Vogt v. Fisher

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 KYLE VOGT, Case No. 20-cv-03130-EMC

8 Plaintiff, PUBLIC/REDACTED VERSION

9 v. ORDER DENYING PETITION FOR

WRIT OF HABEAS CORPUS

10 RAYTHEL FISHER,

Docket No. 1

11 Defendant.

12

13

14 A jury in San Mateo County Superior Court convicted petitioner Kyle Vogt of aggravated

15 sexual assault of a minor under age 14, nine counts of lewd or lascivious acts involving substantial

16 sexual conduct with a minor under age 14, exhibiting harmful material to a minor with the intent

17 of seduction, and two counts of committing a lewd or lascivious act with a minor age 14 or 15.

18 See Cal. Pen. Code §§ 269(a), 288(a), 288.2(a), 288(c)(1). The state court sentenced him to 15

19 years to life, plus 24 years in prison.

20 Currently pending before the Court is Mr. Vogt’s petition for a writ of habeas corpus

21 pursuant to 28 U.S.C. § 2254 to seek relief from his state court conviction. According to Mr.

22 Vogt, his constitutional rights were violated, primarily as a result of instructional error, improper

23 admission of evidence, and ineffective assistance of counsel. For the reasons explained below, the

24 Court DENIES Mr. Vogt’s petition.

25 I. BACKGROUND

26 A. Factual Background

27 On April 29, 2014, a jury convicted Mr. Vogt for sexually abusing his girlfriend’s younger

1 No. 30-1 (“Ex. H”) (California Court of Appeal opinion) at 1, 3. He also committed lewd acts on

2 J.A.’s half-sister, Jo.A. and on a family friend’s daughter, A.P. Id. The following is an excerpt

3 from the statement of facts in the California Court of Appeal’s opinion in People v. Vogt, No.

4 A145304 (Cal. Ct. App. Nov. 18, 2018):

5 The Family History

6 Melissa is the oldest of six sisters, and J.A. is the youngest. Keith is

the father of the four middle sisters. In 1999, the girls’ mother died.

7 Melissa, who was eighteen years old at the time, moved to South

San Francisco along with her infant son Antonio, and three-year-old

8 half sister, J.A., to live with their aunt, Luisa.

9 In the summer of 2002, Melissa moved to Davis with Antonio to

study at UC Davis. That fall, Melissa started dating defendant.

10 Around November 2006, Melissa bought a house on Hillside

Boulevard, close to where J.A. was living with Luisa. In June 2009,

11 Keith, along with Melissa’s two other sisters, Jo.A. and K.A., moved

into the Hillside Boulevard home. Defendant moved out of the

12 Hillside Boulevard home for two periods of time when he and

Melissa broke up. The first period was “[m]aybe” in 2009, and the

13 second period was in 2010 and 2011.

14 Defendant frequently bought J.A., Jo.A., and K.A. gifts including

shoes, clothes, and phones. Occasionally, defendant and the girls

15 kept the gifts a secret if they thought Melissa or Luisa would

disapprove.

16

J.A. Reports Defendant’s Abuse

17

When J.A. was in seventh grade, she gave her friend Alanii a letter

18 stating that her sister’s boyfriend had been “messing with” her since

she was eight years old, that she was “getting raped,” and that she

19 would get killed if Alanii told anyone. Alanii gave the letter back to

J.A. and kept the secret.

20

When J.A. was a high school sophomore, she told another friend,

21 Brianna, that defendant had been raping her since she was five years

old. J.A. asked Brianna not to tell anyone, and Brianna complied.

22

In February 2012, when J.A. was 15 years old, she wrote a private

23 message on Facebook to her sisters, Jo.A. and K.A., accusing

defendant of raping her since she was five years old. Jo.A. told her

24 sister A.A. what she had learned, and A.A. alerted Luisa. Luisa told

J.A., who was staying with her sister in Reno at the time, to return

25 home. Upon her return, J.A. gave Luisa a letter disclosing the

abuse. Luisa immediately took J.A. to the police station where they

26 met briefly with Sergeant Kenneth Chetcuti. Chetcuti interviewed

J.A. further and arranged for her to be medically examined.

27

The Investigation

1

Chetcuti arranged for J.A. to make a pretext call to defendant. A

2 recording of the call was played for the jury. During the call, J.A.

confronted defendant about having molested and raped her, but

3 defendant said he could not hear her and that there was a bad

connection, and the phone call was disconnected, even though

4 Chetcuti heard no static or voices cutting in and out. During the

call, defendant denied ever having raped or threatened J.A.

5

Chetcuti interviewed J.A.’s family members and friends and

6 identified Jo.A. and A.P. as two more potential victims.

7 Chetcuti arranged for A.P. make a pretext call to defendant. A

recording of that call was played for the jury. As with J.A.’s pretext

8 call, defendant claimed he could not hear A.P., and the call was

eventually disconnected.

9

Defendant was arrested on March 1, 2012, at Melissa’s Hillside

10 Boulevard home. Officers took a cell phone from defendant’s

pocket that had the same phone number used for the pretext calls.

11 They also seized a backpack containing electronic storage devices,

and computers, including a black and gray Dell desktop computer

12 stored in the garage.

13 At Chetcuti’s request, criminalist Terence Wong searched the Dell

computer for defendant’s name and email address, child

14 pornography, and any communications between defendant and J.A.

15 J.A.’s Allegations of Abuse in Davis (Counts 1-4)

16 Several witnesses testified that J.A. visited Melissa in Davis at least

once a month during the school year and several times during the

17 summer. During these visits, defendant watched J.A. and Antonio

when Melissa had to go to work or class.

18

J.A. testified that defendant first had sex with her in Davis in the

19 summer when she was five years old. Defendant, who was wearing

only a shirt, played adult pornography videos and told J.A. to do

20 what the people were doing in the videos. He removed J.A.’s

clothes and put a blanket over her face. J.A. felt defendant pull her

21 legs apart and press between her legs with his penis. His penis went

inside J.A.’s vagina, causing her pain. J.A. complained, but

22 defendant told her it would not hurt. This continued for an hour,

until Melissa came home. Defendant then told J.A. to take a shower

23 and threatened to kill her if she said anything. J.A. went into the

bathroom and saw blood dripping down her legs and onto the floor.

24 She took a shower and wiped the blood off the floor so Melissa

would not see it.

25

J.A. testified that defendant had sexual intercourse with her about

26 nine more times during her visits to Davis. Each time, she and

defendant were in Melissa’s bedroom, and defendant played

27 pornography, put his penis in J.A.’s vagina, told her to take a

J.A. did not want anybody to know what was happening because she

1 was scared she would get hurt. Melissa never noticed anything

unusual. Luisa observed only that J.A. became more quiet around

2 this age.

3 J.A.’s Allegations of Abuse at Antoinette Lane (Counts 6-7)

4 J.A. continued to visit Melissa, Antonio and Kyle after they moved

to Antoinette Lane in South San Francisco. J.A. testified that

5 defendant had sexual intercourse with her about 20 times at the

Antoinette Lane apartment. Each time, defendant played

6 pornography videos, put blankets or pillows over J.A.’s face, and

ejaculated onto a towel. Defendant continued to tell J.A. he would

7 kill her if she told anyone.

8 J.A.’s Allegations of Abuse at the Hillside Boulevard Home

(Counts 8-11)

9

J.A. regularly visited Melissa’s home on Hillside Boulevard. J.A.

10 testified that, as in the past, defendant would watch pornography,

put something over her face, have intercourse with her, and ejaculate

11 on a towel. J.A. testified that defendant played the pornography on

a gray Dell desktop computer. These assaults occurred about 10

12 times, usually in the back room or Melissa’s bedroom, but also in

Antonio’s room and the garage. Defendant also began engaging in

13 oral sex with J.A. before and after intercourse. Defendant made J.A.

orally copulate him on about six occasions. Defendant orally

14 copulated J.A. about 10 times.

15 The sexual abuse did not cause J.A. physical problems, and no one

noticed anything. J.A. continued acting normally because she feared

16 defendant would kill her or Melissa would get hurt if anyone found

out. However, she tried to avoid spending the night or being alone

17 with defendant. Defendant stopped having intercourse and oral sex

with J.A. when she was 13 years old, around the time Keith, Jo.A.,

18 and K.A. moved into the Hillside Boulevard house. However,

defendant later offered J.A. money if she would send him nude

19 photographs of herself, but she declined.

20 A.P.’s Allegations of Lewd Conduct (Counts 12-13)

21 A.P. and her family lived next door to J.A., and the parents became

good friends with defendant and Melissa. A.P. testified that when

22 she was 12 or 13 years old, she began to feel like she was

defendant’s girlfriend. They called and sent text messages to each

23 other, sometimes using coded messages. Defendant told A.P. to

delete their messages because he could get in trouble if anyone saw

24 them. A.P.’s parents once found some of their texts and confronted

defendant, but A.P. and defendant continued communicating until

25 A.P.’s senior year of high school.

26 When A.P. was 12 or 13 years old, she was with defendant in the

back room of Melissa’s house when defendant showed her a picture

27 of an erect penis on his phone. He said it was his penis and

touching.

1

When A.P. was 14 years old, she slept over at Melissa’s house

2 several times. One night, defendant woke A.P. and they went to the

back room, where he kissed her and put his hand on her back under

3 her shirt. A.P. testified about interactions she had with defendant

other than the acts that were charged. When A.P. was 14, she was

4 on a video chat with defendant. He said she had a nice body and

asked to see more of it, so A.P. took off her shirt. Defendant said

5 A.P. should take off the rest, and she took off her bra.

6 A.P. further testified that when she was 15, she and defendant made

out in A.P.’s father’s shop and defendant wrote their combined

7 initials “KAVP” on a wall. When A.P. was 16, she and defendant

“made out” at A.P.’s house by “dry humping” with their clothes on.

8 Also, defendant asked A.P. to send him a nude photo of herself,

though she did not do so.

9

During the 2012 investigation, officers found on the micro SD card

10 in defendant’s phone pictures of a penis, which Melissa identified as

defendant’s. Officers also photographed the “KAVP” graffiti on the

11 wall in A.P.’s father’s shop.

12 Jo.A.’s Allegations of Lewd Conduct (Count 14)

13 Jo.A. testified that when she was living in Melissa’s house, she and

defendant once had a fight. When defendant apologized, he put his

14 hand on her knee, said she was like a sister to him, and gave her a

kiss or “peck” on the neck. Jo.A. testified that it felt “weird” and

15 “inappropriate” but did not feel it was sexual. Jo.A. was 15 years

old at the time.

16

Jo.A. and K.A. both described other interactions with defendant that

17 made them uncomfortable. Once, Jo.A. was talking with defendant

about a scar she had on her chest. Jo.A. was wearing a low-cut shirt,

18 and while they were talking, defendant put his finger in her shirt,

pulled on her shirt and the cup portion of her bra to expose her

19 breast, and looked and laughed. Jo.A. testified that this made her

feel uncomfortable, and she walked out of the room. Jo.A. told K.A.

20 about this incident. On another occasion, Jo.A. was bending over,

and defendant stuck his finger inside her pants and joked that “crack

21 kills.” Defendant would tell the girls they were beautiful, and rub

their feet or touch their hair. K.A. testified that when she was 13

22 years old, defendant asked if she was a virgin, and he suggested to

K.A. that they could have a “quickie.” Defendant teasingly said that

23 Jo.A. should strip for him to pay him back for buying things for her,

and that he would throw money at K.A. if she took her clothes off.

24 Jo.A. and K.A. also were upset and complained to Melissa and Keith

that defendant made everyone keep their bedroom doors open and

25 would walk into their room without knocking when they were not

fully dressed. In addition, J.A. and K.A. thought defendant had

26 taken photos of them in the shower.

27 On the micro SD card in defendant’s phone, officers found deleted

and pajama pants. Officers also found on defendant’s phone deleted

1 pictures of K.A. and unidentified females, nude and partly clothed,

which appeared to have been taken through the window of Melissa’s

2 bathroom. On the Dell computer, officers found traces of deleted

selfies that Jo.A. had taken in her underwear or nude. Jo.A. testified

3 that the selfies had been on the memory card in her pink camera that

went missing, and that she had never downloaded the selfies to the

4 computer or shared them with defendant.

5 The Child Pornography Videos

6 In examining the Dell computer retrieved from Melissa’s Hillside

Boulevard home, Wong found seven videos that he suspected of

7 being child pornography based on file names such as “pedophilia”

and “PTHC” (pre-teen hard core). Four of the videos were saved to

8 the computer on April 1, 2009, one was saved on June 9, 2009, and

two others were saved on August 1, 2009. Melissa, Jo.A. and Keith

9 testified that defendant was living at the Hillside Boulevard house

around that time. Chetcuti viewed the videos and found they

10 contained child pornography. He described the contents of the

videos and showed the jury 18 still photographs excerpted from the

11 videos.

12 The first video was entitled “Hot mother licks her 8-year old

daughters sweet pussy as her brother fucks her.” Chetcuti testified

13 that in the video, a woman and a girl who appeared to be around 8

years old performed sexual acts on a boy, about age 10.

14

The second video was titled “blond 10-year old girl and boy play

15 sex.” Chetcuti testified that it depicted “a boy and a girl having

sexual intercourse” in “many positions” with an adult nearby.

16

The third video, four minutes long, was “Two girls, maybe 12 years

17 old, pedophile’s dream.” Chetcuti testified that it depicted two girls

fondling an elderly man’s penis and performing oral copulation on

18 him before the man performs oral sex and sexual intercourse with

one of the girls.

19

The fourth video was called “12-year old boy fucks 12-years old girl

20 kiddie pedo by Lolita.” Chetcuti testified that it depicted intercourse

between a boy and girl appearing to be 12 years old.

21

The fifth video was titled “Two, 13-year old girls get cum in face.”

22 Chetcuti testified that the video showed two girls, appearing to be

about 13 years old, performing oral sex on a man and kissing each

23 other, then the male masturbating and ejaculating on a girl’s face

and chest.

24

The sixth video was “Vicky compilation 10-year old gets what she

25 wants. Nude naked pedo XXX hardcore.” Chetcuti testified that the

video depicted a girl about 10 years old wearing a mask and

26 performing sex acts with an adult male.

27 The seventh video was just under 7 minutes long and called “Incesto

developed.

1

Defendant’s Character Witnesses

2

The defense presented two character witnesses, Mylyka Sanderford

3 and Grace Barajas. Both testified they knew defendant, had never

seen him engage in inappropriate behavior around young girls, and

4 had no concerns with him interacting with their daughters.

Sanderford, who lived in Woodland, testified that she dated

5 defendant for six months in the spring or summer of 2009 and, to

her knowledge, defendant was living “out in the Bay Area” at the

6 time and would come to visit her in Woodland.

7 Ex. H at 2–9.

8 B. Procedural Background

9 After the jury convicted Mr. Vogt for all the crimes with which he had been charged, new

10 defense counsel filed a motion for a new trial.1 On April 15, 2015, the trial court denied the

11 motion. See Docket No. 29-19. On May 29, 2015, the trial court sentenced Mr. Vogt to a total

12 prison term of 15 years to life plus 24 years. Id. at 1708–14. Mr. Vogt appealed his convictions,

13 but the California First District Court of Appeal affirmed on November 6, 2018. See Ex. H. Mr.

14 Vogt then petitioned the California Supreme Court for review, but review was denied on February

15 13, 2019. See Docket No. 30-2, Ex. J. On February 25, 2020, Mr. Vogt filed a petition for writ of

16 habeas corpus in the California Supreme Court for the purpose of exhaustion of state remedies for

17 federal constitutional error. See Docket No. 30-3, Ex. K. The state petition remained pending at

18 the time of filing of this federal habeas corpus petition, in May 2020. The California Supreme

19 Court denied Mr. Vogt’s petition for writ of habeas corpus on April 21, 2021. See Docket No.

20 30-3, Ex. L.

21 On May 6, 2020, Mr. Vogt filed his habeas petition with this Court. Docket No. 1 (“Pet.”).

22 On November 22, 2021, Raythel Fisher (“Respondent”), the warden at Valley State Prison, where

23 Mr. Vogt is in custody filed his answer to the order to show cause. Docket No. 28 (“Answer”).

24 On January 6, 2022, Mr. Vogt filed his traverse to the answer. Docket No. 35 (“Traverse”).

25

26

1 Mr. Vogt’s trial counsel was Steven Whitworth. His counsel for motions for a new trial was

27

Matthew A. Sullivan. His counsel for his direct appeal before the California Court of Appeal and

1 II. JURISDICTION AND VENUE

2 This Court has subject matter jurisdiction over this action for a writ of habeas corpus under

3 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the petition

4 concerns the conviction and sentence of a person convicted in San Mateo County, California,

5 which is within this judicial district. 28 U.S.C. §§ 84, 2241(d).

6 III. STANDARD OF REVIEW

7 Mr. Vogt’s petition is governed by the Antiterrorism and Effective Death Penalty Act of

8 1996 (“AEDPA”). Under AEDPA, “a habeas court must determine what arguments or theories

9 supported or, as here, could have supported, the state court’s decision; and then it must ask

10 whether it is possible fairminded jurists could disagree that those arguments or theories are

11 inconsistent with the holding in a prior decision” of the U.S. Supreme Court. Harrington v.

12 Richter, 562 U.S. 86, 102 (2011). Specifically, habeas relief may be granted if the state court

13 proceedings “resulted in a decision that was contrary to, or involved an unreasonable application

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

15 resulted in a decision that was “based on an unreasonable determination of the facts in light of the

16 evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).

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

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

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

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

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

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

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

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

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

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

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

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

2 court. Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991). “Where there has been one reasoned

3 state judgment rejecting a federal claim, later unexplained orders upholding that judgment or

4 rejecting the same claim rest upon the same ground.” Id. at 803.

5 IV. DISCUSSION

6 A. CALCRIM Nos. 375 and 1191 Jury Instructions

7 Mr. Vogt asserts a violation of his due process rights because two jury instructions

8 provided that uncharged acts used to show sexual intent and criminal propensity only needed to be

9 proven by a preponderance of the evidence. Pet. at 17–27. He argues that the preponderance of

10 evidence instruction impermissibly lessened the prosecution’s burden to prove the charged

11 offenses beyond a reasonable doubt. Id. at 17.

12 1. Background

13 During trial, the prosecution introduced evidence of “other crimes,” such as videos and still

14 photographs of child pornography, to show that Mr. Vogt had the intent and propensity to commit

15 the alleged crimes. The trial court gave the following CALCRIM Nos. 375 and 1191 instructions.

16 CALCRIM No. 375, California’s standard jury instruction regarding the use of evidence of an

17 uncharged offense admitted to prove identity, intent, common plan, etc., is as follows:

18 The People presented evidence of other behavior by the defendant

that was not charged in this case.

19

You may consider this evidence only if the People have proved by a

20 preponderance of the evidence that the defendant in fact committed

the uncharged acts. Proof by a preponderance of the evidence is a

21 different burden of proof than proof beyond a reasonable doubt. A

fact is proved by a preponderance of the evidence if you conclude

22 that it is more likely than not that the fact is true.

23 If the People have not met this burden, you must disregard this

evidence entirely.

24

If you decide that the defendant committed the uncharged acts, you

25 may, but are not required to, consider that evidence for the limited

purpose of deciding whether or not:

26

The defendant acted with the intent to arouse, appeal to, or gratify

27 the lust, passions or sexual desires of himself or the child in Counts

In evaluating this evidence, consider the similarity or lack of

1 similarity between the uncharged acts and the charged offenses.

2 Do not consider this evidence for any other purpose except for the

limited purpose set forth in CALCRIM No. 1191.

3

Do not conclude from this evidence that the defendant has a bad

4 character or is disposed to commit crime.

5 If you conclude that the defendant committed the uncharged acts

that conclusion is only one factor to consider along with all the other

6 evidence. It is not sufficient by itself to prove that the defendant is

guilty of the crimes charged in this case or that the allegations

7 charged in this case have been proved. The People must still prove

each charge and allegation beyond a reasonable doubt.

8

9 CALCRIM No. 375. CALCRIM No. 1191, California’s standard jury instruction regarding the

10 use of evidence of an uncharged sex offense is as follows:

11 The People presented evidence that the defendant committed the

crimes of possession of child pornography and annoying or

12 molesting a child that were not charged in this case. These crimes

are defined for you in these instructions.

13

You may consider this evidence only if the People have proved by a

14 preponderance of the evidence that the defendant in fact committed

the uncharged offenses. Proof by a preponderance of the evidence is

15 a different burden of proof from proof beyond a reasonable doubt.

A fact is proved by a preponderance of the evidence if you conclude

16 that it is more likely than not that the fact is true.

17 If the People have not met this burden of proof, you must disregard

this evidence entirely.

18

If you decide that the defendant committed the uncharged offenses,

19 you may, but are not required to, conclude from that evidence that

the defendant was disposed or inclined to commit sexual offenses,

20 and based on that decision, also conclude that the defendant was

likely to commit the offenses charged in this case. If you conclude

21 that the defendant committed the uncharged offenses, that

conclusion is only one factor to consider along with all the other

22 evidence. It is not sufficient by itself to prove that the defendant is

guilty of the offenses charged in this case. The People must still

23 prove each charge and allegation beyond a reasonable doubt.

24 Do not consider this evidence for any other purpose except for the

limited purpose set forth in CALCRIM 375.

25

26 CALCRIM No. 1191.

27 These instructions state that the “other crimes” evidence is not sufficient by itself to prove

1 process rights because the “other crimes” evidence “nevertheless figures into the jury’s

2 willingness to convict, and therefore must be subject to the constitutional requirement of proof

3 beyond a reasonable doubt.” Pet. at 20. In Mr. Vogt’s view, the “other crimes” evidence

4 “crucially served to corroborate the victim’s version of events, particularly in regard to the

5 victim’s description of pornographic videos.” Id. at 21. “It also served as evidence that the

6 defendant (having possessed child pornography) was disposed to commit lewd and lascivious

7 conduct.” Id. He argues that the “other crimes evidence” was part of the “direct chain of proof”

8 of guilt, and therefore, had to be proved beyond a reasonable doubt. See Docket No. 30, Ex. E

9 (Vogt opening brief on direct appeal) at 84–98.

10 The California Court of Appeal rejected Mr. Vogt’s instructional error claim. The state

11 appellate court applied the California Supreme Court’s decision in People v. Reliford, 29 Cal. 4th

12 1007 (2003) in upholding CALCRIM Nos. 375 and 1191. Ex. H at 15–18. In Reliford, the

13 instruction at issue was a prior version of CALCRIM No. 1191. Reliford, 29 Cal. 4th at 1011–12.

14 The instruction provides in part,

15 “If you find that the defendant committed a prior sexual offense in

1991 involving [the alleged victim], you may, but are not required

16 to, infer that the defendant had a disposition to commit the same or

similar type sexual offenses. If you find that the defendant had this

17 disposition, you may, but are not required to, infer that he was likely

to commit and did commit the crime of which he is accused.

18

However, if you find by a preponderance of the evidence that the

19 defendant committed a prior sexual offense in 1991 involving [the

alleged victim], that is not sufficient by itself to prove beyond a

20 reasonable doubt that he committed the charged crime. The weight

and significance of the evidence, if any, are for you to decide.

21

You must not consider this evidence for any other purpose.”

22

23 Id. at 1012. The California Supreme Court acknowledged that some California courts of appeal

24 “have feared that a jury might interpret the instruction to permit conviction of the charged

25 offenses under the preponderance-of-the-evidence standard.” Id. at 1015 (emphasis in original).

26 But the court held that it did “not find it reasonably likely a jury could interpret the instructions to

27 authorize conviction of the charged offenses based on a lowered standard of proof” because

1 standard for anything other than the preliminary determination whether defendant committed a

2 prior sexual offense in 1991 involving [the alleged victim].” Id. at 1016. Instead, the instructions

3 properly “explained that, in all other respects, the People had the burden of proving defendant

4 guilty ‘beyond a reasonable doubt.’” Id.

5 The California Supreme Court also concluded the instruction was not “too complicated for

6 jurors to apply” because this was “not the first time jurors have been asked to apply a different

7 standard of proof to a predicate fact or finding in a criminal trial.” Id. (citing various statutes

8 related to entrapment, co-conspirator statements, and lawful possession of controlled substances).

9 The court presumed that the jurors could “grasp their duty—as stated in the instructions—to apply

10 the preponderance-of-the-evidence standard to the preliminary fact identified in the instruction and

11 to apply the reasonable-doubt standard for all other determinations.” Id. The court also

12 recognized that the instruction could be improved by adding another cautionary statement, which

13 is similar to the language in the instructions here: “If you determine an inference properly can be

14 drawn from this evidence, this inference is simply one item for you to consider, along with all

15 other evidence, in determining whether the defendant has been proved guilty beyond a reasonable

16 doubt of the charged crime.” Id.

17 On direct appeal, Mr. Vogt asserted that Reliford was distinguishable from his case based

18 on People v. Tewksbury, 16 Cal.3d 953 (1976). Ex. H at 16. In Tewksbury, the defendant had

19 been convicted of two counts of robbery and the murder of one of the victims based on the

20 testimony of his girlfriend, who was an accomplice, and of another woman who had been charged

21 for the same crimes and then had been granted immunity. Tewksbury, 16 Cal.3d at 958. The jury

22 had been instructed to answer whether the other woman was also an accomplice based on a

23 preponderance of evidence. Id. at 962–63. The California Supreme Court held that the question

24 of whether the other woman was an accomplice “is collateral to the question of the accused’s guilt

25 or innocence,” meaning the proof of such a fact “is not one which must be established in the direct

26 chain of proof of the accused’s guilt.” Id. at 965. Thus, the court concluded that the collateral fact

27 can be proved by a preponderance of the evidence. Id. In this case, Mr. Vogt relied on

1 and therefore the correct standard should have been proof beyond a reasonable doubt. Ex. H at 16.

2 However, the state appellate court rejected this argument by relying on another California

3 Court of Appeal decision in People v. Anderson, 208 Cal.App.4th 851 (2012), where the court had

4 rejected a similar argument. In Anderson, the defendant had been convicted for continuous sexual

5 abuse of a child under the age of 14 years and three counts of lewd act with a child under the age

6 of 14 years. Anderson, 208 Cal.App.4th at 856. Like Mr. Vogt, the defendant contended that “the

7 preponderance standard applied to the uncharged offenses impermissibly reduced the People’s

8 burden of proof on the charged offenses.” Anderson, 208 Cal.App.4th at 894. One of the

9 uncharged offenses was an incident during which the defendant had fondled the victim’s genital

10 area while she swung on a punching bag. Id. at 894. The defendant relied on Tewksbury and

11 claimed that “because this incident was the first act of abuse, it was part of ‘the direct chain of

12 proof’ of his guilt and therefore had to be proved beyond a reasonable doubt.” Id. The court

13 rejected this argument, holding that “a defendant’s propensity to commit a particular type of

14 crime, here lewd act, is the type of collateral fact addressed in Tewksbury” and the “fact one of the

15 uncharged offenses marked the start of Anderson’s continuous course of conduct is insufficient to

16 alter this result.” Id. at 897.

17 Likewise, in this case, the state appellate court concluded that “the uncharged offense of

18 possessing child pornography does not directly bear on any link in the chain of proof of any

19 element of the charged offenses of rape, lewd or lascivious conduct, or exhibiting harmful

20 materials (a picture of defendant’s erect penis, not child pornography) to a minor.” Ex. H at 17.

21 The court held that “[w]hile the child pornography evidence was also offered to establish the

22 essential element of defendant’s sexual intent in committing the charged offenses under sections

23 288, subdivision (a), and 288.2, this did not make the uncharged offense a link in the direct chain

24 of proof of the sexual intent element.” Id. “Rather, ‘facts regarding another offense are simply

25 evidentiary facts to be considered along with other evidence in the case on the question of . .

26 . intent; although the jury may entertain some reasonable doubt as to the proof of the other offense

27 or of particular items of evidence, it is sufficient if they are convinced beyond a reasonable doubt

1 (1974)). The state appellate court summarily rejected Mr. Vogt’s instructional error claim. Ex. H

2 at 17–18.

3 2. Analysis

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

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

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

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

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

9 isolation, but must be viewed in the context of the overall charge.” Id. (internal quotation marks

10 omitted). “Even if there is some ‘ambiguity, inconsistency, or deficiency’ in the instruction, such

11 an error does not necessarily constitute a due process violation.” Waddington v. Sarausad, 555

12 U.S. 179, 190 (2009) (quoting Middleton, 541 U.S. at 437). Where an ambiguous or potentially

13 defective instruction is at issue, the court must inquire whether there is a “reasonable likelihood”

14 that the jury applied the challenged instruction in a way that violates the Constitution. Estelle, 502

15 U.S at 72 & n.4. If a constitutional error is found in the jury instructions, the federal habeas court

16 also must determine whether that error was harmless by looking at the actual impact of the error.

17 Calderon v. Coleman, 525 U.S. 141, 146–47 (1998).

18 Here, the state appellate court’s rejection of Mr. Vogt’s claim was not contrary to, and did

19 not involve an unreasonable application of, clearly established United States Supreme Court

20 precedent. See 28 U.S.C. § 2554(d). Mr. Vogt contends that the failure to require proof beyond a

21 reasonable doubt regarding the uncharged offenses violates controlling U.S. Supreme Court

22 authority. Traverse at 4. However, the United States Supreme Court has never held that the

23 introduction of propensity or other allegedly prejudicial evidence violates due process. See

24 Estelle, 502 U.S. at 68–70. Estelle specifically left open the question regarding propensity

25 evidence. See id. at 75 n.5 (“we express no opinion on whether a state law would violate the Due

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

27 charged crime”). But when the U.S. Supreme Court “cases give no clear answer to the question

1 unreasonabl[y] appli[ed] clearly established Federal law.’” Wright v. Van Patten, 552 U.S. 120,

2 126 (2008) (alterations in original) (citation omitted).

3 The California Court of Appeals reasonably applied Reliford to uphold the challenged

4 instructions. The instructions here use even more direct cautionary language than the instructions

5 in Reliford—they caution that if the jury concludes that Mr. Vogt committed the uncharged

6 offenses, that “is only one factor to consider along with all the other evidence” and that “it is not

7 sufficient by itself to prove that the defendant is guilty of the crimes charged in this case.”

8 Answer at 13; CALCRIM Nos. 375 and 1191.

9 Mr. Vogt points to the dissent in Reliford to assert that the preponderance-of-the-evidence

10 standard for the uncharged offenses is “potentially misleading.” Reliford, 29 Cal.4th at 1017

11 (Kennard, J., concurring and dissenting in part); Pet. at 26. Notwithstanding that a dissenting

12 opinion is not binding precedent, the Ninth Circuit has affirmed the Reliford analysis. See Schultz

13 v. Tilton, 659 F.3d 941, 945 (9th Cir. 2011). In Schultz, the Ninth Circuit held that a California

14 Court of Appeal had not acted contrary to federal law in applying the Reliford analysis to uphold a

15 similar instruction to the one here because the instruction “in no way suggests that a jury could

16 reasonably convict a defendant for charged offenses based merely on a preponderance of the

17 evidence.” Schultz v. Tilton, 659 F.3d 941, 945 (9th Cir. 2011). Similarly, courts in this district,

18 including this Court, have upheld CALCRIM Nos. 375 and 1191. See, e.g., Rushing v.

19 Neuschmid, No. 18-CV-02351-BLF, 2020 WL 2404666, at *20 (N.D. Cal. May 12, 2020)

20 (upholding CALCRIM No. 375); Raygoza v. Holland, No. 16-CV-02978-EMC, 2018 WL

21 6002325, at *18 (N.D. Cal. Nov. 15, 2018) (upholding CALCRIM No. 1191). Thus, the state

22 appellate court reasonably upheld CALCRIM Nos. 375 and 1191.2 Ex. H at 17–18.

23 Mr. Vogt contends that the Court should not follow Reliford and Schultz because “it is

24 unreasonable to conclude that this conviction was reached without direct reliance on the

25

26

2 Mr. Vogt also points to Sullivan v. Louisiana, where the Supreme Court held that a “‘beyond a

reasonable doubt’ factual finding cannot be made where the instructional error consists of a

27

misdescription of the burden of proof, which vitiates all the jury’s findings.” Sullivan v.

1 uncharged offense.” Traverse at 7. But the state appellate court reasonably concluded that “the

2 uncharged offense of possessing child pornography does not directly bear on any link in the chain

3 of proof of any element of the charged offenses of rape, lewd or lascivious conduct, or exhibiting

4 harmful materials (a picture of defendant’s erect penis, not child pornography) to a minor.” Ex. H

5 at 17. The state appellate court reasonably concluded that a jury could have reasonable doubt

6 about Mr. Vogt’s possession of child pornography so long as “they are convinced beyond a

7 reasonable doubt of the ultimate fact of . . . intent.” Ex. H at 17.

8 Mr. Vogt’s reliance on Kipp v. Davis, 971 F.3d 939 (9th Cir. 2020) is misplaced. In Kipp,

9 the defendant was tried for the first-degree murder and attempted rape of a woman named Howard

10 in Orange County, but the prosecution presented evidence of an unadjudicated murder and rape of

11 a woman named Frizzell in Los Angeles County. Kipp, 971 F.3d at 943. The Ninth Circuit held

12 that “[i]n order to have properly admitted the unadjudicated Frizzell crime evidence at the Howard

13 trial, the state court was required to have found a ‘pattern and characteristics of the crimes [to] be

14 so unusual and distinctive as to be like a signature.’” Id. at 960. Because the “state court reached

15 that conclusion—but only after disregarding all the dissimilarities between the two crimes” it had

16 “made a crucial factual error and failed to consider the entire state record.” Id. Therefore, the

17 Ninth Circuit concluded that the state court’s “decision was based on an unreasonable

18 determination of the facts” and “that Kipp’s due process right to a fair trial was violated.” Id. In

19 contrast, here, the evidence of child pornography was probative to show propensity and intent of

20 the charged offenses, and the jury was properly instructed that in order to consider this evidence as

21 a factor informing intent, it had to make a preliminary finding that the predicate conduct occurred.

22 See infra Part IV.C.1. As a result, Mr. Vogt’s due process right to a fair trial was not violated by

23 wrongful admission of evidence.

24 Furthermore, even if there was a constitutional error, there was no prejudice by the

25 instructions. Answer at 13. To find a prejudicial error, the court must find that the error had a

26 “substantial and injurious effect or influence in determining the jury's verdict.” Brecht v.

27 Abrahamson, 507 U.S. 619, 623 (1993). In this case, there was other compelling evidence to

1 “extremely credible,” “forthright, honest, and straightforward,” and that their demeanor “was not

2 indicative of anyone that was attempting to manipulate the situation,” hide facts, or manufacture

3 facts. Docket No. 29-18 (“14RT”) at 1652–53.3 For example, J.A. disclosed Mr. Vogt’s ongoing

4 sexual abuse twice to her friends, once in the seventh grade and again in the tenth grade. A.P.’s

5 testimony was corroborated by the text messages between her and Mr. Vogt that her parents had

6 seen on her phone, the “KAVP” found by the police in her father’s shop at the precise location

7 where she said Mr. Vogt had written it during one of their “make out” sessions, and additional text

8 messages from Mr. Vogt on A.P.’s phone when the police interviewed her. The trial court also

9 found that the pretext phone calls that J.A. and A.P. made to Mr. Vogt were further factors that the

10 jury could have or may have used to judge the credibility of the witnesses because the “feigned

11 dropped calls” “was an effort on the part of [Mr. Vogt] to act like the call was dropped or to

12 pretend like he couldn’t hear.” 14RT at 1653. There was, in short, other substantial evidence of

13 Mr. Vogt’s criminal intent.

14 In response, Mr. Vogt contends such evidence does not support his conviction and

15 therefore the “other crimes” evidence was necessary to conviction. Traverse at 9–10. He argues

16 that J.A.’s disclosure of the sexual abuse was not sufficient to convict him because “it could be

17 argued that had she been molested, she would not have sworn her friend to secrecy, and if her

18 friend really believed that J.A. was in danger, she would have reported it despite J.A.’s request for

19 secrecy.” Id. at 9. He further argues that the “KAVP” in A.P.’s father’s shop “could have been

20 left by anyone, at any time” and that he “made no harmful admissions in text messages with A.P.

21 or in the pretext phone calls, which were calculated to draw him out.” Id. He also contends that

22 the fact that J.A.4 “delayed for years before speaking to anyone or making a police complaint, and

23 that she may have been motivated to prevent her sister’s marriage to petitioner, suggests that the

24 charges were fabricated.” Id. at 9–10.

25 His arguments mainly attack the credibility of the victims but in general, a federal habeas

26

3 “14RT” stands for Reporter’s Transcript, volume 14.

27

4 Mr. Vogt mistakenly argues that A.P. delayed for years before disclosing the abuse because she

1 court does not question a jury’s credibility determinations, which are entitled to near-total

2 deference. Jackson v. Virginia, 443 U.S. 307, 326 (1979). Although courts are “permitted to

3 disregard inherently improbable testimony,” United States v. Ramos-Rascon, 8 F.3d 704, 709 n.3

4 (9th Cir. 1993) (citations omitted), in this case, the victims’ testimonies were not inherently

5 improbable. During the motion for a new trial, the trial court noted that “the jury found the

6 witnesses also to be credible” and that no argument or evidence presented during the new trial

7 hearing “would have led [the court] to reach any other conclusion with respect to the credibility of

8 those witnesses that testified.” Docket No. 29-19 (“15RT”) at 1664. As a result, even if

9 CALCRIM Nos. 375 and 1191 were constitutional errors, there is no prejudice because the other

10 substantial evidence supports Mr. Vogt’s conviction.

11 Therefore, Mr. Vogt’s claim fails because the state court’s rejection of his claim was not

12 contrary to, and did not involve an unreasonable application of, clearly established United States

13 Supreme Court precedent, or involved an unreasonable determination of the facts in light of the

14 evidence presented in the state court proceeding. See 28 U.S.C. § 2554(d). The Court DENIES

15 Mr. Vogt’s CALCRIM Nos. 375 and 1191 instructional error claim.

16 B. Child Sexual Abuse Accommodation Syndrome Evidence and Jury Instruction

17 Mr. Vogt also asserts a violation of his due process rights by the admission of Child Sexual

18 Abuse Accommodation Syndrome (“CSAAS”) evidence and the related jury instruction that stated

19 the jury may use CSAAS evidence to conclude that the accuser is believable. Pet. at 31–43.

20 1. Background

21 During trial, the prosecution moved in limine to present an expert on CSAAS, Dr. Miriam

22 Wolf. Ex. H at 27. “Dr. Wolf testified that CSAAS is a framework for categorizing patterns of

23 behavior commonly observed in children who report sexual abuse . . . The five parts of CSAAS

24 are: secrecy; helplessness; entrapment and accommodation; delayed, conflicting, and

25 unconvincing disclosure; and recantation.” Id. at 27–28. The following is Dr. Wolf’s testimony

26 as summarized by the California Court of Appeal:

27 Regarding secrecy, Dr. Wolf testified that abusers are usually more

communicate that the matter should be kept secret, either by direct

1 threats or subtle messages. Secrecy may be promoted by

“grooming”—special treatment like spending time with or buying

2 gifts for the child.

3 As to helplessness, Dr. Wolf testified that children may feel they

cannot go to someone for help, especially if the abuser is a caretaker

4 or has authority over the child. Thus, children do not often protest

when they have to interact with a molesting family member.

5

With regard to entrapment and accommodation, Dr. Wolf testified

6 that it can be emotionally difficult for a child to think a caregiver is

doing something bad, so the child may come up with a different

7 explanation or feel at fault. Some children disassociate from what is

happening and show no outward clues.

8

As for delayed, conflicted, and unconvincing disclosure, Dr. Wolf

9 testified that children may not disclose the abuse to anyone until

months or years later. A child who does disclose abuse may be

10 conflicted and the recounting may be jumbled.

11 Finally, as to retraction, Dr. Wolf testified that children may take

back their claims once they understand the consequences of telling.

12

13 Id. During cross-examination, Dr. Wolf, among other things, agreed with defense counsel that

14 there is no major organization that accepts CSAAS as a diagnosis. Id. at 28. She also agreed that

15 there was no way to tell whether a child had been sexually abused by looking at or even

16 interacting with the child. Id. Defense counsel did not call an opposing expert. Id. at 29.

17 The California Court of Appeal rejected Mr. Vogt’s contention that the CSAAS is

18 non-probative, non-reliable, and likely to mislead the jury because “the law in California is settled

19 that CSAAS is relevant and probative for the limited purpose of rebutting misconceptions about

20 child sexual abuse victims.” Id. Specifically, the court relied on three California Supreme Court

21 cases to conclude that “Dr. Wolf’s testimony was probative and relevant to disabuse the jury of

22 any misconceptions it may have had about the behavior of child sexual abuse victims such as J.A.,

23 who kept defendant’s abuse secret for many years and did not outwardly show signs of abuse.” Id.

24 at 31; see People v. McAlpin, 53 Cal.3d 1289, 1299–1300 (1991) (acknowledging that expert

25 testimony on the common reactions of a child molestation victim is “admissible to rehabilitate [the

26 child’s] credibility” but is inadmissible “to prove that [the child] has in fact been sexually

27 abused.”); People v. Bledsoe, 36 Cal.3d 236, 247–49, 251–52 (1984) (concluding that expert

1 the presumed behavior of rape victims, but rather as a means of proving—from the alleged

2 victim’s post-incident trauma—that a rape” had occurred); People v. Brown, 33 Cal.4th 892, 895,

3 900, 908 (2004) (holding that expert testimony in a domestic violence case could be admitted to

4 explain why domestic violence victims “often later deny or minimize the assailant’s conduct” but

5 could not be admitted “to prove the occurrence of the charged crimes”).

6 The court also noted that Dr. Wolf had more knowledge than jurors about the behavior of

7 child sexual abuse victims, and her testimony on this subject could assist the jurors in

8 understanding such behavior. Ex. H at 32 (citing Cal Evid. Code § 801(a)). Further, “[a]ny

9 potential confusion about the use of the CSAAS evidence was addressed by the limiting

10 instructions, which properly stated the law.” Id. The trial court had instructed the jury, pursuant

11 to CALCRIM No. 1193, that Dr. Wolf’s testimony about CSAAS “is not evidence that the

12 defendant committed any of the crimes charged against him” and that the jury “may consider this

13 evidence only in deciding whether or not J.A.’s conduct was not inconsistent with conduct of

14 someone who has been molested, and in evaluating the believability of her testimony.” Id. at 29.

15 2. Analysis

16 The state appellate court’s rejection of Mr. Vogt’s claim was not contrary to, and did not

17 involve an unreasonable application of, clearly established U.S. Supreme Court precedent. See 28

18 U.S.C. § 2554(d).

19 a. Admission of CSAAS Evidence

20 In his petition, Mr. Vogt first contends that the California Court of Appeal misapplied state

21 law in finding that the CSAAS evidence had been properly admitted. Pet. at 36–38. But it is

22 well-established that “it is not the province of a federal habeas court to reexamine state-court

23 determinations on state-law questions.” Estelle, 502 U.S. at 67. “[F]ederal habeas corpus relief

24 does not lie for errors of state law.” Id. Thus, Mr. Vogt’s assertion that the state court misapplied

25 California law does not constitute a basis for the Court to grant federal habeas relief.

26 The Court turns to the question of whether the admission of the CSAAS evidence violated

27 Mr. Vogt’s federal constitutional rights. The admission of prejudicial evidence may make a trial

1 may draw from the evidence.” Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991)

2 (emphasis in original). “Even then, the evidence must ‘be of such quality as necessarily prevents a

3 fair trial.’ Only under such circumstances can it be inferred that the jury must have used the

4 evidence for an improper purpose.” Id.

5 Mr. Vogt argues the same claim he made on direct appeal, that the CSAAS evidence was

6 unnecessary because “it is readily understandable that a child or teenager might delay reporting

7 out of normal juvenile reticence” given that everyone has once been children. Pet. at 28.

8 Specifically, he asserts that “the prevalence of sex education in modern elementary schools, and

9 the public debate which surrounds the entire subject, make it highly unlikely that jurors typically

10 still believe that minors are not exposed to the knowledge that sexual contact with adults is highly

11 inappropriate and illegal.” Id. at 37. According to Mr. Vogt, given that “[t]hese are matters of

12 common knowledge[] it is not necessary to educate the jury on reasons why a child witness may

13 hesitate to come forward.” Id. As in his appeal, he fails again to cite any authority supporting this

14 conclusory argument.

15 He also asserts that the trial court should not have admitted the CSAAS evidence because

16 there was no foundation that Mr. Vogt was a caretaker or family member. Pet. at 37–38. Without

17 any supporting authority, he claims that “CSAAS evidence is typically deemed relevant because

18 the alleged perpetrator is a parent or step-parent, or has some institutional relationship to the

19 victim such as teacher or counselor.” Id. at 37. But there is no such foundation requirement for

20 the admissibility of CSAAS evidence. Mr. Vogt cites to Dr. Wolf’s testimony, but her testimony

21 does not support his claim. Id. In response to a question regarding how a child might feel about a

22 person who is supposed to be in a caretaking position and why he might be molesting them, she

23 explained that “most children express a lot of ambivalence about a perpetrator who is also a

24 caretaker or a family member” the reason being that “sexual abuse and the relationship is not all

25 good or all bad.” Docket No. 29-12 (“8RT”) at 629. Dr. Wolf did not testify that CSAAS only

26 occurs when the perpetrator is a caretaker or a family member. To the contrary, she testified that a

27 perpetrator can be any adult who “grooms” a child by, e.g., buying them gifts or spending time

1 with J.A. by caring for her when Melissa was working or at school and buying her things.”

2 Answer at 20; see Docket No. 29-11 (“7RT”) at 480, 482, 485–86, 497 (testimony about Mr. Vogt

3 taking care of J.A. when Melissa was at work or school); 8RT at 681, 689, 699–700 (J.A.

4 testifying about the gifts Mr. Vogt bought her).

5 Thus, the state appellate court reasonably found that “Dr. Wolf’s testimony was probative

6 and relevant to disabuse the jury of any misconceptions it may have had about the behavior of

7 child sexual abuse victims such as J.A., who kept defendant’s abuse secret for many years and did

8 not outwardly show signs of abuse.”5 Ex. H at 31–32. Mr. Vogt asserts that the three California

9 Supreme Court cases that the state appellate court relied on are not applicable because they are

10 factually distinguishable. See McAlpin, 53 Cal.3d at 1299–1300 (1991) (admitting the expert

11 testimony to explain the behavior of the mother and not the child to show that it was not unusual

12 for a parent to refrain from reporting her own child’s molestation); Bledsoe, 36 Cal.3d at 247–49,

13 (1984) (concerning an adult rape victim); Brown, 33 Cal.4th at 895 (2004) (concerning a domestic

14 violence victim). But the principles that the California Supreme Court applied in these three cases

15 also applies here—that expert testimony on rape trauma syndrome, battered woman syndrome, or

16 CSAAS can be admitted to counter misconceptions about the behavior of victims but cannot be

17 admitted to show that the victim was in fact subject to rape, domestic violence, or child sexual

18 abuse.6 See id.

19 Similarly, the Ninth Circuit rejected a habeas claim that the admission of CSAAS evidence

20

5 Mr. Vogt cites out-of-circuit decisions from over twenty years ago where courts have excluded

21

CSAAS evidence, but these cases are either distinguishable or consistent with the Court’s

conclusion. Pet. at 38; see, e.g., Irving v. State, 705 So. 2d 1021, 1022–23 (Fla. Dist. Ct. App.

22

1998) (concluding the admission of CSAAS evidence to prove that the alleged victim exhibited

symptoms of sexual abuse constituted harmful error); State v. Foret, 628 So. 2d 1116, 1131 (La.

23

1993) (concluding that “CSAAS-based evidence should be admissible only for the limited purpose

of explaining, in general terms, certain reactions of a child to abuse that would be used to attack

24

the victim/witness' credibility”).

25

6 Mr. Vogt points to People v. Bowker, where the California Court of Appeal held that it is

improper for an expert to give “‘general’ testimony describing the components of the syndrome in

26

such a way as to allow the jury to apply the syndrome to the facts of the case and conclude the

27

child was sexually abused.” People v. Bowker, 203 Cal.App.3d 385, 393 (Ct. App. 1988). But the

subsequent California Supreme Court decisions in McAlpin, Bledsoe, and Brown where the court

1 violated the defendant’s due process rights because “CSAAS testimony is admissible in federal

2 child-sexual-abuse trials, when the testimony concerns general characteristics of victims and is not

3 used to opine that a specific child is telling the truth.” Brodit v. Cambra, 350 F.3d 985, 991 (9th

4 Cir. 2003). The Ninth Circuit has “rejected the contention that CSAAS testimony improperly

5 bolsters the credibility of child witnesses”—the same argument that Mr. Vogt advances here.7 Id.;

6 Traverse at 13, 15–16; see also Patino v. Koenig, No. 19-CV-04462-WHO (PR), 2020 WL

7 5257867, at *5 (N.D. Cal. Sept. 3, 2020) (relying on McAlpin and Brodit to deny a habeas claim

8 that the admission of CSAAS testimony violated defendant’s due process rights).

9 Mr. Vogt contends that Brodit is distinguishable and more akin to Snowden v. Singletary,

10 135 F.3d 732 (11th Cir. 1998). Traverse at 15–16. Specifically, Mr. Vogt argues that the

11 prosecutor improperly used the CSAAS testimony to bolster the witness’ credibility. Id. He

12 points to three parts of the prosecutor’s argument where she reiterated Dr. Wolf’s testimony that

13 “a victim of a chronic sexual assault” will not be able to remember every detail of the assault, that

14 90% of sexual assault perpetrators are known by their victims,8 and that perpetrators can groom

15

7 Mr. Vogt contends that Brodit does not conform with subsequent California law concerning

16

expert testimony. Traverse at 14. However, his reliance on People v. Vang, 52 Cal.4th 1038

(2011) is misplaced. In Vang, the Court of Appeal held that the trial court erred when it allowed a

17

gang expert to respond to hypothetical questions regarding whether the defendants’ assault was

gang related. Vang, 52 Cal.4th at 1044. The Court of Appeal concluded that the prosecution could

18

not use hypothetical questions that closely tracked the evidence to conceal an expert’s improper

testimony on the real defendants’ subjective knowledge and intent. Id. The California Supreme

19

Court reversed and held that “an expert may render opinion testimony on the basis of facts given

in a hypothetical question that asks the expert to assume their truth.” Id. at 1045 (internal

20

quotation marks omitted). In this case, it is unclear what Mr. Vogt’s argument is based on Vang.

He asserts that the “only reason Dr. Wolf was asked to testify was that her opinion was relevant to

21

the victim’s credibility.” Traverse at 14. To the extent that his argument is that Dr. Wolf’s

testimony is improper because it is used to bolster the victims’ credibility, his argument fails for

22

the reasons above.

23

8 Mr. Vogt contends that Dr. Wolf’s testimony that 90% of sexual assault perpetrators are known

by their victims “ran afoul of other authority which restricts the use of expert statistical estimates

24

to corroborate an alleged child sex victim.” Traverse at 16. But the cases he cites are

distinguishable. In People v. Julian, the California Court of Appeal held that CSAAS “expert

25

opinions on the statistical probability of guilt” are inadmissible because they may distract the jury

and are irrelevant. People v. Julian, 34 Cal. App. 5th 878, 886 (2019), as modified (May 13,

26

2019). In Julian, the expert had testified that the percentage of false allegations in child sexual

abuse cases ranges from 1% to 8%. Id. at 883. Similarly, in People v. Lapenias, the California

27

Court of Appeal held that the expert testimony that it is “rare” for children to make false

1 their victims. Id. (citing Docket No. 29-15 (“11RT”) at 1195, 1206–07). Contrary to Mr. Vogt’s

2 contention, Dr. Wolf’s testimony properly concerns the “general characteristics of victims” and

3 was not used to opine that the witnesses were telling the truth. Brodit, 350 F.3d at 991. Thus, this

4 case is distinguishable from Snowden, where the expert’s testimony—that “99.5% of children tell

5 the truth” and that the expert “had not personally encountered an instance where a child had

6 invented a lie about abuse”—was linked to the expert’s interviews with the child who was

7 identified by the prosecution as a victim. Snowden, 135 F.3d at 737–38. The Eleventh Circuit

8 concluded that such evidence is improper. Id. Here, Dr. Wolf did not testify about the specifics of

9 the case, see 8RT at 605–61, and the jury instructions made clear that the CSAAS testimony “is

10 not evidence that the defendant committed any of the crimes charged against him,” CALCRIM

11 No. 1191.

12 Furthermore, even if there was a constitutional error, Mr. Vogt has made no showing that

13 alleged “error had a substantial and injurious effect on the verdict.” Brecht, 507 U.S. at 623.

14 During the defense counsel’s cross-examination, Dr. Wolf admitted to the limitations and

15 problems with CSAAS evidence. 8RT at 652–57. For example, she agreed with defense counsel

16 that there was no major organization that accepted CSAAS as a diagnosis and that there was no

17 way to tell whether a child had been sexually abused by looking at or even interacting with the

18 child. Id. at 652–53. Defense counsel also reiterated this to the jury during his closing argument.

19 See 11RT at 1222, 1228. Additionally, as the state appellate court reasonably found, “[a]ny

20 potential confusion about the use of the CSAAS evidence was addressed by the limiting

21 instructions, which properly stated the law.” Ex. H at 32. First, CALCRIM No. 332 instructed the

22 jury that it was “not required to accept” expert testimony “as true or correct” and that it may

23 “disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.”

24 Docket No. 29-1 (“2CT”) at 334.9 Second, CALCRIM No. 1193 instructed the jury that “Miriam

25 Wolf’s testimony about child sexual abuse accommodation syndrome is not evidence that the

26

on the statistical probability of how often children lie about being victims of sexual abuse. She

27

only opined that 90% of sexual assault perpetrators are known by their victims.

1 defendant committed any of the crimes charged against him.” It instructed the jury that it may

2 consider the evidence “only in deciding whether or not [J.A.]’s conduct was not inconsistent with

3 the conduct of someone who has been molested, and in evaluating the believability of her

4 testimony.” 2CT at 321. Therefore, even if there was a constitutional error from the admission of

5 CSAAS evidence—and there was not—it would not have had a substantial and injurious effect on

6 the verdict.

7 The Court DENIES Mr. Vogt’s claim that the admission of CSAAS evidence violated his

8 due process rights.

9 b. CSAAS Jury Instruction

10 Mr. Vogt also asserts that the use of CALCRIM No. 1193 violated his due process rights.

11 Pet. at 39. As a preliminary matter, the parties dispute whether Mr. Vogt exhausted this claim. A

12 federal court generally may not grant relief on an unexhausted claim. See 28 U.S.C. § 2254(b)(1).

13 “Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either

14 the fact or length of their confinement are required first to exhaust state court remedies, either on

15 direct appeal or through collateral proceedings, by presenting the highest state court available with

16 a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court.”

17 Cardoza v. Hatton, No. 16-CV-03666-EMC, 2017 WL 1493106, at *2 (N.D. Cal. Apr. 26, 2017).

18 Contrary to the Respondent’s argument, Mr. Vogt has exhausted his CSAAS jury instruction claim

19 because he asserted this claim in his opening and reply briefs. See Ex. E (Vogt opening brief on

20 direct appeal) at 118 (arguing that “the instruction could easily be construed in a manner

21 inconsistent with the rule that a CSAAS expert’s testimony is not intended and should not be used

22 to determine whether the child’s claim is true.”); Docket No. 30-1, Ex. G (Vogt reply brief on

23 direct appeal) at 48.

24 That said, Mr. Vogt’s claim fails because the state appellate court’s decision that the

25 limiting instructions “properly stated the law” was not contrary to or involved an unreasonable

26 application of clearly established federal law as determined by the Supreme Court. See 28 U.S.C.

27 § 2554(d). CALCRIM No. 1193, the standard jury instruction regarding the permissible use of

1 You have heard testimony from Miriam Wolf regarding child sexual

abuse accommodation syndrome.

2

Miriam Wolf’s testimony about child sexual abuse accommodation

3 syndrome is not evidence that the defendant committed any of the

crimes charged against him.

4

You may consider this evidence only in deciding whether or not

5 [J.A.]’s conduct was not inconsistent with the conduct of someone

who has been molested, and in evaluating the believability of her

6 testimony.

7 2CT at 321. Mr. Vogt asserts that the instruction is “self-contradictory” because although it

8 instructs the jury to not consider the CSAAS testimony as evidence that he had committed any of

9 the charged crimes, it also instructs the jury to consider the testimony in deciding whether the

10 victim’s conduct was “not inconsistent” with that of a molested victim, i.e., that the victim’s

11 conduct was consistent with that of a molested victim. Pet. at 39. He also asserts that the

12 instruction improperly allowed the jury to use the CSAAS evidence “in evaluating the

13 believability” of the victim’s testimony, i.e., the credibility of the victim. Id.

14 However, Mr. Vogt has failed to show that the error “so infected the entire trial that the

15 resulting conviction violates due process.” Estelle, 502 U.S. at 72. CALCRIM No. 1193 is

16 consistent with California Supreme Court precedent as well as Ninth Circuit precedent—that

17 CSAAS evidence can be used to counter any misconceptions about victim behavior but cannot be

18 used as evidence that the victim experienced sexual abuse. See supra Part IV.B.2.a. The jury was

19 not instructed to use the CSAAS evidence as proof that a crime had occurred or that the witnesses

20 were telling the truth. See 2CT at 321. Although the instruction states that CSAAS evidence can

21 be used to evaluate the “believability of [J.A.]’s testimony” this is consistent with the authority

22 cited above allowing CSAAS evidence to counter misconceptions about victim behavior. It is also

23 not the same as generally instructing the jury that the CSAAS evidence can show that J.A. was

24 telling the truth. Answer at 25. Further, a “single instruction to a jury may not be judged in

25 artificial isolation, but must be viewed in the context of the overall charge.” Middleton, 541 U.S.

26 at 437. The other jury instructions undermine a conclusion that the CALCRIM No. 1191

27 constitutes a violation of due process. They instruct that the prosecutor had the burden of proving

1 true and accurate. See, e.g., Docket No. 29 (“1CT”) at 300 (CALCRIM No. 220, which defines

2 the reasonable doubt standard); 2CT at 334 (CALCRIM No. 332, which states that the jury does

3 not have to accept an expert opinion as true).

4 Accordingly, the Court DENIES Mr. Vogt’s claim of instructional error regarding CSAAS

5 evidence.10 The Court will review Mr. Vogt’s ineffective assistance of counsel claim regarding

6 CSAAS evidence below. See infra Part IV.D.1.

7 C. Child Pornography Evidence

8 Next, Mr. Vogt challenges the evidence linking him to the Dell computer containing child

9 pornography and intimate photographs of Jo.A. Specifically, Mr. Vogt asserts a violation of due

10 process by (1) the admission of child pornography as evidence of sexual intent and criminal

11 propensity; (2) the presentation of allegedly “false testimony” by Wong, regarding the possession

12 and control of the Dell computer; and (3) the prosecutor’s failure to disclose its computer forensic

13 expert Terence Wong’s technical notes documenting his analysis of the Dell computer under

14 Brady v. Maryland, 373 U.S. 83 (1963).

15 1. Admission of Child Pornography Evidence

16 First, Mr. Vogt argues a violation of due process by the admission of child pornography as

17 evidence of sexual intent and criminal propensity. Pet. at 43–53.

18 a. Background

19 At the beginning of trial, Judge Clifford Cretan ruled that the evidence of child

20 pornography found on the Dell computer was admissible under Evidence Code sections 1101(b)

21 and 1108. Ex. H at 9–10. The parties stipulated that the videos would not be played but that the

22 jury would hear testimony regarding how the videos were discovered and would view the still

23 photographs from the videos. Id. Later, defense counsel objected under Evidence Code

24 section 352 to the prosecution’s move to present the still photographs to the jury. Id. at 10. Judge

25 Leland Davis noted that Judge Cretan had already ruled the evidence was admissible and that he

26

27

10 Given the compelling evidence that was unrelated to the CSAAS, see supra Part IV.A.2, any

1 had exercised his independent discretion to disallow more than half of the photographs the

2 prosecution initially sought to admit. Id. The trial court gave limiting instructions to the jury,

3 CALCRIM No. 375 and CALCRIM No. 1191, explaining how the jury should consider the

4 evidence of the uncharged offenses. See supra Part IV.A.

5 On direct appeal, the state appellate court rejected Mr. Vogt’s argument that the trial court

6 had erred in finding that the potential prejudice of the child pornography evidence did not

7 substantially outweigh its probative value. Ex. H at 8–15. First, the state appellate court

8 concluded that the evidence of child pornography was probative to show intent and because it had

9 “some tendency in reason to show that the defendant is predisposed to engage in the conduct of

10 the type charged.” Id. at 11–12. In particular, the court relied on People v. Menro, 11 Cal.4th 786

11 (1995), where the California Supreme Court “found no abuse of discretion in the admission of

12 pornographic magazines and photographs featuring young boys in the nude found in the

13 defendant’s possession because they ‘yielded evidence from which the jury could infer that he had

14 a sexual attraction to young boys and intended to act on that attraction.’” Id. at 12 (quoting

15 Menro, 11 Cal.4th at 865). Similarly, in this case, the court held that the videos on the Dell

16 computer, which “depicted sexual intercourse and oral copulation between adult males and young

17 girls of similar ages to J.A., A.P. and Jo.A. at the time of the abuse” were “probative of

18 defendant’s sexual attraction to young girls and his intent to act on that attraction.” Id.

19 The court also held that Mr. Vogt’s reliance on People v. Earle, 172 Cal.App.4th 372

20 (2009) was unavailing. Id. In Earle, the court held that “a propensity to commit one kind of sex

21 act cannot be supposed, without further evidentiary foundation, to demonstrate a propensity to

22 commit a different act.” Earle, 172 Cal.App.4th at 399 (emphasis in original). As a result, the

23 court concluded that evidence of indecent exposure “was simply irrelevant to the assault charge,

24 i.e., it had no tendency in reason to show that he committed the latter offense.” Id. at 400

25 (emphasis in original). In this case, the state appellate court distinguished Earle because there was

26 “sufficient evidentiary foundation to demonstrate his criminal propensity to commit the charged

27 crimes against these victims.” Ex. H at 13. The “similarities between the charged offenses and

1 defendant’s efforts to obtain nude and intimate photographs of the victims”—e.g., Mr. Vogt had

2 “solicited nude photographs from J.A. and A.P., stole intimate photographs of Jo.A., and

3 surreptitiously photographed Jo.A. and K.A. while they were in the shower”—provided sufficient

4 evidentiary foundation. Id. at 12–13. The court also held that there was sufficient nexus between

5 the child pornography videos and the charged offenses because “J.A. testified that defendant

6 watched pornography videos on the Dell computer while molesting her,” thus “the child

7 pornography and pornography videos used in the commission of the charged offenses were traced

8 to the same computer.” Id. at 13.

9 Second, the court concluded that the evidence of child pornography videos was not

10 stronger and more inflammatory than the charged acts. Id. Although the videos were “obviously

11 disturbing,” “they were not more inflammatory than the charged offenses against J.A., which

12 involved dozens of instances of rape, oral sex, and threats to kill J.A. that began when she was

13 5-years-old.” Id. Moreover, the court held that the evidence was not stale in time because the

14 videos remained on the computer at the time of defendant’s arrest and were saved in April, June,

15 and August of 2009 “while the abuse of J.A. was ongoing or just coming to an end, and while

16 defendant was engaged in lewd acts with A.P. and Jo.A.” Id. at 14.

17 Third, the court held that the jury was not likely to be confused or distracted from the main

18 inquiry because the “charged offenses involved discrete acts committed against the testifying

19 victims,” which are “easily distinguishable from the separate issue of defendant’s possession of

20 child pornography videos.” Id. The court acknowledged that “the jury could have been tempted

21 to punish defendant for the uncharged offense of possessing child pornography,” but it could not

22 conclude that “this potential prejudice substantially outweighed the probative value of the

23 evidence.” Id. Finally, the court held that the “trial court exercised reasonable discretion in

24 limiting the presentation” of the child pornography evidence to minimize prejudice as the

25 testimony “involved only 2 of the 21 witnesses and occupied only 26 pages of a large, 15-volume

26 trial transcript.” Id. The court ultimately concluded that the trial court acted within its discretion

27 when it admitted the child pornography evidence to prove Mr. Vogt’s sexual intent and criminal

1 b. Analysis

2 To obtain federal habeas relief for an error in the admission of challenged evidence, a

3 petitioner must show that the error “so infused the trial with unfairness as to deny due process of

4 law.” Estelle, 502 U.S. at 75 (1991). The admission of prejudicial evidence may make a trial

5 fundamentally unfair and violate due process “[o]nly if there are no permissible inferences the jury

6 may draw from the evidence.” Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991)

7 (emphasis in original). “Even then, the evidence must ‘be of such quality as necessarily prevents a

8 fair trial.’ Only under such circumstances can it be inferred that the jury must have used the

9 evidence for an improper purpose.” Id. Here, the state court’s decision was not contrary to, or an

10 unreasonable application of, clearly established federal law, or involved an unreasonable

11 determination of the facts considering the evidence presented in the state court proceeding. See 28

12 U.S.C. § 2554(d).

13 In Mr. Vogt’s view, the “admission of irrelevant and highly inflammatory evidence,” such

14 as the child pornography evidence was a violation of due process. Traverse at 19. He asserts that

15 the evidence is irrelevant because the possession of child pornography is not correlated with the

16 commission of contact sex offenses. Id. But the state appellate court concluded that the evidence

17 was relevant for the purposes of showing intent under California Evidence Code section 1101(b)

18 and propensity under section 1108. Ex. H at 10–15. Section 1101(b) allows the “admission of

19 evidence that a person committed a crime . . . when relevant to prove some fact,” such as intent,

20 but not to prove a person’s “disposition to commit such an act.”11 Cal. Evid. Code § 1101(b).

21 Section 1108, however, allows evidence of the defendant’s commission of another sexual offense

22 to prove criminal disposition or propensity in cases in which the defendant is accused of a sexual

23 offense, if the evidence is not inadmissible pursuant to Section 352. Id. § 1108(a); People v.

24 Falsetta, 21 Cal. 4th 903, 911 (1999). Section 352 recites, a “court in its discretion may exclude

25 evidence if its probative value is substantially outweighed by the probability that its admission

26

11 To establish the charges of lewd and lascivious acts with minors and the charge of sending or

27

exhibiting harmful matter to a minor, the prosecution had to prove that Mr. Vogt committed these

1 will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice,

2 of confusing the issues, or of misleading the jury.” Id. § 352. In order to find constitutional error,

3 the Court must find that there were no permissible inferences under both theories. See Hebner v.

4 McGrath, 543 F.3d 1133, 1137 (9th Cir. 2008) (denying an ineffective assistance of counsel

5 habeas claim where the evidence would have been admitted to show common plan or intent under

6 section 1101(b) even if it were excluded under section 1108).

7 The state appellate court’s conclusion is reasonable because the admission of the child

8 pornography evidence was properly admitted to show intent and propensity to commit the charged

9 crimes. Mr. Vogt asserts that “the propensity to possess child pornography is not the same as

10 propensity to commit a lewd and lascivious act.” Pet. at 50–51. His reliance on People v. Earle,

11 however, is misplaced as reasonably explained by the state appellate court. Ex. H at 12–13.

12 Moreover, the other cases on which Mr. Vogt relies are also distinguishable. For example, he

13 asserts that the state appellate court decision was contrary to the U.S. Supreme Court’s decision in

14 Paroline v. United States, 572 U.S. 434 (2014), which limited the admissibility of child

15 pornography evidence. Pet. at 44–45. But Mr. Vogt misinterprets Paroline. Paroline examined

16 how to determine “the amount of restitution a possessor of child pornography must pay to the

17 victim whose childhood abuse appears in the pornographic materials possessed.” Paroline, 572

18 U.S. at 439. The U.S. Supreme Court held that restitution is proper only to the extent the

19 defendant’s offense proximately caused a victim’s loss. Id. at 448. Traverse at 19. Paroline does

20 not support Mr. Vogt’s contention that the possession of child pornography is irrelevant to the

21 commission of contact sex offenses. Traverse at 19.

22 Similarly, United States v. Sumner, 119 F.3d 658 (8th Cir. 1997) and United States v.

23 Roberts, 88 F.3d 872 (10th Cir. 1996) are distinguishable because they do not “discuss whether

24 possession of child pornography is relevant to a defendant’s disposition to commit sexual assault

25 on a child.” Answer at 37. In Sumner, the Eighth Circuit concluded that the district court erred in

26 admitting evidence regarding two prior incidents in which the defendant sexually assaulted girls

27 under the age of fourteen because the evidence “does no more than show that [defendant] has ‘a

1 California law, other evidence of sexual abuse can be used to show propensity in sexual abuse

2 cases. Cal. Evid. Code § 1108. In Roberts, the Tenth Circuit remanded the issue of admitting

3 evidence that defendant sexually abused nine other women over the past twenty years for a

4 hearing to determine whether the government has established the defendant engaged in a common

5 scheme to sexually abuse women. Roberts, 88 F.3d at 875. Here, the state appellate court held

6 that the child pornography evidence was relevant for the purposes of establishing lewd intent and

7 propensity, not a common scheme or plan. Ex. H at 12–13.

8 Likewise, People v. Soto, 64 Cal.App.4th 966 (1998) is distinguishable because it does not

9 concern the admission of child pornography evidence. However, Soto otherwise supports the state

10 appellate court’s conclusion in this case. In Soto, the California Court of Appeal held that the trial

11 court properly admitted evidence of prior sexual conduct by the defendant involving his sister and

12 a niece in a case where defendant was charged for lewd and lascivious conduct with a child under

13 14 years of age, another niece. Soto, 64 Cal.App.4th at 991–92. The court held that the

14 prejudicial effect of the evidence did not outweigh the probative nature because the evidence

15 involved similar conduct to the charged offense with victims within the same age range as the

16 victim in the case. Id. Likewise, in this case, the child pornography evidence involved similar

17 conduct to the charged offenses. The child pornography depicted sex acts with young girls

18 approximately the same age as J.A. when Mr. Vogt molested her. Answer at 36. And the videos

19 were created in 2009, while the abuse of J.A. was either ongoing or just coming to an end, and

20 while Mr. Vogt was engaged in lewd acts with A.P. and Jo.A. Id. Thus, the state appellate court

21 reasonably concluded that the “similarities between the charged offenses and the sexual conduct

22 depicted in the child pornography videos, along with the evidence of defendant’s efforts to obtain

23 nude and intimate photographs of the victims” provided sufficient foundation to show that the

24 propensity to possess child pornography is the same as the propensity to commit a lewd and

25 lascivious act with or assault of a minor. Ex. H at 12–13.

26 Mr. Vogt also relies on the testimony of Dr. Avak Howsepian from his motion for a new

27 trial to argue that there is “[n]o known credible significant correlation” between the viewing of

1 Dr. Howsepian also testified that there was at least one study suggesting a correlation between

2 viewing child pornography and pedophilia and that there was a correlation between pedophilia or

3 pedophilic disorder and child sexual offenses. 13RT at 1424, 1432–34. He also acknowledged a

4 study that found that 82% of contact sexual offenders had abused a child sexually prior to having

5 possessed child pornography. Id. at 1427. Respondent contends that Mr. Vogt committed his acts

6 of sexual abuse on J.A. prior to any evidence of him possessing child pornography is significant

7 considering this study. Answer at 38. Dr. Howsepian also opined that someone who had

8 expressed sexual interest in girls 18 or younger would be more likely to possess child pornography

9 than someone who had not. 13 RT at 1430. Thus, Dr. Howsepian’s testimony does not contradict

10 the state appellate court’s conclusion that possession of child pornography was evidence of

11 propensity and lewd intent.12

12 Further, Mr. Vogt asserts that the child pornography evidence was irrelevant because there

13 “was insufficient foundation to connect” him to it. Pet. at 43. But the record does not support this

14 claim. Melissa testified that Mr. Vogt was usually the only one who would use the Dell computer

15 where the child pornography was found, and J.A. had never seen anyone other than Mr. Vogt use

16 the computer. 7RT at 515; 8RT at 731. Although Jo.A. testified that she would sometimes use the

17 computer, 7RT at 390–94, and Wong testified that he could not determine who “controlled” the

18 computer, 9RT at 885–86, Wong testified that “most” or a “majority” of email activity found on

19 the Dell computer was attributable to Mr. Vogt. 13RT at 1405. And as explained below, the

20 Court rejects Mr. Vogt’s arguments that the prosecution engaged in misconduct or that there were

21 other errors in linking the child pornography to him. See infra Parts IV.C.2–3, IV.D.2–3; Ex. H at

22 13.

23 Finally, the probative value of the possession of child pornography outweighed any

24 prejudicial effect. Cal. Evid. Code § 352. As the state appellate court reasonably held, the child

25

12 Mr. Vogt also asserts that Dr. Howsepian’s testimony that there is a correlation between

26

domestic violence and the commission of child sex offenses, 13 RT at 1420, could have been a

“basis for doubt [about] whether the proper person was accused” because “Keith Addison had a

27

history of domestic violence.” Traverse at 18. To the contrary, the testimony is irrelevant because

1 pornography evidence was less inflammatory than J.A.’s testimony that Mr. Vogt repeatedly

2 molested her since she was five or six years old until she was 13. Ex. H at 13–14. Mr. Vogt’s

3 other arguments concern the alleged prejudice from the lowered standard of proof to the “other

4 crimes” evidence and the admission of CSAAS testimony, which the Court rejects above. See

5 supra Part IV.C.3. Accordingly, the state court reasonably found Mr. Vogt’s due process rights

6 were not violated by the admission of the challenged evidence.

7 The Court DENIES Mr. Vogt’s claim regarding the admissibility of the child pornography

8 evidence. The Court will review Mr. Vogt’s ineffective assistance of counsel claim regarding

9 CSAAS evidence below. See infra Part IV.D.2.

10 2. False Testimony by Prosecution’s Computer Expert

11 Next, Mr. Vogt asserts a violation of his due process rights by the presentation of allegedly

12 “false testimony” by Wong, regarding the possession and control of the Dell computer. Pet. at

13 65–67. To establish a due process violation based on the government’s use of false or misleading

14 testimony, Mr. Vogt must show that “(1) the testimony (or evidence) was actually false, (2) the

15 prosecution knew or should have known that the testimony was actually false, and (3) that the

16 false testimony was material.” United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003)

17 (citing Napue v. People of State of Ill., 360 U.S. 264, 269–71 (1959)). A new trial is required if

18 “the false testimony could . . . in any reasonable likelihood have affected the judgment of the

19 jury.” Giglio v. United States, 405 U.S. 150, 154 (1972). But a new trial is not automatically

20 required “whenever a combing of the prosecutors’ files after the trial has disclosed evidence

21 possibly useful to the defense but not likely to have changed the verdict.” Id. (internal quotation

22 marks omitted).

23 a. Background

24 During trial, the prosecution’s computer forensic expert Terence Wong “testified that

25 during his examination of the Dell computer, he determined the email account for

26 ‘kyle2002@yahoo.com’ was ‘the most frequent used e-mail’ on that computer because he ‘saw

27 many in-boxes for that e-mail address . . . the majority of them were for that e-mail address.’” Ex.

1 computer but did not do a statistical analysis and could not conclusively say who controlled the

2 computer.” Id. The only discovery obtained by Mr. Vogt’s trial counsel concerning the Dell

3 computer “was a three-page report by Wong and copies of the still photographs that the

4 prosecution intended to present at trial.” Id. at 19. Wong stated in his report that, at Detective

5 Chetcuti’s request, he searched the contents of the Dell computer only for “1. Suspect’s email

6 address. 2. Communication between the suspect and the victim(s). 3. Child pornography,

7 including photos of the victim.” Id. Although the prosecutor invited Mr. Vogt’s trial counsel “to

8 obtain a mirror image of the computer contents,” he declined. Id.

9 In addition, Melissa testified that Mr. Vogt was “usually” the only user of the Dell

10 computer, but the computer was not password protected and others could use it. Id. J.A. and K.A.

11 also testified that they did not see anyone using the computer other than Mr. Vogt. Id.

12 After the verdicts, Mr. Vogt’s new counsel “consulted with an expert in forensic computer

13 analysis, Samuel Plainfield, who reviewed a copy of the Dell computer hard drive.” Id. In

14 support of Mr. Vogt’s motion for new trial, Plainfield “found that the email address

15 kyle2002@yahoo.com did not appear at all on the Dell computer” and instead he found a different

16 email address for Mr. Vogt, “kvogt2002@yahoo.com.” Id. He testified that he did not see email

17 inboxes or outboxes (referring to standalone email programs such as Microsoft Outlook) for the

18 kvogt2002@yahoo.com address and he “did not recollect seeing any composed emails either to or

19 from an email address associated with ‘KVogt.’” Id. However, Plainfield admitted that he was

20 only looking for “something related to e-mails in 2009” so if he had found some emails outside of

21 2009, he “didn’t take much note of them.” Id. Moreover, Plainfield’s analysis of the computer

22 resulted in 428,741 “hits” (a particular text string in the hard drive) for the name “Kyle” and found

23 some folders on the desktop associated with the name Kyle, including a folder that appeared to

24 contain music files. Id. Plainfield also found evidence that other people used the computer in

25 2009—“evidence of purchases linked to J.A. and Keith, entries linked to Yahoo profiles for

26 various persons including Antonio, J.A. and Jo.A., hits for [] various names including Jo.A.,

27 Keith, and J.A., and documents such as Keith’s resume and a school paper written by Jo.A.” Id.

1 had been downloaded through a program called Limewire into a folder with no associated

2 username. Id. at 19–20.

3 In opposition to Mr. Vogt’s motion for new trial, Wong reviewed the Dell computer’s data

4 again, determined that he had mistakenly transcribed the email address in his report, and

5 confirmed that the correct email was kvogt2002@yahoo.com. Id. at 20. Wong testified that he

6 discovered 22 more files containing suspected child pornography in a folder entitled “Limewire

7 Saved.” Id. “Wong also found additional information indicating defendant’s use of the Dell

8 computer between April and August 2009.” Id. For example, one desktop folder entitled

9 “KYLE’S IPOD MUSIC! DO NOT DELETE!!!!!” contained music files from November 2008

10 and November 2009. Id. He testified that the “Limewire Saved” folder, which contained the

11 pornography videos, also contained “over 2,000 music files, some of which were duplicates of

12 files found in the desktop music folder bearing defendant’s name.” Id. In addition, Wong used

13 “forensic software and a web page editor to partially retrieve a web-based email inbox for an

14 address for ‘Kyle’ containing 105 emails,” including 7 emails from February 2009. Id. He “saw

15 other inboxes for defendant, 82 Craigslist entries from March 2009, and ‘flash cookies’ from

16 Facebook for ‘Kyle Vogt’ created in June and August 2009.” Id.

17 The trial court denied Mr. Vogt’s motion for a new trial in part because there was no

18 prejudice to defendant.” Id. at 20. The trial court held that “Plainfield did not exclude him as the

19 person most responsible for the child pornography, and Plainfield’s testimony would not have

20 overcome the ‘extremely credible’ and ‘compelling’ testimony of the prosecution witnesses,

21 specifically, Jo.A., J.A. and A.P.” Id. Likewise, the state appellate court rejected Mr. Vogt’s false

22 testimony claim for the reasons below. Ex. H at 26–27.

23 b. Analysis

24 The state appellate court’s rejection of Mr. Vogt’s false testimony claim was not contrary

25 to, or an unreasonable application of, clearly established federal law, or involved an unreasonable

26 determination of the facts considering the evidence presented in the state court proceeding. See 28

27 U.S.C. § 2554(d). The state appellate court reasonably found that the record did not support Mr.

1 “Wong’s reference to the kyle2002@yahoo.com email address was a mistake based on a

2 transcription error in his report discovered after trial during the new trial motion proceedings.” Id.

3 Although such a mistake “made [Wong’s] methodology vulnerable to criticism,” the court held

4 that it did not support the inference that Wong had fabricated the results or concealed information

5 in a materially misleading way. Id. Further, Mr. Vogt did not claim that the prosecutor knew or

6 should have known of this mistake before or during trial. Id.

7 The court acknowledged that Mr. Vogt’s defense computer forensic expert, Plainfield

8 reached a different conclusion than Wong, but such differences could be explained by differences

9 in methodology or forensic software. Id. For example, Wong testified that he saw many inboxes

10 for Mr. Vogt’s email address but did not do any statistical analysis to determine that it was used

11 the most. 9RT at 885. Instead, he determined that Mr. Vogt’s email was the most used address on

12 the computer based on his review of the html or web files on the computer using forensic

13 software. Id. at 884–85. In contrast, Plainfield testified that he did not see any standalone inboxes

14 or outboxes for Mr. Vogt’s email address, but his analysis focused only on 2009. 13RT at 1405.

15 Notably, Plainfield’s testimony was consistent with Wong’s findings, i.e., that “most” or a

16 “majority” of email activity found on the Dell computer was attributable to Mr. Vogt. Id.

17 Plainfield testified that he found 428,741 hits for “Kyle” compared to just 8,671 hits for “Jo.A.,”

18 the next most frequent term, and 1,142 hits for Keith. 13RT at 1374, 1376–77, 1405.

19 Therefore, the court reasonably concluded that Mr. Vogt had not shown that Wong’s

20 testimony was false. The Court DENIES Mr. Vogt’s false testimony claim.

21 3. Brady Error Claim

22 Finally, Mr. Vogt asserts a violation of his due process rights as articulated in Brady v.

23 Maryland, 373 U.S. 83 (1963), for the prosecutor’s failure to disclose its computer forensic expert

24 Wong’s technical notes documenting his analysis of the Dell computer. Pet. at 62–64. Mr. Vogt

25 argues that the technical notes showed that Wong was careless and that he was predisposed to

26 conclude that it was Mr. Vogt and not Keith Addison, Jo.A.’s father, who had accessed the child

27 pornography. Id. at 64. Had the notes been disclosed, Mr. Vogt asserts that it would have

1 Vogt] to the possession of child pornography, the victim’s testimony would have lacked

2 corroboration, and the conviction would not have occurred.” Id. at 62.

3 A Brady violation occurs when the prosecution fails to turn over favorable material

4 evidence to the defense. See Brady, 373 U.S. at 87 (“the suppression by the prosecution of

5 evidence favorable to an accused upon request violates due process where the evidence is material

6 either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”).

7 “There are three components of a true Brady violation: The evidence at issue must be favorable to

8 the accused, either because it is exculpatory, or because it is impeaching; that evidence must have

9 been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.”

10 Strickler v. Greene, 527 U.S. 263, 281–82 (1999). “[F]avorable evidence is material, and

11 constitutional error results from its suppression by the government, if there is a reasonable

12 probability that, had the evidence been disclosed to the defense, the result of the proceeding would

13 have been different.” Kyles, 514 U.S. at 433 (internal quotation marks omitted). By “a reasonable

14 probability,” the “question is not whether the defendant would more likely than not have received

15 a different verdict with the evidence, but whether in its absence he received a fair trial, understood

16 as a trial resulting in a verdict worthy of confidence.” Id. at 434. A “reasonable probability” is

17 shown “when the government’s evidentiary suppression undermines confidence in the outcome of

18 the trial.” Id. (internal quotation marks omitted).

19 a. Background

20 The relevant background is explained above. See supra Part IV.C.2.a. For the purposes of

21 this issue, the following information is also relevant. After the conclusion of testimony on the

22 new trial motion, Mr. Vogt moved to compel production of Wong’s technical notes. Ex. H at 19.

23 The prosecutor told the trial court that she had advised defense counsel that “she did not have any

24 such notes, she had not seen them, and she believed the notes could only be obtained by a request

25 to the FBI.” Id. But “Wong was able to produce the technical notes to the defense counsel the

26 following day.” Id.

27 The state appellate court concluded that “there was no constitutional or statutory error by

1 defense within the meaning of Brady . . . .” Ex. H at 24. On direct appeal, Mr. Vogt asserted that

2 the technical notes would have shown that Wong never found any trace of an email address for

3 “kyle2002@yahoo.com.” Ex. G at 24. Wong’s technical notes stated that “kvogt2002@yahoo

4 appears to the [sic] Kyle Vogt’s email address.” Id.; 4RT at 1046. The court acknowledged that

5 the “most significant aspect of the technical notes was that they revealed an error in Wong’s final

6 report as to the precise email address he attributed to defendant,” i.e., Wong’s typographical error

7 referring to “kyle2002@yahoo.com” instead of “kvogt2002@yahoo.com.” Id. at 25. But the

8 court concluded that “this transcription error did not alter the substance of Wong’s testimony that

9 he found many instances of an email address associated with defendant on the Dell computer.” Id.

10 Further, the court held that it was “immaterial that the technical notes showed Wong’s

11 failure to document any other email addresses appearing on the Dell computer” because Mr.

12 Vogt’s counsel “was already aware of the limited nature of Wong’s examination from his report”

13 and counsel “elicited Wong’s testimony that he saw other email addresses on the computer but did

14 not make note of them.” Id. The court also rejected Mr. Vogt’s argument that the notes showed

15 Chetcuti’s bias because of Chetcuti’s instruction to Wong—that “the computer was only accessed

16 by the suspect, so any suspicious images are relevant.” Id.; Docket No. 29-3 (“4CT”) at 1047.

17 The court held, “this remark simply reflected Chetcuti’s view of the scope of the search for child

18 pornography” and “did not stop Wong from examining the Dell to see if defendant’s email address

19 was the most frequently used, compared to others.” Ex. H at 25.

20 The court also concluded that although “the technical notes could have been used to make

21 Wong appear careless and less credible, this would not have likely changed the outcome of the

22 case” because “on redirect, Wong would have simply clarified the correct email address and then

23 taken the same position as before that the majority of email activity found on the Dell computer

24 was attributable to defendant.” Id. Moreover, it recognized that “[e]ven without the technical

25 notes, Wong’s examination was vulnerable to attack (and was, in fact, attacked) for not thoroughly

26 documenting the other users of the computer.” Id. The court summarily rejected Mr. Vogt’s

27 Brady error claim. Id.

1 b. Analysis

2 The state court’s rejection of Mr. Vogt’s Brady error claim was not contrary to, or an

3 unreasonable application of, clearly established federal law, or involved an unreasonable

4 determination of the facts considering the evidence presented in the state court proceeding. See 28

5 U.S.C. § 2554(d). In his petition, Mr. Vogt asserts that “Wong was careless and predisposed to

6 conclude that it was the defendant, and not Keith Addison, who accessed the child pornography.”

7 Pet. at 64. But the state court reasonably concluded that Wong’s error was not exculpatory

8 because it did not change the main point of his testimony—that most of the activity found on the

9 Dell computer was attributable to Mr. Vogt. Ex. H at 25. The court also reasonably held that even

10 if Wong’s notes had been produced and admitted, on redirect Wong would have clarified the

11 correct email and taken the same position. Id.

12 Mr. Vogt also asserts that the state appellate court “improperly minimizes the effect” of the

13 communication between Detective Chetcuti and Wong—i.e., Chetcuti’s instruction that the

14 computer “was only accessed by the suspect, so any suspicious images are relevant.” Pet. at 65.

15 He argues that this communication undermines the credibility of Wong’s findings because Mr.

16 Vogt was not in fact the only person to access the computer. Id. However, Wong never testified

17 that Mr. Vogt was the only person to access the computer; he admitted that he could not say who

18 controlled the computer. 9RT at 885–86. The notes were immaterial given the weaknesses in

19 Wong’s investigation. His final report states that Chetcuti had requested only a search of the

20 computer for Mr. Vogt’s email address, communication between Mr. Vogt and the victim(s), and

21 child pornography including photos of the victim. See Docket No. 29-2 (“3CT”) at 649. And

22 during cross-examination, Wong admitted that he was aware of the limited nature of his analysis,

23 e.g., he saw other email addresses that were not Mr. Vogt’s, but did not make note of them. See

24 9RT at 883–87. Thus, the state appellate court reasonably concluded that the communication

25 between Chetcuti and Wong in Wong’s technical notes was immaterial because it “simply

26 reflected Chetcuti’s view of the scope of the search for child pornography.” Ex. H at 25.

27 Finally, Mr. Vogt asserts that Wong’s notes show that his trial testimony “exaggerated the

1 enough to attribute the child pornography” to him or to exclude Keith Addison as a potential

2 suspect. Traverse at 23. He admits that Plainfield stated that an indexed search for an email

3 address with Keith’s name resulted in 112 hits in 29 files, whereas an indexed search for

4 “kvogt2002” resulted in 228 hits in 43 files. Ex. H at 26–27. However, Mr. Vogt asserts that

5 “[a]lthough that number is roughly twice the number of hits attributable to Keith Addison, the

6 numbers are in the same order of magnitude.” Traverse at 23. But as explained above, the

7 discrepancies between Plainfield and Wong’s findings do not necessarily mean that Wong

8 “exaggerated the number of hits” attributable to Mr. Vogt. See supra Part IV.C.2.b. Further, Mr.

9 Vogt’s own expert, Plainfield, testified that he found 428,741 hits for “Kyle” compared to 1,142

10 hits for Keith. 13RT at 1374, 1376–77, 1405. Therefore, the state court reasonably concluded that

11 evidence of the technical notes was neither exculpatory nor material or that the failure to disclose

12 the technical notes prejudiced Mr. Vogt.

13 The Court DENIES Mr. Vogt’s Brady claim.13

14 D. Ineffective Assistance of Counsel

15 Mr. Vogt argues a violation of his right to effective counsel on the grounds that his trial

16 counsel (1) failed to object to the CSAAS jury instruction and present contradictory CSAAS

17 expert testimony, (2) failed to properly object to child pornography evidence, (3) failed to consult

18 with and present the testimony of a defense forensic computer expert, and (4) failed to impeach

19 two witnesses and call one witness; and that (5) his appellate counsel failed to consistently

20 advance federal constitutional claims and cite relevant federal authorities.

21 The Sixth Amendment’s right to counsel guarantees not only assistance, but effective

22 assistance, of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark for

23 judging any claim of ineffectiveness is whether counsel’s conduct so undermined the proper

24

25

13 Mr. Vogt also argues that the prejudice from the Brady error was cumulative to the other errors

associated with the computer analyst and to the admissibility of child pornography evidence. But

26

because the Court rejects his other arguments, there is no such cumulative error. See Parts IV.C;

IV.D.2–3. And given the compelling evidence that was unrelated to the child pornography

27

evidence, see supra Part IV.A.2, any constitutional error from either the admission of the evidence,

1 functioning of the adversarial process that the trial cannot be relied upon as having produced a just

2 result. Id. To prevail on an ineffective-assistance-of-counsel claim, the petitioner must establish

3 two things. First, he must demonstrate that counsel’s performance was deficient and fell below an

4 “objective standard of reasonableness” under prevailing professional norms. Id. at 687–88. There

5 is a “strong presumption that counsel’s conduct falls within the wide range of reasonable

6 professional assistance.” Id. at 689. Second, he must establish that he was prejudiced by

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

8 unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A

9 reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

10 A “doubly deferential” judicial review is appropriate in analyzing

11 ineffective-assistance-of-counsel claims under § 2254. Cullen v. Pinholster, 563 U.S. 170, 202

12 (2011). The “question is not whether counsel’s actions were reasonable. The question is whether

13 there is any reasonable argument that counsel satisfied Strickland’s deferential standard.”

14 Harrington v. Richter, 562 U.S. 86, 105 (2011).

15 Here, the state appellate court’s rejection of Mr. Vogt’s ineffective-assistance–of-counsel

16 claims were not contrary to, or an unreasonable application of, clearly established federal law, or

17 involved an unreasonable determination of the facts considering the evidence presented in the state

18 court proceeding. See 28 U.S.C. § 2554(d).

19 1. Failure of Trial Counsel to Object to CSAAS Jury Instruction and Present

20 Contradictory CSAAS Expert Testimony

21 Mr. Vogt asserts that his trial counsel was ineffective for failure to object to the challenged

22 CSAAS instruction and failure to present contradictory CSAAS expert testimony. Pet. at 40–43.

23 But first, the parties dispute whether Mr. Vogt exhausted his claim about the failure to object to

24 CSAAS jury instruction. A federal court generally may not grant relief on an unexhausted

25 claim. See 28 U.S.C. § 2254(b)(1). Because Mr. Vogt has failed to assert this claim, the Court

26 cannot grant relief on this claim. See Ex. E (Vogt opening brief on direct appeal) at 115–19; Ex. G

27 (Vogt reply brief on direct appeal) at 44–48.

1 perfectly clear that the applicant does not raise even a colorable federal claim,” as is the case here.

2 Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). As explained above, there is no harm from

3 the CALCRIM No. 1193 instruction as it was properly given, and therefore, Mr. Vogt’s defense

4 counsel cannot be found deficient for not raising a meritless objection. See supra Part IV.B.2.b;

5 Martinez v. Ryan, 926 F.3d 1215, 1226 (9th Cir. June 18, 2019) (holding that the “[f]ailure to raise

6 a meritless argument does not constitute ineffective assistance.”). Moreover, Respondent points

7 out that defense counsel “could have made the reasonable tactical decision that CALCRIM No.

8 1193 should be given, because the instruction made clear that CSAAS evidence was ‘not evidence

9 that the defendant committed any of the crimes charged against him.’” Answer at 26. There is

10 also no demonstration of prejudice based on the failure to object. In order to prevail on a claim of

11 ineffective assistance of counsel, the petitioner must “affirmatively prove prejudice,” Strickland,

12 466 U.S. at 693, and the “likelihood of a different result must be substantial, not just conceivable.”

13 Richter, 52 U.S. at 112. Given the strong evidence against Mr. Vogt, see supra Part IV.A.2, there

14 is no reasonable likelihood that Mr. Vogt would have obtained a more favorable result at trial if

15 defense counsel had raised an objection.

16 Mr. Vogt also asserts that his trial counsel was ineffective for not presenting the testimony

17 of his own expert, Dr. Annette Ermshar, to contradict the testimony of Dr. Wolf. Pet. at 40–43.

18 During his motion for a new trial, Dr. Ermshar testified the following:

19 [Dr. Ermshar] opined that CSAAS is not a useful or relevant tool in

legal proceedings and can unduly influence jurors. Dr. Ermshar

20 stated that CSAAS is not generally accepted by the psychological

community as a diagnosis. She further testified that CSAAS

21 summarized one man’s observations from over 30 years ago based

on a very narrow population of confirmed, known victims of sexual

22 abuse, so the fact of abuse was not being tested, and it was written

for advocacy and clinical purposes, not legal proceedings. Dr.

23 Ermshar opined that using CSAAS in a legal proceeding unduly

influences the jury members into the perception that it has an

24 artificial scientific weight. Dr. Ermshar further opined that the

CSAAS factors are not predictive, not correlative, and can be seen in

25 children who have never been abused. Dr. Ermshar and another

psychologist, Dr. Diana Everstine, also provided information as to

26 why children can be unreliable reporters, as their memories can be

distorted by suggestive questioning, influence by authority figures,

27 interview bias, and childhood trauma.

1 The state appellate court’s application of Strickland in rejecting Mr. Vogt’s claim was

2 reasonable. Under the first Strickland factor, the state court concluded that Mr. Vogt failed to

3 show deficient performance under an objective standard of professional reasonableness. Ex. H at

4 32. It acknowledged that “the record sheds no light” on why Mr. Vogt’s trial counsel failed to

5 present an expert to rebut Dr. Wolf’s testimony. Id. “[U]nless counsel was asked for an

6 explanation and failed to provide one, or unless there simply could be no satisfactory explanation,

7 these cases are affirmed on appeal.” People v. Pope, 23 Cal.3d 412, 426 (1979), overruled in part

8 on other grounds in People v. Berryman, 6 Cal.4th 1047, 1081 n.10 (1993). Similarly, where the

9 record is silent, federal judges cannot “so casually second-guess the decisions of their state-court

10 colleagues or defense attorneys.” Burt v. Titlow, 571 U.S. 12, 15 (2013). “[T]he absence of

11 evidence cannot overcome the ‘strong presumption that counsel’s conduct [fell] within the wide

12 range of reasonable professional assistance.” Id. at 23. There are at least two conceivable reasons

13 as to why Mr. Vogt’s counsel did not call Dr. Ermshar. As the government theorizes, “[i]t is

14 possible that defense counsel did not want to focus the jury’s attention on the credibility of the

15 complaining witnesses, but to instead focus on what was missing from the prosecution’s case. It is

16 also possible that defense counsel made the reasonable determination that he could discredit

17 Wolf’s testimony through cross-examination so that calling his own expert was unnecessary.” Ex.

18 F (Respondent brief) at 92. These reasons undercut Mr. Vogt’s argument that his trial counsel was

19 deficient under the first Strickland factor. See Washington v. Shinn, 21 F.4th 1081, 1093 (9th Cir.

20 2021) (rejecting Strickland claim and noting that “[w]e have . . . recognized the wide latitude to be

21 given to counsel’s tactical choices”).

22 Mr. Vogt contends that because his trial counsel “made no effort to inform himself of what

23 an opposing expert would say, there was no basis for a tactical decision to not present the expert’s

24 testimony.” Pet. at 41. Mr. Vogt relies on Weeden v. Johnson, 854 F.3d 1063 (9th Cir. 2017), to

25 assert that this constitutes ineffective assistance of counsel but the case is distinguishable. In

26 Weeden, the defendant’s trial counsel explained that he had contemplated seeking a psychological

27 evaluation of the defendant but did not do so because “regardless of what the doctor would have

1 at 1068. The state appellate court decided that defendant’s trial counsel provided effective

2 representation because his choice to not investigate “was a sound ‘tactical decision’” due to fears

3 “that the results of an expert evaluation might undermine his trial strategy.” Id. at 1070. The

4 Ninth Circuit held that the state appellate court misapplied Strickland because the state appellate

5 court “did not identify any ‘reasonable decision’ made by [defendant’s] trial counsel that rendered

6 an investigation of psychological evidence ‘unnecessary.’” Id. The court explained that

7 defendant’s counsel “could not have reasonably concluded that obtaining a psychological

8 examination would conflict with his trial strategy without first knowing what such an examination

9 would reveal.” Id. The Ninth Circuit held that “[c]ounsel cannot justify a failure to investigate

10 simply by invoking strategy.” Id.

11 In this case, Mr. Vogt asserts that his trial counsel was ineffective because without

12 knowing what an opposing CSAAS expert would say, he could not have made a reasonable

13 tactical decision to not present opposing CSAAS expert testimony. Pet. at 41. This case,

14 however, is distinguishable because unlike in Weeden, there is no record on why Mr. Vogt’s trial

15 counsel failed to present expert testimony. Mr. Vogt’s ineffective-assistance-of-counsel expert,

16 Geoffrey Carr, testified that he saw no record of Mr. Vogt’s trial counsel having hired a CSAAS

17 expert or child psychology expert, which violated the standard of care “to solicit an opinion from

18 someone to see if that would be relevant and/or important testimony for the case” in a case where

19 the prosecution was to put on a CSAAS expert. 14RT at 1469. But Carr admitted that he had not

20 spoken to defense counsel, so he did not know what he had or had not done. 14RT at 1483, 1500.

21 Thus, this case is more akin to Gentry v. Sinclair, 705 F.3d 884 (9th Cir. 2013), where the Ninth

22 Circuit held that it was “not unreasonable for the Washington Supreme Court to conclude that trial

23 counsel’s performance was not deficient when [defendant] had no evidence to indicate why the

24 failure to present evidence of [his] psychological condition was unreasonable under the

25 circumstances.” Gentry, 705 F.3d at 899–900. Without any information as to why Mr. Vogt’s

26 trial counsel decided not to present expert testimony on this issue, and in light of the legitimate

27 tactical reasons that support his counsel’s decision, Mr. Vogt cannot show that his counsel’s

1 Further, the state appellate court reasonably concluded that Mr. Vogt was not prejudiced

2 under the second Strickland factor because the “main flaws in CSAAS highlighted by Dr. Ermshar

3 in the new trial motion . . . were directly elicited from Dr. Wolf on cross-examination.” Ex. H at

4 32; see Richter, 562 U.S. at 111 (“Strickland does not enact Newton’s third law for the

5 presentation of evidence, requiring for every prosecution expert an equal and opposite expert from

6 the defense. In many instances cross-examination will be sufficient to expose defects in an

7 expert’s presentation.”). Dr. Ermshar also testified that “the problem of suggestibility was ‘less of

8 a possibility’ where the report was spontaneously made by an abused child to a peer, without

9 influence from a parent, authority figure or interviewer,” as was the case here. Ex. H at 32. As a

10 result, the court reasonably concluded that Mr. Vogt “fails to show a reasonable probability of a

11 different result had his counsel presented an expert to testify consistent with the proposed

12 testimony of Dr. Ermshar.” Id. at 32–33.

13 The Court DENIES Mr. Vogt’s ineffective-assistance-of-counsel claim regarding the

14 failure of his trial counsel to object to the CSAAS jury instruction and present opposing CSAAS

15 expert testimony.

16 2. Failure of Trial Counsel to Object to Child Pornography Evidence

17 Mr. Vogt urges that his trial counsel was also ineffective in failing to properly object to the

18 evidence of child pornography videos on the Dell computer. Pet. at 43–44, 52. His argument

19 fails, however, because his trial counsel did object to the admission of the child pornography

20 evidence. Specifically, Mr. Vogt’s trial counsel argued that the child pornography evidence was

21 more prejudicial than probative, especially because the probative value was undermined by the

22 lack of evidence that Mr. Vogt had downloaded the child pornography videos. Docket No. 29-14

23 (“10RT”) at 1077–78. Mr. Vogt does not explain what further objection his trial counsel should

24 have made. Answer at 40. Furthermore, because the state appellate court reasonably concluded

25 that the child pornography evidence had been properly admitted, see supra Part IV.C.1.b, it

26 reasonably held that defense counsel had not been ineffective for failing to bring a meritless

27 objection. Ex. H at 15; see Martinez, 926 F.3d at 1226.

1 failure to object to the admission of child pornography evidence.

2 3. Failure of Trial Counsel to Consult With and Present the Testimony of a Defense

3 Forensic Computer Expert

4 Next, Mr. Vogt asserts that his trial counsel’s failure to engage a defense forensic computer

5 expert violated his right to counsel. Pet. at 53–61. At trial, one of the crucial questions was who

6 possessed and controlled the Dell computer that contained the child pornography videos, but

7 defense counsel failed to consult with or present the testimony of a defense forensic computer

8 expert. Pet. at 53. As a result, Mr. Vogt asserts that “the child pornography found on the Dell

9 laptop was linked to [him] by the unrebutted testimony of Terence Wong,” the prosecution’s

10 expert. Id. at 60. Mr. Vogt argues that his trial counsel also failed to impeach the oldest sister,

11 Melissa who had told investigators that the Dell computer belonged to Keith Addison, Jo.A.’s

12 father. Pet. at 53; see Docket No. 29-2 (“3 C.T.”) at 646 (an email exhibit from the deputy district

13 attorney to Vogt’s trial counsel, Steve Whitworth stating “Sgt. Chetcuti and I met with Melissa

14 this afternoon. In speaking with her about the computers in the house . . . Keith brought a Dell

15 desk top [sic] when he moved in. It was kept in the backroom and side room. The people with

16 access to that Dell were Kyle, [Jo.A], and Keith.”). According to Mr. Vogt, at the motion for new

17 trial hearing, his new counsel presented the testimony of a forensic computer expert, Samuel

18 Plainfield, that contradicted the testimony of Wong, on the question of whether Mr. Vogt had the

19 sole possession and control of the Dell computer. Pet. at 53. Plainfield testified that “at least one

20 other adult male had access to the computer and was a possible or likely candidate for having

21 created the child porn files found in the computer.” Id. Thus, in Mr. Vogt’s view, his trial

22 counsel’s failure to present opposing expert testimony and the impeachment evidence constituted a

23 denial of his right to effective assistance of counsel. Pet. at 54.

24 To the contrary, the state appellate court’s rejection of Mr. Vogt’s assertion and application

25 of Strickland under the second factor was reasonable. The state court did not conclude whether

26 Mr. Vogt failed to show deficient performance under the first Strickland factor. Ex. H at 21–22.

27 It acknowledged that “the record sheds no light on why defense counsel failed to present a forensic

1 deficient. Id. at 21. But although the court held that the Respondent’s argument was

2 plausible—that defense counsel strategically decided not to present a defense expert whose own

3 analysis might have led to the discovery of further evidence linking Mr. Vogt to the Dell

4 computer—it concluded that the Respondent had not explained why defense counsel failed to

5 obtain a copy of the Dell’s hard drive. Id. at 21–22. As a result, the court could not “assume

6 defense counsel had any kind of meaningful consultation with a forensic computer expert while

7 lacking sufficient information on the contents of the hard drive.” Id. at 22.

8 Instead of deciding whether defense counsel’s failure to engage a defense forensic expert

9 was deficient, the court relied on the second Strickland factor to reject Mr. Vogt’s assertion. Id.

10 The court held that Mr. Vogt had “not sufficiently demonstrated a reasonable probability that the

11 outcome would have been different absent the claimed error.” Id. It relied on the trial court’s

12 finding that Plainfield himself could not exclude Mr. Vogt “as a user of the Dell computer or as a

13 person who accessed the child pornography at the relevant time periods.” Id. The court also held

14 that a defense expert was unnecessary to show that Mr. Vogt was not the sole user of the Dell

15 computer. Id. Jo.A. admitted during cross-examination that she occasionally used the Dell

16 computer to download photographs and Wong testified that he saw other email addresses on the

17 computer and could not conclusively determine who controlled the computer. Id.

18 The state appellate court also recognized the risks of the defense expert’s testimony, e.g.,

19 that Plainfield found that his search yielded 428,741 hits for “Kyle” compared to the next most

20 frequent term, 8,671 hits for “Jo.A.,” which may have tended to suggest that Mr. Vogt was the

21 primary user of the Dell computer. Id. at 23. Defense’s focus on the Dell computer’s ownership

22 could have revealed the additional evidence found in Wong’s post-trial examination—e.g., the

23 pornography files found in the Limeware saved folder contained duplicates of music files found in

24 another folder called “KYLE’S IPOD MUSIC! DO NOT DELETE!!!!” as well as flash cookies

25 that showed that Mr. Vogt had used the computer on July 16, 2009, and August 4, 2009, which

26 was closer to the time of the child pornography downloads than previously discovered. Id.; 14RT

27 at 1559–61, 1565–68. The court also found that a defense expert could not have impeached the

1 the witnesses, including Melissa, testified so in conclusive terms. Id. at 23–24.

2 Accordingly, the state court reasonably concluded that Mr. Vogt had not demonstrated

3 prejudice under Strickland and therefore the Court DENIES his ineffective assistance claim on

4 these grounds.

5 4. Failure of Trial Counsel to Impeach Two Witnesses and Call One Witness

6 Mr. Vogt asserts that his trial counsel was also ineffective for (1) not using juvenile

7 records to impeach Jo.A.; (2) not calling his friend Amanda Hartman as a witness; and (3) not

8 impeaching Melissa with her prior statement to the police. Pet. at 68–75. The state appellate court

9 reasonably applied the Strickland standard when it rejected Mr. Vogt’s claims.

10 First, the state appellate court reasonably concluded that Mr. Vogt’s trial counsel’s failure

11 to use juvenile records to impeach Jo.A. did not constitute deficient performance and did not

12 prejudice Mr. Vogt. Mr. Vogt argues that the juvenile records would have led to information

13 suggesting that Keith, Jo.A.’s father, was a potential suspect and would have impeached Jo.A.’s

14 testimony. Pet. at 68; Traverse at 25. Before trial, Mr. Vogt’s trial counsel stated that he intended

15 to file the Welfare and Institutions Code section 827 motions to view records regarding various

16 juvenile witnesses in the case, but he never did. See Ex. H at 33. During his motion for a new

17 trial, Mr. Vogt attached the juvenile records as exhibits and his expert witness Carr testified that

18 his trial counsel provided ineffective assistance for failure to obtain the records for the purposes of

19 impeaching the credibility of Jo.A. and “suggesting Keith was another potential suspect.” Pet. at

20 73; Ex. H at 33.

21

22

23

24

25

26

27

1

2

3

4

5

6

7

8

9

10 The state appellate court reasonably rejected Mr. Vogt’s claim of ineffective assistance of

11 counsel because “the record sheds no light on why counsel did not obtain and present the juvenile

12 records at trial” it. Id.; see also Burt, 571 U.S. at 23. And “[e]ven assuming deficient

13 performance,” the court reasonably concluded that Mr. Vogt was not prejudiced because “it is

14 highly unlikely the trial court would have admitted the juvenile records into evidence” or “that it

15 would have allowed witnesses to be cross-examined on the events in the records,” given that the

16 trial court denied the motion for new trial. Id. at 33–34. To admit the evidence would have

17 “required a mini-trial on events having very little to do with this case in order to resolve the

18 conflicting statements contained therein.” Id. at 34. Moreover, the court reasonably held that Mr.

19 Vogt’s “arguments about the impact of the records is highly speculative.” Id. For example,

20 although the records may have undermined Jo.A.’s credibility, her testimony about Mr. Vogt’s

21 abuse was bolstered by the testimony of K.A. Id. The court also noted that Mr. Vogt made no

22 argument as to how the juvenile records would have undermined the credibility of the other

23 victims, J.A. and A.P. Id. For these reasons, the state court reasonably applied the Strickland

24 standard in denying Mr. Vogt’s claim.

25 Likewise, the state court reasonably denied Mr. Vogt’s ineffective assistance of counsel

26 claim on the basis that his trial counsel failed to call his friend who he lived with on occasion,

27 Amanda Hartman, as a witness. Mr. Vogt asserts that Hartman would have provided “at least a

1 South San Francisco on some of the dates when the child pornography videos were created at the

2 victim’s house. Pet. at 68, 74. Specifically, Hartman would have testified that Mr. Vogt lived

3 with her and her boyfriend for one week in Sacramento in late May or early June 2009, and that he

4 lived in Davis or Woodland in the summer of 2009.15 Ex. H at 34.

5 But the court reasonably concluded that Mr. Vogt failed to show that his trial counsel’s

6 conduct was deficient because the record, again, shed no light on why his counsel did not call

7 Hartman as a witness. Id. The court also acknowledged that “[c]ompetent defense counsel may

8 have determined that Hartman’s testimony was not a strong alibi defense” and that her testimony

9 may have “conflict[ed] with the testimony of defendant’s character witness, Sanderford, who

10 testified that defendant was living in the Bay Area in the summer of 2009.” Id. at 35. Sanderford,

11 who lived in Woodland, had dated Mr. Vogt for approximately six months, starting in either

12 spring or summer of 2009, and testified that he was living in the Bay Area when they were dating.

13 See 10RT at 1097. The court also reasonably held that Mr. Vogt was not prejudiced by the

14 absence of Hartman’s testimony because Hartman testified that she did not know whether Mr.

15 Vogt had a computer with him at the time he stayed with her and therefore she could not have

16 established that he did not have the Dell computer with him. Id.; see 14RT at 1543. Therefore,

17 Mr. Vogt’s claim on these grounds fails.

18 Third, the state court reasonably denied Mr. Vogt’s ineffective assistance of counsel claim

19 on the grounds that his trial counsel failed to cross-examine Melissa regarding her prior statements

20 to the police. During the direct appeal and in his petition, Mr. Vogt argues that Melissa’s

21 following statement undermines J.A.’s claims of being raped and assaulted by him on 10 different

22

23

15 Mr. Vogt mischaracterizes Hartman’s testimony when he argues that she testified that he had

“lived in Woodland and Davis from June through October 2009.” Pet. at 73 (citing 14RT at

24

1537). In actuality, Hartman was unable to testify that Mr. Vogt lived in Woodland or Davis

because no foundation could be established. See 14RT at 1537–39. Instead, Hartman testified

25

that Mr. Vogt stayed with her and her boyfriend in Woodland for one week in late May or early

June 2009, 14 RT at 1542, and she visited Mr. Vogt in Davis for one day in June 2009. 14RT at

26

1541. Although she testified on direct that she visited Mr. Vogt in Davis in July, August,

September, and October, on cross-examination, she could not recall whether she had seen him in

27

July or August. 14RT at 1539–42. She remembered seeing him in September but not whether it

1 occasions in Davis: When asked by Sergeant Chetcuti whether her sisters were afraid of being

2 alone with Mr. Vogt, Melissa replied that J.A. “was barely even up in Davis. She only visited like

3 a couple times and I can’t even—I wasn’t with Kyle the whole time I was there, so I can’t even—”

4 See Ex. H at 35; Traverse at 25–26. Mr. Vogt also argues that Melissa’s statements provide

5 innocent explanations for why intimate pictures of Jo.A. were found on Mr. Vogt’s phone and

6 Dell computer. Id. When asked about the photographs of Jo.A. found on Mr. Vogt’s phone,

7 Melissa stated, “you would find the most pictures of [Jo.A.] on any of our stuff, because she loves

8 to take pictures” and “they all send pictures of each other. . . . Because they would send—

9 sometimes they’d send pictures of him and it would go to me and stuff like this.” Id. at 36. When

10 asked if she thought it was odd that Jo.A. would be sending photographs of herself in her shorts

11 and then deleting them, Melissa responded, “I think [defendant and Jo.A.] shared some phones.

12 And [Jo.A.], uh, [Jo.A.]’s been known to send photos to her boyfriend.” Id.

13 The state court reasonably concluded that Mr. Vogt failed to show that his trial counsel acted

14 deficiently, even though the record contained no explanation for the counsel’s decision not to

15 cross-examine Melissa regarding her statements about J.A. rarely visiting Davis. Id. at 36. As the

16 court noted, Mr. Vogt’s trial counsel may have made a tactical decision not to cross-examine

17 Melissa about these statements after determining that she was a “sympathetic witness” such that

18 “it would not have been a wise trial strategy to attack her testimony with statements she made to

19 the police while she was still in a state of shock from learning about the allegations.” Id. The

20 court also noted that counsel could not have impeached Melissa about her statements about the

21 photographs because she was never questioned about the photographs during trial. Id. And even

22 if the court assumed the counsel’s performance was deficient, the court reasonably concluded that

23 there was no reasonable probability of a different outcome—“Melissa’s statement to Chetcuti was

24 made early in the investigation before she had time to refresh her recollection, and the statement

25 was both vague and facially incomplete.” Id. at 37. J.A. and Luisa had also corroborated

26 Melissa’s trial testimony about the frequency of J.A.’s visits. Id.

27 Accordingly, the state court reasonably applied the Strickland standard in rejecting these

1 assistance of counsel claim on these grounds.

2 5. Failure of Appellate Counsel to Consistently Advance Federal Constitutional

3 Claims and Cite Relevant Federal Authorities

4 Finally, Mr. Vogt asserts that he was denied effective assistance of appellate counsel “to

5 the extent that his federal constitutional claims were not consistently advanced or repeated at each

6 stage of the state appellate process, or relevant federal authorities were not cited to the state

7 courts.” Pet. at 75. As a result, he argues that all his federal habeas claims should be reviewed

8 “despite any apparent procedural default or failure of exhaustion.” Id. at 76. However, Mr.

9 Vogt’s appellate counsel’s alleged failure did not prejudice him because none of Mr. Vogt’s

10 claims has merit. Answer at 66; see Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001)

11 (“Appellate counsel’s failure to raise issues on direct appeal does not constitute ineffective

12 assistance when appeal would not have provided grounds for reversal.”). Therefore, the Court

13 DENIES this claim as well.

14 V. CONCLUSION

15 For the reasons above, the petition for writ of habeas corpus is DENIED on the merits.

16 This order disposes of Docket No. 1. The Clerk of Court is instructed to enter Judgment

17 and close the case.

18

19 IT IS SO ORDERED.

20

21 Dated: May 23, 2022

22

23 ______________________________________

EDWARD M. CHEN

24 United States District Judge

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