five years before trial. The court noted that Petitioner had no witnesses--other than K.V.--to prove that any of the allegations were false and that the fact that no charges were filed based on K.V.'s accusations was not evidence that she had lied. Ultimately, the court precluded defense counsel from cross-examining K.V. about these incidents because the defense could not prove that K.V. had lied and because the cross-examination threatened to distract the jury and consume an undue amount of time. (See Reporter's Transcript ("RT") 907-17, 920, 923, 1257-59, 1501-18, 1521-23, 1528, 1532, 1536-38, 2186-90, 2404-12, 2475-76.)
The California Court of Appeal upheld the trial court's ruling, finding that Petitioner's right to confront K.V. and challenge her credibility was not violated by the exclusion of these allegations:
In the absence of any independent evidence that K.V. made false accusations of sexual assault or other crimes, we conclude the trial court did not abuse its discretion in excluding evidence of those accusations under [California Evidence Code] section 352.[]
Additionally, [Petitioner] was able to cast doubt on K.V.'s credibility; he pointed out the discrepancies in the statements she gave different people about what occurred as well as the discrepancies between these statements and her preliminary hearing and trial testimony. [Petitioner] was
able to establish that K.V. was aware of the need for an examination to preserve DNA evidence yet went home and took a shower before making a police report and going to the hospital for an examination. [Petitioner] presented a witness, Haddad, as to K.V.'s lack of credibility. He also presented a witness, [Eric], as to K.V.'s motive for lying.(Lodged Document No. 6 at 16-17 (internal quotation marks and citations omitted).)
We do not believe that allowing [Petitioner] to cross-examine K.V. about her prior allegations of sexual and other misconduct, which [Petitioner] could not prove were false, might reasonably have produced a significantly different impression of [her] credibility. Accordingly, there was no violation of [Petitioner's] right to confrontation.
[California Evidence Code section 352 provides:
The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.]
The Court agrees that excluding the alleged impeachment evidence did not violate Petitioner's constitutional rights. First, as noted by the state courts, the defense had no way of proving that any of K.V.'s previous assault claims were actually false. (RT 913, 923, 1521-22, 2410-11; Lodged Document No. 6 at 17.) Thus, the unsupported allegations that she had lied in the past had little probative value in undermining her credibility. See Tinsley v. Borg, 895 F.2d 520, 531 (9th Cir. 1990) (holding exclusion of impeachment evidence having "little probative value on the issue of her credibility" did not violate constitutional norms); see also Maravilla v. Rimmer, 2009 WL 1689599, at *15 (C.D. Cal. June 12, 2009) ("Given . . . the absence of evidence that the accusation was false . . . , the trial court's refusal to allow defense counsel to cross-examine [the victim] about the prior rape allegation was well within the 'wide latitude' granted to trial courts to impose reasonable limits on cross-examination.").
Further, most of the alleged assaults occurred years before the trial. And some had never been reported to authorities, investigated, or litigated. Thus, the first time any of the issues would have been explored regarding some of the incidents would have been at Petitioner's trial. This would have necessitated mini trials within the trial, drawing attention away from the case against Petitioner and consuming an undue amount of time. This is a valid reason for not allowing the inquiry. See, e.g., People v. Tidwell, 163 Cal. App.4th 1447, 1458 (2008) (upholding exclusion of prior rape complaints by victim because there was "no conclusive evidence that her prior rape complaints were false" and would, thus, "have resulted in an undue consumption of time").
Finally, to the extent that the trial court erred by excluding the evidence, the error was harmless. The jury heard testimony calling K.V.'s credibility into question. During her opening statement, the prosecutor acknowledged that, "due to [K.V.'s] mental health issues," her sons had been adopted by her mother and were being raised by her parents. (RT 948.) K.V.'s husband testified that she was "bipolar," which made it "hard to take her out in public." (RT 2752.) He also testified that, due to K.V.'s false allegation that he had sexually assaulted their sons, he lost custody of the children. (RT 1305-07.) Thus, there was "sufficient information" for the jury to "appraise the bias and motives of the witness." Skinner v. Cardwell, 564 F.2d 1381, 1389 (9th Cir. 1977); see also Wood v. State of Alaska, 957 F.2d 1544, 1550 (9th Cir. 1992) (stating that there is no Sixth Amendment violation so long as the jury has sufficient information upon which to assess the credibility of a witness).
There was also other evidence of guilt aside from K.V.'s testimony. The jury heard uncontradicted testimony from several other victims that Petitioner had sexually assaulted them, revealing Petitioner's propensity to assault young women. Moreover, the jury heard testimony from Elizabeth V., Officer Bartley, and Vonderohe that K.V. appeared distraught, nervous, and frightened immediately after the attack. Finally, there was blood/medical evidence that supported a finding that K.V. had been sexually assaulted. In sum, the state court's rejection of Petitioner's challenge to the exclusion of impeachment evidence was reasonable. Accordingly, Petitioner is not entitled to federal habeas relief on this claim. B. Prosecutorial Misconduct
In Ground Two, Petitioner claims that the prosecutor committed "outrageous" misconduct in violation of his due process rights. (Petition, Attached Memorandum at 55-99.) There is no merit to this claim.
Petitioner claims that he took and passed a polygraph test and argues that the prosecutor committed misconduct by prosecuting him anyway. (Petition, Attached Memorandum at 55.) Petitioner, however, has not offered any evidence that he took and passed a polygraph test. Further, even if he did, a polygraph test does not establish innocence. See Cortes v. Mills, 2011 WL 6965804, at *5 (D. Or. July 18, 2011) ("Assuming a polygraph has some probative value, it cannot, standing on its own, prove that petitioner is actually innocent."). As such, the prosecutor's decision to prosecute Petitioner despite the test would not amount to misconduct, particularly in light of other substantial evidence establishing Petitioner's guilt. See, e.g., Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir. 1984) (finding no misconduct where the prosecutor argued that the defendant had one intention when an inadmissible polygraph test suggested that he had a different intention).
Petitioner argues that the prosecutor should have known that he was innocent because K.V. had repeatedly lied. (Petition, Attached Memorandum at 55-86.) Again, the Court disagrees. Inconsistent statements by a witness are not enough to establish that a witness's testimony is false. See United States v. Croft, 124 F.3d 1109, 1119 (9th Cir. 1997) ("The fact that a witness may have made an earlier inconsistent statement, or that other witnesses have conflicting recollections of events, does not establish that the testimony offered at trial was false."). Moreover, any alleged inconsistencies in K.V.'s statements fall far short of establishing that the prosecutor committed misconduct by offering her testimony. See United States v. Zuno-Arce, 44 F.3d 1420, 1423 (9th Cir. 1995) (holding conflicting witness statements did not establish that the prosecutor knew that the testimony of any of the witnesses was false and observing that "[l]awyers in criminal cases, for prosecution and defense, sometimes swim in a sea of lies, and must necessarily trust the jury to determine what is true, or whether reasonable doubt remains about what is true").
Petitioner next faults the prosecutor for charging him with making criminal threats for telling K.V. that she should not report the rape to authorities. The jury convicted Petitioner of this charge but the conviction was overturned on appeal based on insufficient evidence. (Petition, Attached Memorandum at 87; Lodged Document No. 6 at 19-21.)
The fact that the appellate court found that there was insufficient evidence does not prove that the Petitioner never made such a threat or that the prosecutor erred in bringing the charges in the first place. In fact, K.V. testified that Petitioner had called her after the attack and told her not to report it to police. (RT 1269-72.) That evidence alone was sufficient to charge Petitioner with making a threat.
In fact, K.V. testified that, after the sexual assault, Petitioner called her and told her not to contact the police. While K.V. did not recall his words, she "felt threatened" and thought he might "come back and do something" if she reported the incident.
Petitioner contends that the prosecutor committed misconduct by introducing other items from K.V.'s apartment, like a towel, running shoes, a comforter, and photographs, which Petitioner complains were not linked to him by DNA or fingerprint evidence. (Petition, Attached Memorandum at 91-92.) There is no requirement that evidence be linked to a defendant by DNA or fingerprints in order to be admissible. Further, the trial court never prohibited the prosecutor from introducing this evidence; therefore, the prosecutor could not have committed misconduct by introducing it. See United States v. Cabrera, 201 F.3d 1243, 1247 (9th Cir. 2000) (finding no misconduct introducing evidence because "the district court never barred any mention of" it). Further, Petitioner has not demonstrated that the admission of this evidence, which was tangential to the case, prejudiced his case.
Finally, Petitioner claims that the prosecutor committed misconduct in closing when she argued: (1) "everything in [K.V.'s] life was basically served up to you on a silver platter"; (2) a defense witness was not believable; and (3) Petitioner threatened to kill K.V. if she called the police. (Petition, Attached Memorandum at 53, 89, 96; see also RT 3036, 3040-41, 3049.) There is no merit to any of these claims.
Prosecutors are given wide latitude in closing argument and may strike hard blows based on the evidence in the case and reasonable inferences drawn from that evidence. See Berger v. United States, 295 U.S. 78, 88 (1935). In doing so, they are free to rebut arguments made by defense counsel and, in doing so, may argue that one witness is more believable than another. United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997); Duckett v. Godinez, 67 F.3d 734, 742 (9th Cir. 1995). With these rules in mind, it is clear that Petitioner has not demonstrated that the prosecutor committed misconduct in the closing argument. Accordingly, the state court's rejection of this claim was reasonable and will not be disturbed. C. Prior Misconduct Evidence
In Grounds Three and Four, Petitioner contends that the admission of evidence of Petitioner's prior sexual offenses pursuant to California Evidence Code §§ 352 and 1108 violated his constitutional rights. For the following reasons, this claim is denied.
Generally speaking, a claim that a state court erred in admitting evidence based on its interpretation of state law is not cognizable in federal habeas corpus proceedings. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). To the extent that Petitioner is challenging the trial court's admission of this evidence under state law, the claim is rejected.
As to Petitioner's claim that the introduction of this evidence violated federal law, that claim, too, is rejected for the reasons explained below.
The trial court allowed the prosecution to introduce evidence concerning four of Petitioner's prior sexual assault offenses: (1) two 1979 convictions for assaults on teenagers Lisa S. and sister, Becky W.; (2) a 1982 conviction for rape and oral copulation by force against 25-year-old Janet G.; and (3) a 1991 conviction for a lewd act with a child and penetration by force against 12-year-old Nicole G. (RT 10-13, 24.) On appeal, the California Court of Appeal held the evidence was properly admitted and that California § 1108 was constitutional. (Lodged Document No. 6 at 17-19.)
California Evidence Code § 1108(a) provides:
In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.
Petitioner argues that the prior offenses should have been excluded because they were improperly admitted to show propensity, were not similar to the charged offense, were so remote in time that they lacked relevance, and likely confused, misled, and inflamed the jury. (Petition, Attached Memorandum at 100-47). These arguments are without merit.
The United States Supreme Court has expressly declined to decide whether the introduction of evidence of prior bad acts to show propensity to commit a crime violates due process. See Estelle, 502 U.S. at 75 n.5 ("[W]e express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of 'prior crimes' evidence to show propensity to commit a charged crime."); Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir. 2008) ("The Supreme Court has expressly reserved the question of whether using evidence of the defendant's past crimes to show that he has a propensity for criminal activity could ever violate due process."). As such, the state court's rejection of Petitioner's argument in this regard could not be contrary to clearly established federal law as determined by the United States Supreme Court. See Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008). Furthermore, "[t]he admission of relevant evidence, by itself, cannot amount to a constitutional violation. Nor does the admission of even highly prejudicial evidence necessarily trespass on a defendant's constitutional rights." United States v. LeMay, 260 F.3d 1018, 1027 (9th Cir. 2001) (concluding that the trial court's admission of sexual propensity evidence did not violate due process or render trial fundamentally unfair). Rather, the introduction of prior misconduct evidence will violate a defendant's due process right to a fundamentally fair trial only if it has no relevance and "its prejudicial effect far outweighs its probative value." Id. at 1026; see also McKinney v. Rees, 993 F.2d 1378, 1384-85 (9th Cir. 1993) (admitting propensity evidence will violate the constitutional right to a fair trial only if no permissible inferences can be drawn from the evidence and its potential for prejudice far outweighs the relevance).
The evidence of Petitioner's prior sexual assaults permitted the jury to draw the reasonable inference that Petitioner was inclined to forcibly, sexually assault women. See Roettgen v. Ryan, 639 F. Supp. 2d 1053, 1064 (C.D. Cal. 2009) ("[U]nder both state law and federal law, the jury could permissibly infer from [the witness's] testimony regarding the prior molestation that petitioner had the propensity to engage in sexual conduct with adolescent males."). Accordingly, the admission of Petitioner's prior sexual assaults did not violate due process or render the trial fundamentally unfair.
Petitioner claims that California Evidence Code § 1108 violates equal protection because it discriminates against defendants charged with sexual offenses. (Petition, Attached Memorandum at 143-46.) Petitioner has failed to show, however, that he is a member of a suspect class or that the challenged provision burdens a fundamental right. See LeMay, 260 F.3d at 1030 ("[A defendant] has no fundamental right to have a trial free from relevant propensity evidence that is not unduly prejudicial."); see also Porter v. McGrath, 268 Fed. Appx. 676, 677 (9th Cir. 2008). For these reasons, this claim is rejected.
Finally, Petitioner argues that California Evidence Code § 1108 violates ex post facto principles. (Petition, Attached Memorandum at 150-77.) The Ninth Circuit has explicitly held that it does not. See Schroeder v. Tilton, 493 F.3d 1083, 1088 (9th Cir. 2007) ("The state court did not err in concluding that § 1108 is an 'ordinary' rule of evidence that does not violate the Ex Post Facto Clause.").
For all these reasons, the admission of Petitioner's prior sexual offenses did not violate his constitutional rights. D. Erroneous Admission of Expert Testimony
In Grounds Five and Six, Petitioner contends that the trial court should not have allowed the forensic examiner to testify that Petitioner's DNA was found in K.V.'s apartment because she had not performed the DNA testing. (Petition, Attached Memorandum at 178-205.) There is no merit to these claims.
The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right to confront and cross-examine witnesses. See Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987). As a result, testimonial statements of a witness who does not appear at trial may not be admitted into evidence unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 68 (2004). To prevail on a Confrontation Clause claim, however, a defendant must also show that the admission of the testimony resulted in prejudice. See Slovik v. Yates, 556 F.3d 747, 755 (9th Cir. 2009); see also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 329 n.14 (2009) (noting Confrontation Clause error subject to harmless error review). The Supreme Court has clarified that forensic documents created for evidentiary purposes are testimonial in nature and subject to Crawford's strictures. See Bullcoming v. New Mexico, 131 S. Ct. 2705, 2714-15 (2011); Melendez-Diaz, 557 U.S. at 311.
At trial, Senior Criminalist Kari Woshida testified that she was the "technical reviewer" of the DNA test performed by Criminalist Glen Lamas on blood evidence collected from the victim's shirt and razor. (RT 2117-19.) Woshida explained to the jury the procedures used to ensure the accuracy of the testing and testified that she reviewed the data collected by Lamas for any errors. (RT 2119-21, 2127-28.) Woshida also testified that Petitioner's DNA, but not the victim's DNA, matched the DNA from the blood stains found on the victim's shirt and razor. (RT 2127-33.) Lamas did not testify at trial.
Petitioner complains that allowing Woshida to testify about the results of DNA tests Lamas performed violated his Confrontation Clause rights. (Petition, Attached Memorandum at 178-97.) The California Court of Appeal rejected this claim, relying on state court precedent, holding that DNA testing results were not testimonial in nature and, therefore, were not subject to the Confrontation Clause. (Lodged Document No. 6 at 21-22.) In particular, the court distinguished Petitioner's case for Melendez-Diaz:
Here, by contrast, Woshida testified as to the DNA testing procedures used and the safeguards, and her technical review of Lamas's work to make sure there were no errors and that his analysis was correct and her review of the results. She explained how the testing worked, the results and the significance of those results. She was available for cross-examination as to her testimony. Thus, unlike the situation in Melendez-Diaz, [Petitioner] had the opportunity for cross-examination to ensure the accuracy of evidence admitted.(Lodged Document No. 6 at 22.)
The Court agrees that this case is markedly different from Melendez-Diaz, where the Supreme Court found that the admission of affidavits containing scientific test analysis, without any testimony by the analysts themselves, violated the Confrontation Clause. Here, Petitioner's counsel was given an unfettered opportunity to cross-examine Woshida, the criminalist who explained the DNA testing protocols and reviewed Petitioner's DNA test results. (See RT 2134-40.)
Petitioner's reliance on the Supreme Court's decision in Bullcoming is unavailing because Bullcoming was decided after the state court denied his Confrontation Clause claim on the merits. See Meras v. Sisto, 676 F.3d 1184, 1187 (9th Cir. 2012) (finding Bullcoming did not constitute clearly established federal law because it was issued after the state court's denial of the claim on the merits). Even were the Court to consider the holding in Bullcoming, however, it would not afford Petitioner a basis for habeas relief. In Bullcoming, the Supreme Court held that the admission of a lab report on a defendant's blood-alcohol test prepared by a non-testifying analyst through the "surrogate testimony" of another analyst who had neither performed nor observed the testing procedure violated the Confrontation Clause. 131 S. Ct. at 2715-16. Petitioner has not demonstrated that that is what happened here. Rather, Woshida testified that she was the "technical reviewer" of Lamas's work and had checked and verified the accuracy of the DNA data. See Bullcoming, 131 S. Ct. at 2722 (Sotomayor, J., concurring in part) (noting Bullcoming did not involve "a case in which the person testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue"); see also Meras, 676 F.3d at 1192 (finding no violation clearly established federal law because the testifying witness, who was the "technical reviewer" of the DNA data, "may have had enough involvement . . . to satisfy the Confrontation Clause") (Bea, J., concurring).
Moreover, Woshida testified that, in her opinion, Petitioner's DNA matched the DNA from the blood found in the victim's room based on Lamas's report. The Supreme Court has repeatedly upheld the use of hearsay testimony by experts to explain their opinion. See, e.g., Williams v. Illinois, 132 S. Ct. 2221, 2228 (2012) ("Under settled evidence law, an expert may express an opinion that is based on facts that the expert assumes, but does not know, to be true" because the Confrontation Clause "has no application to out-of-court statements that are not offered to prove the truth of the matter asserted."). Applying this principle, the Williams Court found no Confrontation Clause violation in an expert's reference to a DNA report from an unavailable technician because the report was prepared during the normal course of business and was not facially incriminating. Id. at 2243-44 (noting DNA report at issue was "very different" from the forensic reports in Melendez-Diaz and Bullcoming because "[t]he technicians who prepare a DNA profile generally have no way of knowing whether it will turn out to be incriminating or exonerating--or both").
In short, there simply is no clearly established Supreme Court law that a criminalist's testimony about DNA findings from a forensic test completed by another criminalist violates the Confrontation Clause where, as here, the testifying witness reviewed the work and was subject to cross-examination. See United States v. Pablo, 696 F.3d 1280, 1293 (10th Cir. 2012) ("[T]he manner in which, and degree to which, an expert may merely rely upon, and reference during her in-court expert testimony, the out-of-court testimonial conclusions in a lab report made by another person not called as a witness is a nuanced legal issue without clearly established bright line parameters . . . ."); Flournoy v. Small, 681 F.3d 1000, 1002, 1005 (9th Cir. 2012) (noting absence of clearly established federal law, even after Bullcoming, addressing the constitutionality of surrogate testimony from a witness who had performed a "technical review" of the scientific test), cert. denied, 133 S. Ct. 880 (2013).
In light of Crawford and its progeny, the state appellate court reasonably concluded at the time of its decision that Woshida's testimony did not run afoul of the Confrontation Clause. Moreover, to the extent that the trial court erred in admitting her testimony, the error was harmless because the DNA evidence did nothing more than establish that Petitioner had been in K.V.'s apartment-a fact he did not directly contest at trial. The DNA evidence in no way proved that Petitioner and K.V. had sex, let alone that he raped her. Thus, it is not reasonably likely that the blood evidence had any impact on the outcome of the trial. See, e.g., Middleton v. Roper, 455 F.3d 838, 857 (8th Cir. 2006) (finding any Confrontation Clause error to be harmless because the testimony "did not directly implicate" the defendant and "addressed a rather minor point in the proceedings").
In his closing argument, defense counsel acknowledged that Petitioner had been to K.V.'s apartment "on various occasions in the past" and that there was no way to know how old the blood was. (RT 3064.)
Next, Petitioner contends that Woshida erred when she testified that there was a one in nine quadrillion chance that the DNA from the blood would match someone at random in the population. (Petition, Attached Memorandum at 198-205; see RT 2133.) He argues that this unreliable testimony allowed the prosecutor to commit the "prosecutor's fallacy" by telling the jury that, "but for that blood stain on the bottom of this shirt, we might not be here." (Petition, Attached Memorandum at 194; RT 3051.)
In McDaniel v. Brown, the Supreme Court explained:
The prosecutor's fallacy is the assumption that the random match probability is the same as the probability that the defendant was not the source of the DNA sample. In other words, if a juror is told the probability a member of the general population would share the same DNA is 1 in 10,000 (random match probability), and he takes that to mean there is only a 1 in 10,000 chance that someone other than the defendant is the source of the DNA found at the crime scene (source probability), then he has succumbed to the prosecutor's fallacy. It is further error to equate source probability with probability of guilt, unless there is no explanation other than guilt for a person to be the
source of crime-scene DNA. This faulty reasoning may result in an erroneous statement that, based on a random match probability of 1 in 10,000, there is a .01% chance the defendant is innocent or a 99.99% chance the defendant is guilty.558 U.S. 120, 128 (2010) (citation omitted).
Woshida did not commit the "prosecutor's fallacy" because she limited her testimony to explaining the probability that a member of the population other than Petitioner had the DNA profile found on the razor and shirt and did not contend that that probability equated to the probability of Petitioner's guilt. (See RT at 2127-34.) Nor did the prosecutor mislead the jury by emphasizing the fact that the blood evidence could be used to confirm K.V.'s account of how the assault had occurred.
In closing, the prosecutor argued, "How else would that shirt have had blood stains on the back of the upper collar had [Petitioner] not pushed that area over the sink and entered from . . . behind[,] [b]rutalizing her with a finger and inserting his penis into her vagina, and he was watching himself in the mirror when he did it." (RT 3051.)
Further, any error was harmless because this was not an instance in which the DNA was used to identify a previously unknown attacker. K.V. knew Petitioner and testified that he was the source of the blood on her shirt and razor. See Brown v. Farwell, 525 F.3d 787, 795 (9th Cir. 2008) (noting prosecutor's fallacy could lead to error where other evidence establishing guilt is weak), reversed sub nom. McDaniel, 558 U.S. 120. And, as explained above, the DNA evidence in no way proved that Petitioner had sex with K.V. or that he sexually assaulted her. It merely bolstered her claim that he was there that night. For these reasons, Petitioner's claim is rejected. E. Ineffective Assistance of Counsel
In Grounds Seven through Ten and Twelve, Petitioner argues that his trial counsel provided ineffective assistance. (Petition, Attached Memorandum at 202-22, 229-32.) For the reasons explained below, the Court finds that there is no merit to these claims.
The Sixth Amendment right to counsel guarantees not only assistance, but effective assistance, of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on a claim of ineffective assistance of counsel, Petitioner must establish two things: (1) counsel's performance fell below an "objective standard of reasonableness" under prevailing professional norms; and (2) the deficient performance prejudiced the defense, i.e., "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 687-88, 694. A claim of ineffective assistance must be rejected upon finding either that counsel's performance was reasonable or that the alleged error was not prejudicial. Id. at 697. The Strickland standard applies equally to claims of ineffective assistance of appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000).
In Ground Seven, Petitioner provides a laundry-list of claims about trial counsel's preparedness, complaining counsel failed to call rebuttal witnesses, failed to negate expert witness testimony, failed to request evidentiary hearings, failed to adequately cross-examine witnesses, etc. He argues that counsel suffered two "serious" bike accidents during the time leading up to the trial, which Petitioner believes "hindered his ability to be effective." (Petition, Attached Memorandum at 204.) As explained below, these allegations are speculative and unconvincing.
Petitioner faults counsel for not calling rebuttal and impeachment witnesses, yet he offers no evidence that these witnesses existed, were available for trial, were willing to testify on his behalf, and would have helped his defense. Absent such proof, he is not entitled to relief. See, e.g., Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (finding mere speculation that witness might have given helpful information if interviewed not enough to establish ineffective assistance); Dows v. Wood, 211 F.3d 480, 486-87 (9th Cir. 2000) (denying ineffective assistance claim for failing to call witnesses when petitioner failed to submit declarations setting out what witness would have said). Similarly, he faults counsel for not objecting to the prosecutor's false and misleading statements as well as to the admission of "baseless" evidence, but fails to explain how the statements he complains of were false or why the evidence was not properly admitted. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) ("Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief."). Finally, he claims that counsel was ill-prepared because of a lack of attention to the case due to injuries suffered from bike accidents. This argument is wholly speculative and without support in the record.
Petitioner claims that his trial counsel failed to challenge nurse Patsy Simm's qualifications to render an opinion as to the nature of K.V.'s injuries that she observed during the sexual assault examination. (Petition, Attached Memorandum at 207-14.) Simms testified that she was a registered nurse and Director of the Sexual Assault Center. (RT 1614-15.) She explained that she had taken courses on sexual assault and forensic examination, had earned an associate's degree, and had been conducting sexual assault examinations during the 11 years preceding the trial. (RT 1615-16.) She had testified on other occasions as an expert regarding sexual assault examinations. (RT 1616, 1806.)
The Court notes that the California Court of Appeal spelled her name "Sims," but at trial she testified that her name was spelled "Simms." (RT 1614.)
At the time of the trial, Simms was working toward a bachelor's degree. Although Petitioner attacks her for exaggerating her education by claiming to have a bachelor's degree, Simms corrected that mistake on direct examination. (See RT 1615, 1806.)
Under California law, Simms was more than qualified to opine on the nature and causes of K.V.'s injuries. See People v. Mayfield, 14 Cal. 4th 668, 766 (1997) ("[A] particular expert is sufficiently qualified if the witness has sufficient skill or experience in the field so that his or her testimony would be likely to assist the jury in the search for the truth."), overruled on other grounds by People v. Scott, 61 Cal. 4th 363, 390 n.2 (2015). Petitioner has not demonstrated what testimony could have "undermined" Simms' qualifications. Further, because Simms opined that K.V.'s injuries could have been from either sexual assault or consensual intercourse, her testimony was not crucial to the outcome of the case. Accordingly, Petitioner has not demonstrated how any failure on counsel's part to impeach her was prejudicial.
Finally, Petitioner's claims that counsel should have presented "rebuttal" expert testimony to counter Simm's testimony. This argument is not based on any evidence and is entirely speculative. For that reason, it is rejected. See Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) ("Speculation about what an expert could have said is not enough to establish prejudice.").
Petitioner faults counsel for not calling women to testify that he could have sexually assaulted them but did not. (Petition, Attached Memorandum at 215.) This argument is specious. Presumably, Petitioner did not sexually assault every girl or woman he had contact with in his lifetime. The fact that some of them would have testified to that fact would have done little or nothing to establish what happened in K.V.'s apartment that day.
Petitioner argues that his counsel should have objected to the testimony of insurance adjustor Susie Vonderohe, Elizabeth V., and K.V.'s mother on the ground that it was inadmissible under California's "fresh complaint" doctrine and did not comport with due process. (Petition, Attached Memorandum at 220-22.)
California's "fresh complaint" doctrine precludes testimony from a witness regarding details of a previously made complaint but allows the witness to testify about "the fact of the making of the complaint and other circumstances material to this limited purpose." People v. Brown, 8 Cal. 4th 746, 763 (1994).
As for Vonderohe's testimony, counsel did object, but the objection was overruled. (RT 1893-95.) As such, the claim relating to her testimony is rejected. Presumably, the court would have ruled similarly regarding Elizabeth V.'s and K.V.'s mother's testimony. Thus, any deficiency by counsel was harmless. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) ("[T]rial counsel cannot have been ineffective for failing to raise a meritless objection.")
In any event, it is clear that the testimony did not run afoul of due process. The admission of evidence violates due process only when "there are no permissible inferences the jury may draw from the evidence." Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). Here, the testimony was relevant to show that K.V. told others about the assault in conformity with her testimony at trial and to explain why she did not immediately call the police after the assault. Thus, Petitioner has failed to demonstrate that counsel was constitutionally ineffective.
Petitioner contends that his trial counsel was ineffective for failing to impeach Lisa S. with her prior felony burglary convictions. (Petition, Attached Memorandum at 229-32.) This claim, too, is rejected.
Prior to trial, the court ordered the prosecution to turn over information about Lisa S.'s two prior felony burglary convictions. (Lodged Document No. 6 at 23.) Defense counsel, however, failed to ask Lisa S. about the convictions during cross-examination and the prosecutor refused to stipulate to the prior convictions after Lisa S. had finished testifying and had been excused. (Lodged Document No. 6 at 24.) Petitioner contends this amounted to ineffective assistance of counsel. The California Court of Appeal disagreed:
Lisa was only one of four witnesses who testified as to prior sexual assaults by [Petitioner]. In light of the testimony of the other three witnesses, it is not reasonably probable that the jury would have completely discredited Lisa and acquitted [Petitioner] had Lisa been impeached with her prior convictions.(Lodged Document No. 6 at 25.)
The Court agrees. Even without Lisa S.'s testimony, Petitioner would have been convicted in this case. The fact that counsel missed an opportunity to raise doubts about her credibility did not have any impact on the outcome of this trial. As such, this claim is rejected, too. F. Jury Instructional Error
Petitioner claims that appellate counsel was ineffective for failing to raise several of these issues on appeal. Because the underlying claims were not meritorious, appellate counsel could not have been ineffective for not raising them. See Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001) ("[A]ppellate counsel's failure to raise issues on direct appeal does not constitute ineffective assistance when appeal would not have provided grounds for reversal."). --------
In Ground Thirteen, Petitioner claims that the trial court lessened the prosecution's burden of proof when it instructed the jury that it should presume that victim's pretrial statements were truthful. (Petition, Attached Memorandum at 233-42.) There is no merit to this argument.
It is well established that jury instructions that relieve the state of the burden of proving beyond a reasonable doubt every element of the charged offense violate a defendant's right to due process. Carella v. California, 491 U.S. 263, 265 (1989). Nevertheless, "not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is whether the ailing instruction . . . so infected the entire trial that the resulting conviction violates due process." Middleton v. McNeil, 541 U.S. 433, 437 (2004) (internal quotation marks omitted). In determining whether there was a due process violation, a reviewing court must consider the faulty instruction in the context of the instructions as a whole. Estelle, 502 U.S. at 72. Even if an instructional error occurred, however, habeas relief is only warranted if a petitioner can establish that the instruction had a substantial and injurious effect or influence in determining the jury's verdict. Calderon v. Coleman, 525 U.S. 141, 145 (1998).
Petitioner contends that the trial court erred when it instructed the jury with CALCRIM 318 as follows:
You have heard evidence of a statement[] that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways:(CT 461.)
1. To evaluate whether the witness's testimony in court is believable;
AND
2. As evidence that the information in those earlier statements is true.
The California Court of Appeal rejected this claim, finding:
CALCRIM No. 318 instructs the jury that it may use the out-of-court statements in assessing the credibility of a witness's in-court testimony, and it may use the statements as evidence of the truth of those statements. No presumption is created.
Additionally, the jury was instructed pursuant to CALCRIM No. 220 that in deciding whether the People proved their case beyond a reasonable doubt, the jury "must impartially compare and consider all the evidence that was received throughout the entire trial." The jury was further instructed pursuant to CALCRIM No. 105 that among the factors the jury could consider in evaluating a witness's credibility was, "Did the witness make a statement in the
past that is consistent or inconsistent with his or her testimony?" We presume that the jurors were "able to correlate, follow, and understand the court's instructions."(Lodged Document No. 6 at 26 (citation omitted).)
Considered in the context of the instructions as a whole, CALCRIM No. 318 did not lower the standard of proof or require jurors to presume that K.V.'s pretrial statements were truthful. Rather, the instructions provided that the jury could use the pretrial statements to decide whether the in-court testimony was believable only if it found that the witness actually made such a statement. See, e.g., Cunningham v. Uribe, 2013 WL 875485, at *11 (N.D. Cal. Mar. 7, 2013) ("CALCRIM No. 318 does not compel the jury to conclude the prior statements are true. Rather, it permits the jury to consider the statements as true only if it first finds the witness did, in fact, make the earlier statements."); Butts v. Cate, 2012 WL 1309184, at *6-7 (N.D. Cal. Apr. 16, 2012) (rejecting claim that CALCRIM No. 318 created a presumption of truthfulness or altered the burden of proof). Accordingly, Petitioner is not entitled to federal habeas relief on this claim.
V.
RECOMMENDATION
For these reasons, IT IS RECOMMENDED that the Court issue an Order (1) accepting this Final Report and Recommendation and (2) directing that Judgment be entered denying the Petition and dismissing the case with prejudice.
DATED: November 20, 2015.
/s/_________
PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE