“It is not enough that a federal habeas court, 3 in its independent review of the legal question, is left with a firm conviction that the state court 4 was erroneous”
How later courts described this case
- “It is not enough that a federal habeas court, 3 in its independent review of the legal question, is left with a firm conviction that the state court 4 was erroneous”
- “There 26 is ... no clearly established federal law that admitting prejudicial evidence violates due process.”
- trial court’s decision to admit expert testimony “was not contrary to or an 3 unreasonable application of Supreme Court precedent”
- “We consider whether it would have 8 been reasonable to reject [petitioner’s] allegation of deficient performance for any of the reasons 9 expressed by the court of appeal.” (citations and alterations omitted)
Written by the judges who cited it.
The opinion
1
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 JAIRO VELASQUEZ MAIRENA, No. 2:23-cv-00554-DAD-CSK
12 Petitioner,
13 v. FINDINGS AND RECOMMENDATIONS
14 GENA JONES,
15 Respondent.
16
17 Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of
18 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2020 conviction for sexual
19 intercourse with a child 10 years or younger (Cal. Penal Code § 288.7(a)) and two counts of
20 committing lewd acts upon a child under the age of 14 (Cal. Penal Code § 288(a)). Petitioner is
21 serving a sentence of 31 years to life. Petitioner raises the following claims in his petition:
22 (1) improper admission of expert opinion of pediatrician; (2) improper admission of Child Sexual
23 Abuse Accommodation Syndrome (CSAAS) testimony; (3) prosecutorial misconduct in closing
24 argument; (4) ineffective assistance of counsel for failing to object to prosecutor’s argument; and
25 (5) erroneous jury instruction. After careful review of the record, this Court recommends that the
26 petition be denied.
27 / / /
28
1 I. PROCEDURAL BACKGROUND
2 A. State Court History
3 On October 13, 2020, after a trial in the San Joaquin County Superior Court, petitioner
4 was convicted of one count of sexual intercourse with a child 10 years or younger and two counts
5 of committing lewd acts upon a child under the age of 14. People v. Mairena, Super. Ct. No.
6 LOD-CR-FE-2018-14043. (ECF No. 9-1 at 485-488.) Petitioner was sentenced on February 1,
7 2021, to a state prison term of 31 years to life. (Id.)
8 Petitioner appealed his conviction to the California Court of Appeal. (ECF No. 9-3.)
9 Petitioner raised the following issues in his opening brief on appeal: 1) improper admission of
10 CSAAS testimony; 2) erroneous jury instruction; 3) improper admission of expert opinion of
11 pediatrician; 4) prosecutorial misconduct in closing argument; and 5) ineffective assistance of
12 counsel for failing to object to prosecutor’s argument. (Id.) On September 22, 2022, the
13 California Court of Appeal affirmed the judgment in a reasoned opinion. (ECF No. 9-6.)
14 Petitioner filed a petition for review in the California Supreme Court, raising the same
15 claims as in his opening brief. (ECF No. 9-7.) On November 30, 2022, the California Supreme
16 Court denied the petition for review without comment or citation. (Id.)
17 B. The Federal Petition
18 The federal petition was filed on March 23, 2023. (ECF No. 1.) On May 30, 2023,
19 respondent filed an answer. (ECF No. 10.) Petitioner did not file a reply.
20 II. FACTS
21 In its unpublished memorandum and opinion affirming petitioner’s judgment of
22 conviction on appeal, the California Court of Appeal provided the following factual summary1:
23 Defendant was in a relationship with the victim’s (D.) aunt Candy.
Defendant and Candy had several children together and lived in the
24 same house. D., who referred to defendant as her uncle, often spent
time at defendant’s house while her mother worked. When D. was
25 three or four years old, defendant began to sexually abuse her. D.
testified that she was 12 years old at the time of trial.
26
27 1 The facts recited by the state appellate court are presumed to be correct where, as here, the
petitioner has not rebutted the facts with clear and convincing evidence. 28 U.S.C. § 2254(e)(1);
28 Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).
1 FN 2. As defendant notes, D. also testified as to her birthday,
which, if correct, would have made her 13 years old at the
2 time of trial. This discrepancy is irrelevant for the issues on
appeal.
3
The first incident, which was charged in count 1, occurred when D.
4 was three or four years old.
5 FN 3. Count 4 was charged as a different offense based on
the same conduct as that charged in count 1.
6
Defendant laid D. down on an air mattress and got on top of her. He
7 kissed her and rubbed her chest and vagina. He also licked her
vagina. Defendant then inserted his penis inside D.’s vagina while
8 continuing to kiss her. He told D. that he wanted to put his penis all
the way inside her vagina, but she cried because of the pain.
9 Defendant’s penis became wet, and he told D. that if she told her dad
what happened, her parents and she could go to jail, or her parents
10 would hit her. D. tried to resist or push him away. D’s cousin J.
knocked on the door, but she could not get in because it was locked.
11 Eventually D. was able to leave with J.
12 In another incident, charged in count 3, D. was playing a game called
“zombies”—similar to hide and seek—with her cousins. While D.
13 hid during the game, defendant touched her vagina over her clothes
and her chest under her clothes. D. testified that J. came in the room
14 and saw defendant touching her; J. asked D. why defendant was
touching her, and they went outside.
15
D. revealed the abuse to a teacher in fifth grade, and child protective
16 services (CPS) and the police were both notified. D. was interviewed
by a CPS social worker and underwent a recorded forensic interview
17 at the Children’s Advocacy Center. A video of that interview was
played for the jury, and a transcript of the interview distributed to the
18 jury appears in the record on appeal. Dr. Mamta Jain, a pediatrician
at the San Joaquin General Hospital and the Children’s Advocacy
19 Center, performed a nonacute physical examination on D. and made
no physical findings.
20
In her forensic interview and at trial, D. testified to multiple other
21 instances of abuse. She also asserted that she saw defendant molest
J. on multiple occasions.
22
J. testified that D. told her she had gone into a room with defendant
23 and came out crying, but D. asked J. not to tell anyone because she
did not want to get into trouble. D. did not tell J. what had happened,
24 but she mentioned that defendant had touched her. D. was scared to
tell J.
25
At a different time, during a game of “zombies,” J. saw both of
26 defendant’s hands “slide down” to D.’s chest, but she clarified that
his hands did not go down below her stomach. She recalled that D.’s
27 facial expression indicated that she was “shocked about it.” J.
testified as to another instance in which defendant, defendant’s
28 daughter, and D. went in a room and defendant closed the door. After
1 about 30 minutes, D. came out crying. D. approached J. and asked
her if she wanted to leave and they went to a nearby family member’s
2 house. On the way, J. asked D. what happened, but D. did not want
to say.
3
J. underwent an interview regarding D.’s allegations. J. testified that
4 she remembered the interview, and related some of the details of the
interview on direct and cross-examination, but the interview was not
5 played for the jury.
6 On cross-examination, J. agreed with defense counsel that defendant
had never touched her inappropriately.
7
A jury found defendant guilty of sexual intercourse with a child 10
8 years of age or younger (§ 288.7, subd. (a); count 1) and two counts
of committing lewd or lascivious acts upon a child under the age of
9 14 (§ 288, subd. (a); counts 3 & 4). The jury could not reach a verdict
as to count 2, a second count charging a violation of section 288.7,
10 subdivision (a), and that count was dismissed. The trial court
sentenced defendant to an aggregate term of 31 years to life in prison.
11
People v. Mairena, Super. Ct. No. LOD-CR-FE-2018-14043 (Sept. 22, 2022) (ECF No. 9-6).
12
III. STANDARDS FOR A WRIT OF HABEAS CORPUS UNDER ANTITERRORISM
13
AND EFFECTIVE DEATH PENALTH ACT (AEDPA)
14
An application for a writ of habeas corpus by a person in custody under a judgment of a
15
state court can be granted only for violations of the Constitution or laws or treaties of the United
16
States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation
17
or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502
18
U.S. 62, 67-68 (1991).
19
28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus
20
relief:
21
An application for a writ of habeas corpus on behalf of a person in
22 custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
23 court proceedings unless the adjudication of the claim -
24 (1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal
25 law, as determined by the Supreme Court of the United
States; or
26
(2) resulted in a decision that was based on an unreasonable
27 determination of the facts in light of the evidence
presented in the State court proceeding.
28
1 28 U.S.C. § 2254(d).
2 For purposes of applying § 2254(d)(1), “clearly established Federal law” consists of
3 holdings of the Supreme Court at the time of the last reasoned state court decision. Thompson v.
4 Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 565 U.S. 34, 39-40
5 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S.
6 362, 412 (2000)). Circuit court precedent “may be persuasive in determining what law is clearly
7 established and whether a state court applied that law unreasonably.” Stanley, 633 F.3d at 859
8 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not
9 be “used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific
10 legal rule that th[e] [Supreme] Court has not announced.” Marshall v. Rodgers, 569 U.S. 58, 64
11 (2013) (citing Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (per curiam)). Nor may it be used to
12 “determine whether a particular rule of law is so widely accepted among the Federal Circuits that
13 it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id. Further, where courts
14 of appeals have diverged in their treatment of an issue, there is no “clearly established federal
15 law” governing that issue. See Carey v. Musladin, 549 U.S. 70, 77 (2006).
16 A state court decision is “contrary to” clearly established federal law if it applies a rule
17 contradicting a holding of the Supreme Court or reaches a result different from Supreme Court
18 precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003).
19 Under the “unreasonable application” clause of § 2254(d)(1), “a federal habeas court may grant
20 the writ if the state court identifies the correct governing legal principle from [the Supreme
21 Court’s] decisions, but unreasonably applies that principle to the facts of the prisoner’s case.”2
22 Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (quoting Williams, 529 U.S. at 413); see also Chia v.
23 Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, “a federal habeas court may not issue
24 the writ simply because that court concludes in its independent judgment that the relevant state-
25 court decision applied clearly established federal law erroneously or incorrectly. Rather, that
26
2 Under § 2254(d)(2), a state court decision based on a factual determination is not to be
27 overturned on factual grounds unless it is “objectively unreasonable in light of the evidence
presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford,
28 384 F.3d 628, 638 (9th Cir. 2004)).
1 application must also be unreasonable.” Williams, 529 U.S. at 411; see also Schriro v. Landrigan,
2 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (“It is not enough that a federal habeas court,
3 in its independent review of the legal question, is left with a firm conviction that the state court
4 was erroneous”) (internal quotations and citation omitted). “A state court’s determination that a
5 claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on
6 the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)
7 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for
8 obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s
9 ruling on the claim being presented in federal court was so lacking in justification that there was
10 an error well understood and comprehended in existing law beyond any possibility for fair-
11 minded disagreement.” Id. at 103.
12 If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing
13 court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford, 527
14 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en
15 banc) (“[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1)
16 error and that, if there is such error, we must decide the habeas petition by considering de novo
17 the constitutional issues raised.”).
18 The court looks to the last reasoned state court decision as the basis for the state court
19 judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If
20 the last reasoned state court decision adopts or substantially incorporates the reasoning from a
21 previous state court decision, this court may consider both decisions to ascertain the reasoning of
22 the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a
23 federal claim has been presented to a state court and the state court has denied relief, it may be
24 presumed that the state court adjudicated the claim on the merits in the absence of any indication
25 or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption may
26 be overcome by a showing “there is reason to think some other explanation for the state court’s
27 decision is more likely.” Id. at 99-100. Similarly, when a state court decision on petitioner’s
28 claims rejects some claims but does not expressly address a federal claim, a federal habeas court
1 must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v.
2 Williams, 568 U.S. 289, 298-301 (2013) (citing Richter, 562 U.S. at 98). If a state court fails to
3 adjudicate a component of the petitioner’s federal claim, the component is reviewed de novo in
4 federal court. See, e.g., Wiggins v. Smith, 539 U.S. 510, 534 (2003).
5 Where the state court reaches a decision on the merits but provides no reasoning to
6 support its conclusion, a federal habeas court independently reviews the record to determine
7 whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.
8 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo
9 review of the constitutional issue, but rather, the only method by which we can determine whether
10 a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no
11 reasoned decision is available, the habeas petitioner has the burden of “showing there was no
12 reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98.
13 A summary denial is presumed to be a denial on the merits of the petitioner’s claims.
14 Stancle v. Clay, 692 F.3d 948, 957 & n.3 (9th Cir. 2012). While the federal court cannot analyze
15 just what the state court did when it issued a summary denial, the federal court reviews the state
16 court record to “determine what arguments or theories . . . could have supported the state court’s
17 decision; and then it must ask whether it is possible fairminded jurists could disagree that those
18 arguments or theories are inconsistent with the holding in a prior decision of [the Supreme]
19 Court.” Richter, 562 U.S. at 101. It remains the petitioner’s burden to demonstrate that ‘there was
20 no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709 F.3d 925, 939 (9th
21 Cir. 2013) (quoting Richter, 562 U.S. at 98).
22 When it is clear, however, that a state court has not reached the merits of a petitioner’s
23 claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal
24 habeas court must review the claim de novo. Stanley, 633 F.3d at 860 (citing Reynoso v.
25 Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006)).
26 IV. DISCUSSION
27 A. Claim One: Expert Testimony on Delayed Disclosure
28 Petitioner claims that the trial court erroneously admitted the expert opinion of a
1 pediatrician, Dr. Mamta Jain, as to why many sexually abused children delay disclosing the
2 abuse.
3 At trial, the prosecutor asked Dr. Jain: “Based on your training and experience working as
4 a pediatrician, and specifically for the treatment of abused children, . . . what’s your
5 understanding of the reasons for delayed disclosures?” (ECF No. 9-2 at 221.)
6 After petitioner’s attorney objected and was overruled, Dr. Jain answered: “Lots of
7 times[,] it’s they’re groomed.” (Id.)
8 Petitioner’s attorney objected again, arguing: “She’s not a psychologist.” (Id.)
9 The court responded that Dr. Jain was “the chair of pediatrics and the head of the Child
10 Advocacy Center.” (Id.)
11 On habeas review, petitioner argues that the admission of Dr. Jain’s statement about
12 “grooming” violates his rights to a fair trial and due process “because the prosecution failed to
13 present any foundation that Dr. Jain, an expert pediatrician, was qualified to render such an
14 opinion” in violation of state evidentiary rules. (ECF No. 1 at 21.)
15 In the last reasoned state court decision addressing this claim, the California Court of
16 Appeal denied this claim for the following reasons:
17 Defendant contends the trial court erred by admitting a pediatrician’s
expert opinion on the reasons for an abuse victim’s delayed
18 disclosure. He contends the expert’s opinion violated his right to a
fair trial and to due process because the prosecution failed to present
19 sufficient foundation that the expert was qualified to render such an
opinion. We disagree.
20
A. Background
21
The People called Dr. Mamta Jain, a pediatrician with 20 years of
22 experience, chair of the department of pediatrics at San Joaquin
General Hospital, and a medical doctor for child advocacy at the
23 Mary Graham Children’s Shelter in French Camp. Dr. Jain provided
medical care to children at the Children’s Shelter, and performed
24 physical examinations of children suspected of having been
physically or sexually abused. She typically performed “nonacute”
25 medical exams of abuse victims who reported the sexual abuse at
least 72 hours after it occurred; the exams were intended to check for
26 trauma or scarring associated with chronic abuse, sexually
transmitted infections, and pregnancy. The exams also included a
27 behavioral assessment intended to connect the child to appropriate
resources related to mental health.
28
1 In response to the prosecutor’s question as to the purpose of the
nonacute physical exam, Dr. Jain volunteered that most of the
2 victims she treated disclose more than 72 hours after the abuse
because they are pregnant or scared. Defendant objected to that
3 testimony as outside the scope of the witness’s expertise. The
prosecutor offered to establish additional foundation, and asked:
4 “Based on your training and expertise working as a pediatrician, and
specifically for the treatment of abused children, what are your
5 what’s your understanding of the reasons for delayed disclosures?”
After the court overruled defendant’s objection on the basis of a lack
6 of foundation, Dr. Jain responded: “Lot of times it’s they’re
groomed.” Defendant objected on the basis that Dr. Jain is not a
7 psychologist, but the court stated, “she’s the chair of pediatrics and
the head of the Child Advocacy Center.” Without ruling on the
8 objection, the court invited the prosecutor to “lay a little more
foundation.” Instead, the prosecutor shifted the focus of her
9 questioning back to Dr. Jain’s physical examinations. Before she did
so, the prosecutor asked for clarification as to what part of the
10 testimony was subject to a request to strike; the court replied that it
was not striking the testimony.
11
Dr. Jain later testified that her behavioral health assessment includes
12 asking the child age-appropriate questions about his or her medical
history, hobbies, and school, but that, by the time she interviews the
13 child, the child has already undergone a forensic interview and she is
aware of the content of that interview. If the child was “opening up,”
14 she would confirm some of the disclosures made during the forensic
interview, and ask clarifying questions if necessary.
15
B. Legal Background
16
California law permits a person with special knowledge, skill,
17 experience, training, or education in a particular field to qualify as an
expert witness and to give testimony in the form of an opinion. (Evid.
18 Code, §§ 720, 801; People v. Gardeley (1996) 14 Cal.4th 605, 617,
disapproved of on other grounds in People v. Sanchez (2016) 63
19 Cal.4th 665, 686, fn. 13.) An expert’s opinion must be “[r]elated to a
subject that is sufficiently beyond common experience that the
20 opinion of an expert would assist the trier of fact.” (Evid. Code,
§ 801, subd. (a).) “Against the objection of a party, such special
21 knowledge, skill, experience, training, or education must be shown
before the witness may testify as an expert.” (Id., § 720, subd. (a).)
22 “In considering whether a person qualifies as an expert, the field of
expertise must be carefully distinguished and limited.” (People v.
23 King (1968) 266 Cal.App.2d 437, 445.)
24 “The trial court has broad discretion in deciding whether to admit or
exclude expert testimony [citation], and its decision as to whether
25 expert testimony meets the standard for admissibility is subject to
review for abuse of discretion.” (People v. McDowell (2012) 54
26 Cal.4th 395, 426.)
27 C. Analysis
28 We find no abuse of discretion in the trial court’s decision to not
1 strike Dr. Jain’s testimony that child sexual abuse victims often delay
disclosure because they are groomed. Dr. Jain was the chair of a
2 pediatrics department and specialized in examining children who had
suffered sexual abuse but delayed reporting it. She testified that part
3 of her exam includes an assessment of the child’s mental health in
order to connect the child to appropriate mental health treatment
4 resources. Dr. Jain’s testimony was specifically based on and limited
to her observations, training, and experience in examining sexual
5 abuse victims. Further, as we discussed ante, the reasons for a child
sexual abuse victim’s delayed reporting is sufficiently beyond the
6 common experience of the jury to require explanation by an expert
witness.
7
Additionally, any error in admitting Dr. Jain’s testimony was clearly
8 harmless. Erroneous admission of expert testimony warrants reversal
of a judgment only if it is reasonably probable that a result more
9 favorable to defendant would have been reached absent the error.
(Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b); People v.
10 Pearson (2013) 56 Cal.4th 393, 446; People v. Watson (1956) 46
Cal.2d 818, 836.) Dr. Jain offered a very brief comment that many
11 child sexual abuse victims delay reporting because they are groomed,
but she did not testify that D. had been groomed or offer any other
12 reason why D. delayed disclosure. Instead, Dr. Jain’s testimony
primarily concerned the physical examination she conducted on D.
13 Moreover, after Dr. Jain’s testimony, Dr. Urquiza testified
extensively about the reasons why sexual abuse victims delay
14 disclosing their abuse; therefore, it is extremely unlikely that Dr.
Jain’s testimony had any effect on the outcome of the trial.
15
16 (ECF No. 9-6 at 8-10.)
17 The admission of evidence does not provide a basis for habeas relief unless it rendered the
18 trial fundamentally unfair in violation of due process. Estelle, 502 U.S. at 72. “Under AEDPA,
19 even clearly erroneous admissions of evidence that render a trial fundamentally unfair may not
20 permit the grant of federal habeas relief if not forbidden by ‘clearly established Federal law,’ as
21 laid out by the Supreme Court.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009)
22 (quoting 28 U.S.C. § 2254(d)).
23 The Supreme Court “has not yet made a clear ruling that admission of irrelevant or overtly
24 prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ.”
25 Holley, 568 F3d. at 1101; see also Greel v. Martel, 472 F. App’x 503, 504 (9th Cir. 2012) (“There
26 is ... no clearly established federal law that admitting prejudicial evidence violates due process.”).
27 Moreover, the Supreme Court “has never held that the admission of expert testimony on an
28 ultimate issue to be resolved by the trier of fact violates the Due Process Clause.” Duvardo v.
1 Giurbino, 410 Fed. Appx. 69, *1 (9th Cir. 2011) (citing Moses v. Payne, 555 F.3d 742, 761-62
2 (9th Cir. 2009) (trial court’s decision to admit expert testimony “was not contrary to or an
3 unreasonable application of Supreme Court precedent”)).
4 Here, petitioner argues that the trial court admitted Dr. Jain’s statement about “grooming”
5 without sufficient foundation, in violation of the California Evidence Code. However, the last
6 reasoned state court opinion found that no state law violation occurred, and “a state court’s
7 interpretation of state law . . . binds a federal court sitting in habeas.” Bradshaw v. Richey, 546
8 U.S. 74, 76 (2005). Moreover, any error of state law would be “largely beside the point,” as that
9 is not the standard for federal habeas relief. Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th
10 Cir. 1991).
11 Nor was the state court’s decision contrary to, or an unreasonable application of, clearly
12 established Supreme Court authority. Under the cases set forth above, there is no colorable
13 argument that the admission of Dr. Jain’s statement violated “clearly established federal law” by
14 the Supreme Court. Accordingly, petitioner’s claim challenging admission of Dr. Jain’s statement
15 as unconstitutional should be denied.
16 B. Claim Two: CSAAS Testimony
17 Petitioner argues that the trial court erred in allowing a pediatric psychologist, Dr.
18 Anthony Urquiza, to testify about Child Sexual Abuse Accommodation Syndrome (CSAAS) as
19 part of the prosecutor’s case. (See ECF No. 9-2 at 326-346.) Petitioner asserts that the CSAAS
20 evidence was so “irrelevant and prejudicial” that it rendered his trial fundamentally unfair. (ECF
21 No. 1 at 22.)
22 After describing his qualifications, Dr. Urquiza testified about the five elements of
23 CSAAS: secrecy, helplessness, “entrapment and accommodation,” “delayed and unconvincing
24 disclosure,” and recantation of the allegation. (Id. at 327.) He testified that he had no factual
25 knowledge of the instant case and had not reviewed any materials from it, but was testifying
26 about child abuse victims in general. (Id. at 325-26.) The trial judge advised the jury that Dr.
27 Urquiza’s testimony was “offered and may be considered by you only for the purpose of
28 understanding and explaining the behavior of the alleged victim in this case. And not as proof that
1 sexual abuse occurred as to the alleged victim [D.].” (Id. at 317.) The jury was also given a
2 written jury instruction, CALCRIM No. 1193, stating as follows:
3 You have heard testimony from Dr. Urquiza regarding [CSAAS].
4 Dr. Urquiza’s testimony about [CSAAS] is not evidence that the
defendant committed any of the crimes charged against him.
5
You may consider this evidence only in deciding whether [D.’s]
6 conduct was not inconsistent with the conduct of someone who has
been molested, and in evaluating the believability of her testimony.
7
8 (ECF No. 9-1 at 318.)
9 In the last reasoned state court decision addressing this claim, the California Court of
10 Appeal denied this claim for the following reasons:
11 Defendant contends the trial court prejudicially erred by admitting
expert testimony on CSAAS, which explains “common stress
12 reactions of children who have been sexually molested ..., which also
may include the child’s failure to report, or delay in reporting, the
13 abuse.” (People v. McAlpin (1991) 53 Cal.3d 1289, 1300
(McAlpin).) We disagree.
14
A. Procedural Background
15
Before trial, the People moved to allow psychologist Anthony
16 Urquiza, Ph.D., to testify regarding CSAAS. The defense objected
on due process grounds, and later on foundation grounds. The
17 defense also requested a limiting instruction. The trial court admitted
the evidence for limited purposes and agreed to provide a pinpoint
18 instruction.
19 Dr. Urquiza was a psychologist, a professor in the department of
pediatrics at University of California Davis Medical Center, and the
20 director of a child abuse treatment center. He had been a therapist for
child sexual abuse victims for nearly 30 years, trained medical
21 students and psychiatry fellows on how to conduct therapy with child
sexual abuse victims, stayed current on literature on child sexual
22 abuse, and published his own clinical writing and research on the
subject. He had testified an estimated “easily, 600, 750 times” as an
23 expert on child sexual abuse. Dr. Urquiza did not review any of the
materials from this case or interview D.
24
Dr. Urquiza testified that CSAAS is not a diagnosis, but rather is used
25 to educate people about the experience of being sexually abused in
order to explain the potentially counterintuitive behaviors of a child
26 who has been sexually abused and to dispel misperceptions,
misunderstandings, or myths that therapists may have about child
27 victims of sexual abuse. The syndrome involves five concepts:
secrecy, helplessness, entrapment and accommodation, delayed and
28
1 unconvincing disclosure, and recantation or retraction of the
allegation.
2
Dr. Urquiza testified that a very small percentage of child sexual
3 abuse victims disclose the abuse soon after the abuse occurs. Rather,
most victims do not disclose the abuse until months or years after the
4 abuse. Dr. Urquiza referenced a study that found approximately
three-quarters of child sexual abuse victims do not disclose the abuse
5 less than a year after the first instance. Most child victims do not
disclose the abuse right away because they are afraid of
6 consequences or of not being believed, or because they are ashamed.
7 B. Expert Testimony Regarding CSAAS
8 FN 4. The Attorney General contends defendant failed to
object to the evidence on several of the bases he raises on
9 appeal. We do not address forfeiture because we reach the
merits of defendant’s claims.
10
Numerous courts have found expert testimony concerning CSAAS
11 properly admitted in sexual abuse cases. (See, e.g., In re S.C. (2006)
138 Cal.App.4th 396, 418 [collecting cases]; see also McAlpin,
12 supra, 53 Cal.3d at pp. 1300-1301.) Our Supreme Court has
explained that “expert testimony on the common reactions of child
13 molestation victims is not admissible to prove that the complaining
witness has in fact been sexually abused; it is admissible to
14 rehabilitate such witness’s credibility when the defendant suggests
that the child’s conduct after the incident — e.g., a delay in reporting
15 — is inconsistent with his or her testimony claiming molestation.
[Citations.] ‘Such expert testimony is needed to disabuse jurors of
16 commonly held misconceptions about child sexual abuse, and to
explain the emotional antecedents of abused children’s seemingly
17 self-impeaching behavior.’ ” (McAlpin, at pp. 1300-1301, fn.
omitted; see People v. Patino (1994) 26 Cal.App.4th 1737, 1744-
18 1745 [where the victim’s credibility is placed at issue due to
seemingly counterintuitive behavior, including a delay in reporting
19 molestation, CSAAS evidence is pertinent and admissible to
rehabilitate the victim’s credibility by showing that his or her
20 reactions are not inconsistent with abuse].)
21 Here, D.’s credibility was the central issue at trial. Defense counsel
stated his position succinctly in closing: “[A]ll the charges boil down
22 to the exact same issue. Can [D.] provide proof beyond any
reasonable doubt in this case?” D. testified there was a two-year gap
23 between the last time defendant abused her and when she reported it,
and she testified that she was afraid to tell anyone about what
24 happened to her and that defendant told her that her dad would go to
jail if she said anything. The defense repeatedly argued that D. had
25 fabricated all of the accusations in this case and was not credible. On
this record, the prosecution was entitled to present CSAAS evidence,
26 which was relevant and admissible as to D.’s credibility. We reject
defendant’s claim that jurors no longer harbor confusion or
27 misconceptions about how children react to sexual abuse. We also
decline to overturn California’s long-standing rule allowing CSAAS
28 evidence where, as here, the victim’s credibility is placed at issue due
1 to counterintuitive behavior. We are bound to follow our Supreme
Court’s decision permitting the admission of CSAAS evidence for
2 the limited purpose it was admitted here. (McAlpin, supra, 53 Cal.3d
at pp. 1300-1301; Auto Equity Sales, Inc. v. Superior Court (1962)
3 57 Cal.2d 450, 455.) For that reason, defendant’s reliance on out-of-
state cases that find CSAAS evidence inadmissible is misplaced.
4
We also reject defendant’s claim that CSAAS evidence is
5 inadmissible because it fails to satisfy the legal requirements for the
admissibility of new scientific methodologies under People v. Kelly
6 (1976) 17 Cal.3d 24 and Frye v. United States (D.C. Cir. 1923) 293
F. 1013 (Kelly/Frye rule). The Kelly/Frye rule does not apply where,
7 as here, the CSAAS testimony is admitted “ ‘for the limited purpose
of disabusing [the] jury of misconceptions it might hold about how a
8 child reacts to a molestation.’ ” (People v. Wells (2004) 118
Cal.App.4th 179, 188.) When introduced for that purpose, and when,
9 as here, the evidence is limited to the expert’s own clinical
experience and familiarity with relevant professional literature, the
10 CSAAS evidence does not implicate Kelly/Frye principles. (People
v. Harlan (1990) 222 Cal.App.3d 439, 448-449.)
11
Finally, defendant claims Dr. Urquiza’s testimony that
12 approximately 75 percent of the victims in a study by his colleague
failed to tell anyone about the abuse within the 12 months following
13 the first instance of abuse was “highly improper.” He contends this
statistic invaded the jury’s role as the arbiter of credibility, relying
14 on People v. Julian (2019) 34 Cal.App.5th 878, at pages 886 to 887,
People v. Wilson (2019) 33 Cal.App.5th 559, at pages 570 to 571,
15 and multiple out-of-state cases. But these cases are inapposite.
16 In Julian, Dr. Urquiza testified at length about the low percentage of
false sexual abuse allegations made by children. (People v. Julian,
17 supra, 34 Cal.App.5th at pp. 883, 884, 885.) The court concluded
such statistical testimony improperly suggested that the victim was
18 telling the truth, and, consequently, that the defendant was guilty. (Id.
at pp. 886-887.) In Wilson, Dr. Urquiza again discussed multiple
19 studies concluding that false sexual abuse allegations occurred very
rarely. (People v. Wilson, supra, 33 Cal.App.5th at p. 568.) Here,
20 unlike these cases, Dr. Urquiza did not testify that false sexual abuse
allegations rarely occur, but rather that most sexual abuse victims
21 failed to tell someone about the abuse within 12 months of its
initiation. That testimony is well within the purpose of CSAAS
22 evidence, which is to explain typical behaviors of sexually abused
children, including delayed reporting.
23
24 (ECF No. 9-6 at 4-6.)
25 As noted above, in the habeas context, there is no clearly established federal law that
26 admitting irrelevant or prejudicial evidence violates due process. Specifically, “[t]here is no
27 ‘clearly established federal law’ that the admission of CSAAS evidence in a child molestation
28 case violates the due process clause.” Otero v. Diaz, 2020 WL 7406517, *10 (E.D. Cal. Dec. 17,
1 2020). Thus, the trial court’s admission of Dr. Urquiza’s testimony was not contrary to, or an
2 unreasonable application of, clearly established Supreme Court authority.
3 Even putting aside the issue of clearly established federal law, petitioner has not shown
4 that the admission of the CSAAS testimony rendered his trial fundamentally unfair. The Ninth
5 Circuit has upheld the use of CSAAS evidence in child abuse cases against due process
6 challenges “when the testimony concerns general characteristics of victims and is not used to
7 opine that a specific child is telling the truth.” Harlow v. People of State of California, 2021 WL
8 1388266, *17 (E.D. Cal. April 13, 2021) (quoting Brodit v. Cambra, 350 F.3d 985, 991 (9th Cir.
9 2003)). In Harlow, which also concerned CSAAS testimony by Dr. Urquiza,
10
the trial court instructed the jury Dr. Urquiza’s testimony about
11 CSAAS was not evidence that petitioner committed any of the
charged crimes, and to consider Dr. Urquiza’s testimony only for the
12 purpose of evaluating the minor’s credibility and in deciding whether
the minor's conduct was not inconsistent with the conduct of
13 someone who had been molested.
14 Id. “Thus,” the court in Harlow found, “Dr. Urquiza’s testimony complied with the limits set forth
15 by the Ninth Circuit in Brodit[.]” Id. (citing 350 F.3d at 991). Similarly, here, Dr. Urquiza’s
16 testimony was admitted for the limited purpose of evaluating D.’s credibility and complied with
17 the due process protections set forth in Brodit. Petitioner’s claim challenging admission of Dr.
18 Urquiza’s testimony as unconstitutional should be denied.
19 C. Claim 3: Prosecutorial Misconduct
20 Petitioner argues that the prosecutor committed misconduct in her closing argument,
21 violating his rights to due process and a fair trial under the Sixth and Fourteenth Amendments.
22 (ECF No. 1 at 27.) He asserts that the prosecutor “used her personal knowledge to assure the jury
23 that her case was stronger than the evidence suggested” by implying that petitioner tried to get J.
24 to change her story.3 (ECF No. 1 at 27-28.)
25 In her closing argument, the prosecutor referred to a letter petitioner wrote to a family
26
3 Petitioner also argues that the prosecutor committed misconduct by misstating the law during
27 closing argument, but the state court of appeals found that, due to defense counsel’s failure to
object or request a curative instruction, that claim of error was forfeited on appeal. (ECF No. 9-6
28 at 14.) The undersigned considers petitioner’s related ineffective assistance claim, below.
1 member in which he “said he wanted me to talk to J. and quote, ‘tell her to tell the truth.’” (ECF
2 No. 9-2 at 415.) The prosecutor continued: “Now, you could infer by that that he didn’t like what
3 she had said the first time to the authorities.” (Id.) Defense counsel objected that this misstated
4 the evidence. (Id.) The trial judge then told the jury that “what the attorneys say is not evidence.”
5 (Id.) After a bench conference, the prosecutor continued her closing argument as follows:
6 So just as an important side note, when you’re reviewing the
evidence, the reason we have jurors come in is because we need
7 people with common sense and life experience. We need people who
can look at the evidence and use reasonable inferences that they draw
8 from the evidence, right? You can infer that when [petitioner] made
this communication . . . , that he was trying – he did not like whatever
9 statement he understood [J.] to make first, and he wanted her to
change her story. . . . I would argue that a reasonable inference could
10 be found that he was trying to tamper with J. as a witness.
11 (ECF No. 9-2 at 416-417.) The trial judge overruled a second objection to this argument. (Id.)
12 In his closing argument, defense counsel argued that petitioner
13 told [J.] to tell the truth. The People want you to speculate as to what
this means. Maybe he has a guilty intent. But what’s another
14 reasonable conclusion? That she just tell the truth. And after all,
remember who the burden of proof is on. It’s on the Government. . .
15 . The People did not play any other statement by J. . . . They didn’t
play any other statement by J. like they clearly could have.
16
17 (ECF No. 9-2 at 432) (emphasis added).)
18 On rebuttal, the prosecutor responded:
19 So, another statement that Mr. Weiss made that he said, ‘Well, Ms.
Stroud could have played [J.’s] first interview for you.’ And that’s
20 not really very fair to me. . . . I would have loved to play the video
of [J.]. Because I wanted you to see. Unfortunately, under the rules
21 of evidence, we can’t play things called hearsay. And that falls into
the category of hearsay. So nothing was being hidden from you. It’s
22 just, we have to follow the law. So that wasn’t really a fair attack on
the People’s case.
23
24 (ECF No. 9-2 at 450; see also id. at 459-461 (bench conference).) On habeas review, petitioner
25 argues that the prosecutor relied on facts not in evidence to suggest that petitioner “tried to
26 influence J. to change her story, which evidenced his guilty intent,” violating his right to a fair
27 trial. (ECF No. 1 at 30.)
28
1 In the last reasoned decision on this claim, the California Court of Appeal denied this
2 claim for the following reasons:
3 Defendant contends the prosecutor committed prejudicial
misconduct on two occasions during closing argument by referring
4 to facts not in evidence and by misstating the law, violating his rights
to due process and a fair trial. We disagree.
5
A. Alleged Suggestion Regarding the Content of J.’s Statement
6
1. Background
7
During the prosecutor’s closing argument, she told the jury that J.’s
8 mother, Guadalupe, testified that not long after she learned of D.’s
allegations against defendant, she received a letter from defendant
9 asking her to tell J. “to tell the truth.” The prosecutor argued: “Now,
you could infer by that that [defendant] didn’t like what [J.] had said
10 the first time to the authorities.” Defense counsel objected, and the
trial court admonished the jury that “what the attorneys say is not
11 evidence. You have listened to all the evidence. You alone are the
deciders of fact and will determine what the evidence is.” The
12 prosecutor continued: “[W]hen you’re reviewing the evidence, the
reason we have jurors come in is because we need people with
13 common sense and life experience. We need people who can look at
the evidence and use reasonable inferences that they draw from the
14 evidence, right? You could infer that when [defendant] made this
communication to Guadalupe, that he was trying — he did not like
15 whatever statement he understood [J.] to make first, and he wanted
her to change her story.” Defense counsel objected again, and the
16 court overruled the objection.
17 Defense counsel argued during closing that, contrary to D.’s
testimony that J. had been molested, J. testified that she did not see
18 anything and had not been molested. He further argued that
defendant’s letter to Guadalupe could have been intended simply to
19 encourage J. to tell the truth. He continued: “[R]emember, [D.] took
the stand and said something that the Government didn’t like. They
20 played [D.’s] old statement. The People did not play any other
statement by [J.]” The trial court overruled the prosecutor’s
21 objection. Defense counsel continued: “They didn’t play any other
statement by [J.] like they clearly could have.” The trial court
22 sustained the prosecutor’s objection.
23 In rebuttal, the prosecutor noted the defense’s argument that she
could have played “ ‘[J.’s] first interview for you,’ ” but she argued,
24 “that’s really not very fair to me. Because when we conduct trials
here in the courthouse, attorneys have to operate by the rules of
25 evidence.” Defense counsel objected on the basis that the argument
was disparaging, but the trial court overruled the objection. The
26 prosecutor continued: “I would have loved to play the video of [J.].
Because I wanted you to see. Unfortunately, under the rules of
27 evidence, we can’t play things called hearsay. And that falls into the
category of hearsay. So nothing was being hidden from you. It’s just,
28 we have to follow the law. So that really wasn’t a fair attack on the
1 People’s case.” Defense counsel objected, but he agreed to wait to
argue the objection until after the prosecutor’s argument concluded.
2
Following argument, defense counsel argued that he should have
3 objected to the prosecutor’s statement that she was unable to play J.’s
prior statement as a misstatement of the law because J. was subject
4 to recall and had made a prior inconsistent statement; therefore, the
prosecutor could have played the video. Defense counsel further
5 argued that the prosecutor’s statement suggested there was evidence
that did not exist. The prosecutor responded that the defense’s
6 argument that she was hiding evidence by choosing not to play J.’s
statement was inappropriate because she had wanted to play J.’s prior
7 statement, but defense counsel had previously opposed on hearsay
grounds, and she did not believe any hearsay exception applied.
8
The trial court concluded that defense counsel’s argument entitled
9 the prosecutor to respond, and it overruled defense counsel’s
objection and denied his request for a mistrial.
10
2. Analysis
11
Prosecutorial misconduct occurs when a prosecutor uses “ ‘deceptive
12 or reprehensible methods to persuade the jury,’ ” and such
misconduct requires reversal under the federal Constitution “ ‘when
13 they infect the trial with such “ ‘unfairness as to make the resulting
conviction a denial of due process.’ ” (People v. Parson (2008) 44
14 Cal.4th 332, 359.) Prosecutorial misconduct does not require a
showing of bad faith on the part of the prosecutor. (People v. Hill
15 (1998) 17 Cal.4th 800, 823.) Referring to facts not in evidence during
argument is a form of misconduct. (People v. Ledesma (1987) 43
16 Cal.3d 171, 238.)
17 Defendant contends the prosecutor used her personal knowledge
outside the record to assure the jury that her case was stronger than
18 the evidence suggested because J. had previously made an
incriminating statement concerning defendant, and defendant tried to
19 influence J. to change her story.
20 We disagree. First, the jury was aware that J. had been interviewed
by authorities; J. testified about the interview, and defendant
21 questioned her about it on cross-examination. Second, the prosecutor
was well within her discretion to argue to the jury that it should infer
22 defendant wrote the letter to Guadalupe because he did not like what
J. had said in her interview. (See People v. Hill, supra, 17 Cal.4th at
23 p. 823 [prosecutors have wide latitude to draw inferences from the
evidence presented at trial]). Defense counsel was entitled to—and
24 did—argue that the jury should instead infer that defendant was
simply asking J. to tell the truth. Third, we recognize that the
25 prosecutor stated that she “would have loved to play the video of [J.]”
because she “wanted [the jury] to see,” but she could not play the
26 video under the rules of evidence. This type of extra-record assurance
to the jury is generally impermissible, particularly when coupled
27 with a reference to the rules of evidence, which are not before the
jury. However, this comment was in direct response to defense
28 counsel’s argument that the prosecutor failed to play J.’s prior
1 statement—“like they clearly could have”—when J. “said something
the Government didn’t like.” Thus, rather than attempting to
2 strengthen her case by suggesting the existence of evidence outside
of the record, the prosecutor was responding to the defense’s
3 assertion that the prosecution did not play J.’s prior statement despite
having the ability to do so.
4
Although certainly not an ideal exchange to have in front of the jury,
5 we disagree that the prosecutor committed misconduct because, as
defendant argues, she suggested her case was stronger than the
6 evidence showed.
7 (ECF No. 9-6 at 11-13.)
8 The controlling Supreme Court precedent governing prosecutorial misconduct claims is
9 Darden v. Wainwright, 477 U.S. 168 (1986). Under Darden, it can be misconduct for prosecutors
10 to manipulate or misstate the evidence or law during closing arguments. See id. at 180-82. Even
11 so, such misconduct cannot violate the Constitution unless the errant statements “so infected the
12 trial with unfairness as to make the resulting conviction a denial of due process.” Id. at 181. That
13 is because the “touchstone of due process analysis in cases of alleged prosecutorial misconduct is
14 the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219
15 (1982). Even if a prosecutor’s remarks were improper, the dispositive question under Darden is
16 whether those remarks were prejudicial. See Ford v. Perry, 999 F.3d 1214, 1225-26 (9th Cir.
17 2021). If there was no “reasonable probability” of a different result without the prosecutorial
18 misstatements, Darden provides no basis for relief. Deck v. Jenkins, 814 F.3d 954, 979 (9th Cir.
19 2016).
20 Here, the last reasoned state court decision was not an unreasonable application of
21 Darden. Under Darden, “the arguments of counsel . . . must be judged in the context in which
22 they are made.” Boyde v. California, 494 U.S. 370, 385 (1990) (citing Darden, 477 U.S. 168)
23 (other citations omitted). The state appeals court considered the context of the prosecutor’s
24 challenged statements, including her rebuttal statements made in response to arguments by
25 defense counsel. The court found that, under state law, the prosecutor was “well within her
26 discretion to argue to the jury that it should infer defendant wrote the letter . . . because he did not
27 like what J. said in her interview.” ECF No. 9-6 at 12. The court further found that, on rebuttal,
28 the prosecutor made the challenged statements “in direct response to defense counsel’s argument .
1 . . that the prosecution did not play J.’s prior statement despite having the ability to do so.” Id. at
2 13 (emphasis in original).
3 Finally, even assuming arguendo that the prosecutor committed misconduct, petitioner
4 has not shown that the prosecutor’s statements “so infected the trial with unfairness as to make
5 the resulting conviction a denial of due process.” Darden, 477 U.S. at 481. Ample evidence
6 supported petitioner’s conviction, including testimony by the victim, D., that petitioner “touched”
7 her in her “private parts . . . more than one time.” (ECF No. 9-2 at 99.) Her testimony described
8 specific incidents involving petitioner, including a date she testified that she remembered in detail
9 because it was her cousin’s birthday. (ECF No. 9-2 at 102-113.) As petitioner has not shown he is
10 entitled to federal habeas relief due to the prosecutor’s closing statements, this claim should be
11 denied.
12 D. Claim 4: Ineffective Assistance of Counsel
13 In a related claim, petitioner asserts that his counsel rendered ineffective assistance by
14 failing to object to prosecutor’s closing argument that J. was a victim of sexual abuse.
15 In the last reasoned decision on this claim, the California Court of Appeal denied this
16 claim for the following reasons:
17 1. Background
18 During closing, the defense argued in part that D.’s testimony was
not credible because she testified that J. had witnessed defendant
19 molesting D. and also that defendant had molested J., but J. had
testified that she did not witness defendant molesting D. and that she
20 herself was not molested.
21 In rebuttal, the prosecutor argued: “[J.], this case is not about [J.]. [J.]
is not the alleged victim in this case. [D.] is the alleged victim in this
22 case. You heard from [J.] because she was a witness to some of the
events with [D.]. But to suggest that just because [J.] has not made
23 her own disclosure of any abuse, to suggest that means [D.] is lying
about what she saw, well, that’s not really fair, right? Because Dr.
24 Urquiza said all kids have their own factors that come into play about
when, or if they’re going to disclose.
25
“It’s a lot of people, kids don’t want to deal with the shame, the
26 embarrassment of it. So they just want to keep quiet about it. And for
every kid that’s going to be a different journey. For [D.], she just
27 happened to have the circumstances align [when she disclosed the
abuse]. Every child who is a victim of sexual abuse is going to have
28 their own moment like that.
1 “But to say just because [J.] has not made that type of disclosure
about [defendant] does not necessarily mean that [D.] is lying. And I
2 would ask you to be understanding of that. And nobody is going to
force [J.] to have that experience before she’s ready. And so I ask
3 you to consider [J.’s] testimony for what it’s being offered for. What
she saw, what she heard, her descriptions of [D.]’s reactions to
4 [defendant].
5 “Because her testimony does corroborate [D.]’s version of events.
And it would be a shame to just throw out either girls’ testimony
6 because you think one has to cancel out the other.”
7 Defendant did not object to this argument or request a curative
instruction.
8
2. Analysis
9
Defendant’s failure to object to this argument or request a curative
10 instruction has forfeited the claim of error on appeal. (People v.
Valdez (2004) 32 Cal.4th 73, 132.) Anticipating that conclusion,
11 defendant contends trial counsel was constitutionally ineffective for
failing to object. To prevail on his claim of ineffective assistance of
12 counsel, defendant must show (1) that his counsel’s representation
was deficient, i.e., that it “fell below an objective standard of
13 reasonableness,” and (2) that prejudice resulted, i.e., that “there is a
reasonable probability that, but for counsel’s unprofessional errors,
14 the result of the proceeding would have been different.” (Strickland
v. Washington (1984) 466 U.S. 668, 687-688, 694.) “ ‘If the
15 defendant makes an insufficient showing on either one of these
components, the ineffective assistance claim fails.’ ” (People v. Holt
16 (1997) 15 Cal.4th 619, 703.)
17 “When examining an ineffective assistance claim, a reviewing court
defers to counsel’s reasonable tactical decisions, and there is a
18 presumption counsel acted within the wide range of reasonable
professional assistance.” (People v. Mai (2013) 57 Cal.4th 986,
19 1009.) The record must affirmatively disclose the lack of a rational
tactical purpose for the challenged act or omission. (People v.
20 Williams (1997) 16 Cal.4th 153, 215.) “ ‘[T]he decision facing
counsel in the midst of trial over whether to object to comments made
21 by the prosecutor in closing argument is a highly tactical one’
[citation], and ‘a mere failure to object to evidence or argument
22 seldom establishes counsel’s incompetence.’ ” (People v. Centeno
(2014) 60 Cal.4th 659, 675.) If the record on appeal sheds no light
23 on why trial counsel acted or failed to act in the manner challenged,
an appellate claim of ineffective assistance of counsel must be
24 rejected unless counsel was asked for an explanation and failed to
provide one or there could be no satisfactory explanation. (People v.
25 Mendoza Tello (1997) 15 Cal.4th 264, 266.)
26 Defendant contends trial counsel was constitutionally ineffective for
failing to object to the prosecutor’s argument that J. was a victim of
27 sexual abuse but was delaying disclosure, and therefore her
statements, which contradicted D.’s as to whether J. was abused,
28 should not be believed.
1 At the outset, we disagree with defendant’s claim that there was ‘no
factual basis’ for the prosecutor’s argument that J. was the victim of
2 sexual abuse. D. testified that she had personally witnessed J. being
sexually abused by defendant, and she told a social worker that she
3 saw defendant touching J. at a family member’s house. While we
recognize J. did not corroborate D.’s testimony on that point, and
4 there was no physical evidence corroborating D.’s testimony, D.’s
testimony certainly provided a factual basis to support the
5 prosecutor’s argument.
6 We also disagree with defendant’s characterization that the
prosecutor improperly used CSAAS to bolster her argument that J.
7 had been abused, and J.’s statements to the contrary should not be
believed. CSAAS evidence was admitted to assist the jury in
8 assessing whether or not D.’s testimony was believable. The defense
argued that D. was not a credible witness because she had testified
9 that J. had observed D. being abused and that J. had herself been
abused, yet J. testified that she did not see D. being abused and she
10 had not been abused. The nature of the prosecutor’s response was to
argue that J.’s testimony did not render D. an unbelievable witness;
11 in other words, the prosecutor invoked the CSAAS evidence to argue
for the believability of D.’s testimony. Indeed, the prosecutor stated,
12 “just because [J.] has not made that type of disclosure about
[defendant] does not necessarily mean that [D.] is lying.” (Italics
13 added.) The jury was entitled to consider CSAAS evidence to assess
the believability of D.’s testimony.
14
Because defense counsel did not fall below a reasonable attorney
15 standard in failing to object to the prosecutor’s argument,
defendant’s claim of ineffective assistance of counsel fails.
16
17 (ECF No. 9-6 at 13-15.)
18 To state an ineffective assistance of counsel claim, a defendant must show that (1) his
19 counsel’s performance was deficient, falling below an objective standard of reasonableness, and
20 (2) his counsel’s deficient performance prejudiced the defense. Strickland v. Washington, 466
21 U.S. 668, 687-88 (1984). For the deficiency prong, “a court must indulge a strong presumption
22 that counsel’s conduct falls within the wide range of reasonable professional assistance; that is,
23 the defendant must overcome the presumption that, under the circumstances, the challenged
24 action ‘might be considered sound trial strategy.’” Id. at 689 (citation omitted). For the prejudice
25 prong, the defendant “must show that there is a reasonable probability that, but for counsel’s
26 unprofessional errors, the result of the proceeding would have been different. A reasonable
27 probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
28 “The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the
1 two apply in tandem, review is ‘doubly’ so.” Harrington v. Richter, 562 U.S. 86, 105 (2011)
2 (internal citations omitted). “When § 2254(d) applies, . . . the question is whether there is any
3 reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.
4 Federal habeas courts reviewing a claim that counsel was ineffective for failing to object
5 to improper closing argument must be deferential to both counsel’s decision not to object and the
6 state court’s conclusion that that decision was reasonable. See Harrington, 562 U.S. at 103, 105;
7 Zapata v. Vasquez, 788 F.3d 1106, 1115 (9th Cir. 2015) (“We consider whether it would have
8 been reasonable to reject [petitioner’s] allegation of deficient performance for any of the reasons
9 expressed by the court of appeal.” (citations and alterations omitted)); Dubria v. Smith, 224 F.3d
10 995, 1003-04 (9th Cir. 2000) (en banc) (finding that trial counsel was not ineffective for failing to
11 object to prosecutor’s closing argument when argument was not improper). Moreover,
12 failure to object during a closing summation generally does not
constitute deficient performance. Absent egregious misstatements,
13 the failure to object during closing argument and opening statement
is within the wide range of permissible professional legal conduct.
14
Zapata, 788 F.3d at 1115 (citation and alteration omitted).
15
Here, petitioner has not demonstrated that defense counsel’s failure to object to the
16
prosecutor’s closing statements about J. constituted deficient performance. Both sides were
17
arguing about the credibility of minors who may or may not have been sexually abused, and to
18
whom the CSAAS factors, including delayed disclosure, could conceivably apply. In this context
19
of factual uncertainty, the prosecutor’s statements about J. did not constitute “egregious
20
misstatements” that clearly warranted an objection. Nor has petitioner shown that a defense
21
objection to these statements could have reasonably resulted in a different outcome. Therefore, it
22
was reasonable for the state court to reject petitioner’s claim for ineffective assistance of counsel
23
on this basis.
24
E. Claim Five: Erroneous Jury Instruction
25
Petitioner claims that the jury instruction on CSAAS evidence (CALCRIM No. 1193, set
26
forth above) was a misstatement of the law that denied him due process and a fair trial. Petitioner
27
contends that the instruction “erroneously told the jury it could use the evidence to evaluate the
28
1 ‘believability’ of the victim’s testimony,” lowering the burden of proof. (ECF No. 1 at 32.)
2 In the last reasoned decision on this claim, the California Court of Appeal denied this
3 claim for the following reasons:
4 Defendant contends that reversal is required because CALCRIM No.
1193 is invalid as it erroneously instructs the jury that it may use
5 CSAAS evidence to determine the credibility of the victim and to
corroborate the victim’s claims of abuse, thereby lowering the
6 prosecution’s burden of proof in violation of his constitutional rights
to due process and a fair trial.
7
FN 5. Defense counsel did not object to the instruction at trial,
8 but we review the merits of the claim to determine whether
defendant’s substantial rights were affected. (§ 1259; People
9 v. Felix (2008) 160 Cal.App.4th 849, 857.)
10 We disagree.
11 We independently determine whether a jury instruction correctly
states the law. (People v. Riley (2010) 185 Cal.App.4th 754, 767.)
12 Review of the adequacy of an instruction is based on whether the trial
court fully and fairly instructed on the applicable law. (Ibid.) When
13 reviewing a purportedly erroneous instruction, we inquire whether
there is a reasonable likelihood that the jury has applied the
14 challenged instruction in a way that violates the constitution. (People
v. Richardson (2008) 43 Cal.4th 959, 1028.) We consider the
15 instructions as a whole and assume that the jurors are intelligent
persons and capable of understanding and correlating all the
16 instructions that are given. (Riley, at p. 767.) A jury instruction
should be interpreted, if possible, to support the judgment rather than
17 defeat it, if it is reasonably susceptible to such interpretation. (Ibid.)
18 Here, the jury was instructed with CALCRIM No. 1193 as follows:
“You have heard testimony from Dr. Urquiza, regarding [CSAAS].
19 Dr. Urquiza’s testimony about [CSAAS] is not evidence that the
Defendant committed any of the crimes charged against him. You
20 may consider this evidence only in deciding whether [D.’s] conduct
was not inconsistent with the conduct of someone who has been
21 molested, and in evaluating the believability of her testimony.”
22 CALCRIM No. 1193 is a correct statement of the law. CSAAS
evidence is properly considered to evaluate whether the victim’s
23 conduct as demonstrated by the evidence was inconsistent with
having been molested, and to help the jury evaluate credibility, i.e.,
24 the believability of the victim’s testimony. (McAlpin, supra, 53
Cal.3d at pp. 1300-1301; see also People v. Housley (1992) 6
25 Cal.App.4th 947, 958-959.)
26 Contrary to defendant’s contention, the instruction does not lower the
prosecution’s burden of proof; it specifically states that CSAAS
27 testimony “is not evidence that the defendant committed any of the
crimes charged against him,” and that the jury “may” consider the
28 evidence “only in deciding whether or not [D.’s] conduct was not
1 inconsistent with the conduct of someone who has been molested,
and in evaluating the believability of her testimony.” The instruction
2 does not state or imply that jurors could consider the CSAAS
evidence to corroborate D.’s claims of molestation. Further, the
3 challenged instruction cannot be read in isolation; it must be
considered in the context of the instructions as a whole. As relevant
4 here, the jury was instructed on the presumption of innocence and
the prosecution’s burden of proof (CALCRIM No. 220), and how to
5 evaluate witness credibility (CALCRIM No. 226) and conflicting
evidence (CALCRIM No. 302). It was instructed to “[p]ay careful
6 attention to all of the[ ] instructions and consider them together”
(CALCRIM No. 200), that “certain evidence was admitted for a
7 limited purpose,” and to “consider that evidence only for that purpose
and for no other” (CALCRIM No. 303). The jury was further
8 instructed that it was not required to accept as true or correct expert
testimony and it “may disregard any opinion [it found] unbelievable,
9 unreasonable or unsupported by the evidence.” (CALCRIM No. 332,
Expert Witness Testimony.) We presume the jury understood and
10 followed the court’s instructions, including the prosecution’s burden
of proof. (People v. Edwards (2013) 57 Cal.4th 658, 746.) We
11 conclude that it is not reasonably likely that the jury understood
CALCRIM No. 1193 in the manner suggested by defendant.
12
13 (ECF No. 9-6 at 7-8.)
14 To obtain federal habeas relief for a jury instructional error, petitioner must show that the
15 error “so infected the entire trial that the resulting conviction violates due process.” Estelle, 502
16 U.S. at 72. Where an ambiguous or potentially defective instruction is at issue, the court must ask
17 whether there is a “reasonable likelihood” that the jury applied the challenged instruction in a way
18 that violated the constitution. See id. Moreover, the instruction must be evaluated in the light of
19 the instructions as a whole and the entire trial record. See id. A “slight possibility” that the jury
20 misapplied the instruction is not sufficient. Weeks v. Angelone, 528 U.S. 225, 236 (2000).
21 Here, as in Griffin v. Martinez, No. 1:17-cv-01137-DAD-HBK, 2021 WL 4100000, at *14
22 (E.D. Cal. Sept. 9, 2021) (emphasis in original),
23 [t]he record reflects the jury was not instructed to use CSAAS
evidence as proof that a crime had occurred or that the witnesses were
24 telling the truth. To the contrary, the jury was instructed that [t]he
testimony about [CSAAS] is not evidence that the defendant
25 committed any of the charges against him. Indeed, the jury was
instructed to use the CSAAS evidence ‘only in deciding whether or
26 not [D.’s] conduct was not inconsistent with the conduct of someone
who has been molested, and in evaluating the believability of [her]
27 testimony. . . . The instruction did not require the jury to find the
child witnesses were telling the truth or that the alleged crime
28 occurred.
1 | (ECF No. 9-1 at 318.) Also as in Griffin, the state appellate court considered the instructional
2 || error claim in the context of the other instructions given, fulfilling the requirements of due
3 || process. The Court finds that the state court’s rejection of this claim was not an unreasonable
4 || application of federal law or based on an unreasonable determination of the facts. Petitioner’s jury
5 || instruction claim should be denied.
6 | V. CONCLUSION
7 Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of
8 | habeas corpus be denied.
9 These findings and recommendations are submitted to the United States District Judge
10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days
11 | after being served with these findings and recommendations, any party may file written
12 || objections with the court and serve a copy on all parties. Such a document should be captioned
13 || “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections,
14 | he shall also address whether a certificate of appealability should issue and, if so, why, and as to
15 || which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the
16 || applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
17 || § 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after
18 || service of the objections. The parties are advised that failure to file objections within the specified
19 || time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153
20 | (9th Cir. 1991).
21
22 || Dated: March 12, 2025 A aA
Aan Spe |
CHI SOO KIM
24 UNITED STATES MAGISTRATE JUDGE
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27 || mari0554.157.csk/6
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