Renderos v. Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VICTOR MANUEL RENDEROS, 

Petitioner-Appellant, No. 05-16454

v.

 D.C. No.

CV-04-05250-CRB

STUART RYAN, Warden, California

State Prison, Calipatria, OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted

April 5, 2006—San Francisco, California

Filed November 8, 2006

Before: Eugene E. Siler, Jr.,* Johnnie B. Rawlinson, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Siler

*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge

for the Sixth Circuit, sitting by designation.

18363

18366 RENDEROS v. RYAN

COUNSEL

Anne C. Beles, Robert J. Beles, and Paul McCarthy, Oakland,

California, for the appellant.

Gregg E. Zwycke, Bill Lockyer, Robert R. Anderson, Gerald

Engler, and Peggy S. Ruffra, San Francisco, California, for

the appellee.

RENDEROS v. RYAN 18367

OPINION

SILER, Circuit Judge:

Petitioner Victor Renderos appeals the denial of his petition

for a writ of habeas corpus. Because Renderos identifies no

“clearly established federal law” that was misapplied or vio-

lated by the California Court of Appeal, and does not contend

that there was an unreasonable determination of the facts, we

deny the petition.

I.1

Renderos dated Lisa C. during the early 1990s. She had two

sons, Ryan and Jordan, both of whom were under 14 years

old. Renderos spent a lot of time with Lisa and her sons, and

Ryan thought of Renderos as a father. However, the relation-

ship ended after a few years, sometime in the mid 1990s.

When Ryan was seventeen, he told his mother that

Renderos had sexually molested him. He had not previously

said anything to his mother because the incidents made him

feel “gay” and he feared he would get in trouble. On March

19, 2001, Ryan reported the abuse to the police. One month

later, investigators taped two telephone conversations

between Ryan and Renderos. Ryan asked Renderos whether

he remembered the molestations and asked why Renderos had

molested him. Ryan reminded Renderos about an incident that

had occurred on a canoeing trip and asked why Renderos had

touched him. Renderos at first stated he did not remember the

trip and denied touching Ryan when he was little. Renderos

then stated,

But don’t worry about shit like that, Man. That was

something that, you know, happened a long time ago

1

These facts are taken largely from the district court’s recitation of the

California Court of Appeal decision.

18368 RENDEROS v. RYAN

and that you — we just did some playing around,

you know? . . . No big thing.

During the second call, Ryan asked Renderos for advice

about problems which he thought were based upon his past.

Renderos protested,

Hey, come on over, Man. You know . . . things like

that happen. Hey, it was just — you was crazy at the

time. You remember that . . . . You know, you were

crazy and you want to experiment things, you know

and things like that. You’re the one that motivated

the whole thing, you know? Just let the guilt out of

your head.

Ryan further stated he was bothered by Renderos’s act of

“always, like, mak[ing] me put my hand on your penis.”

Renderos replied, “Oh well, you know? You — you wanted

to do that. You know remember? You wanted to.” When

Ryan wondered why this was relevant given that he was only

eight years old then, Renderos claimed: “You were about 12,

Man. You were old, already . . . . I didn’t meet you when you

was eight. You were older than that.” When Ryan again stated

it was not normal for “guys to grab each other’s dicks,”

Renderos replied, “Oh, it’s a — I know. Yeah, I couldn’t fig-

ure out why you want to do it. Remember that?” When Ryan

said he did not really want to do it but Renderos forced his

hand, Renderos replied, “No, you’re . . . the one. You started

out, remember, you wanted to experiment crazy things. You

. . . were always doing crazy things. Remember that?” When

Ryan again said he did not understand why Renderos wanted

Ryan to “try to suck his dick” because it was like Renderos

was using Ryan to get what he wanted, Renderos replied,

Oh, no. Huh-uh. No, no. You got me wrong . . . .

You’re the one that always wanted it. Remember the

way you are, Man. The way you used to be. You

want to do this, you want to do that . . . . I didn’t

RENDEROS v. RYAN 18369

force you into doing anything. You’re the one that

motivated everything. Think about that.

Ryan stated he did not know how he had motivated the sex

because he was too young, to which Renderos replied, “Well,

you knew what you were doing, Bro.”

The remainder of the telephone conversation continued in

the same vein, with Ryan asking Renderos if he remembered

the sexual encounters, and Renderos telling Ryan to forget

about the incidents and inviting Ryan to talk to Renderos

more about the incidents because then they might stop bother-

ing him.

Five days after the telephone conversations, on April 25,

2001, California filed a criminal complaint against Renderos

charging him with various and multiple counts of felony sex

offenses.

At trial, Ryan testified that the incidents began when he

was only eight years old. The first incident occurred during a

canoeing trip on the Russian River. After urinating next to

each other, Renderos took Ryan’s hand, placed it on

Renderos’ penis and told Ryan to keep it there. Ryan with-

drew his hand after a few seconds. The second incident

occurred about two months later. Renderos was at Ryan’s

home for the nightly dinner with the family. After dinner,

Ryan’s mother left the house to attend to her real estate busi-

ness. Ryan was in his bedroom changing his clothes when

Renderos came in. Renderos reached through the opening in

Ryan’s boxer shorts and pulled on Ryan’s penis for a few sec-

onds. Renderos then placed Ryan’s hand on his penis and

instructed Ryan to pleasure him.

The sexual abuse, which Ryan described as “touching,

the[n] me jacking him off,” became more frequent as Ryan

got closer to nine. Ryan testified that it occurred “at least once

every three days.” In addition to the forced masturbation,

18370 RENDEROS v. RYAN

Ryan testified that when he was nine or ten, he was forced to

orally copulate Renderos; and on a few occasions, Renderos

used his finger and once used his penis to penetrate Ryan’s

rectum. Ryan testified that the abuse occurred from the time

he was eight years old until he was eleven.

Renderos testified on his own behalf and denied molesting

Ryan on any occasion. He claimed that he met Ryan’s mother

sometime in 1992 or 1993, and he dated her for three or four

years. He could not recall how old Ryan was when he first

met the boy; he thought Ryan must have been around ten

years old at the time. He testified that although he ate dinner

at their home almost every night, he never inappropriately

touched Ryan. Renderos testified that practically every night

that he was at Lisa’s home, he and Lisa had intimate relations

in her bedroom after the boys went to bed, and that he left at

about 11:00 p.m. He recalled caring for the boys on only five

occasions without their mother.

Renderos explained that his statements during the recorded

telephone calls with Ryan referred to incidents that took place

when Ryan was eleven or twelve years old. On a few occa-

sions, after having sex with Ryan’s mother, Renderos came

out of Lisa’s bedroom to find Ryan outside the bedroom door.

He recalled Ryan once asking coyly, “how do [you] like my

mother’s . . . female part?” Renderos said Ryan would grab

[Renderos’s] penis through his clothes. Renderos told Ryan to

stop touching him and told Lisa about the incidents, suggest-

ing they have intimate relations later in the evening. The inci-

dents happened on five occasions. Renderos claimed all the

statements he made on tape were references to these incidents

instigated by Ryan.

Renderos was found guilty of one count of committing con-

tinuous sexual abuse (during a four-month period when Ryan

was eight years old), one count of oral copulation (when Ryan

was nine or ten years old), one count of sexual penetration

with a foreign object (when Ryan was ten years old), and 23

RENDEROS v. RYAN 18371

counts of committing a lewd act on a child under 14 (each

count covering a one-month interval from September 1, 1992

through July 31, 1994 when Ryan was eight, nine, and ten

years old). Although the statute of limitations had expired

under CAL. PEN. CODE §§ 800 and 801, the jury found that the

prosecution satisfied the predicate requirements under Section

803(g), which made the prosecution timely. The trial court

sentenced Renderos to an aggregate term of 66 years in

prison.

On direct appeal, the California Court of Appeal denied

summary reversal. See People v. Renderos, 114 Cal. App. 4th

961 (Cal. Ct. App. 2003) (partially published). The California

Supreme Court denied review. See People v. Renderos, 2004

Cal. LEXIS 3290 (Cal. April 14, 2004). The district court

denied Renderos’s application for a writ of habeas corpus.

The court issued a Certificate of Appealability (“COA”) on

several grounds: (A) that application of CAL. PEN. CODE

§ 803(g), which extended the statute of limitations for sex

offenses with minors, is a violation of the Ex Post Facto

Clause as declared by the Supreme Court in Stogner v. Cali-

fornia, 539 U.S. 607 (2003); (B) that it was error to hold that

the conditions for invoking section 803(g) could be proven by

a standard lower than “reasonable doubt”; (C) that it violated

due process to admit evidence of Renderos’s other bad acts;

(D) that it was prejudicial prosecutorial misconduct to refer to

stricken testimony by the victim’s mother during closing

argument; (E) that Renderos was prejudiced by trial counsel’s

ineffective assistance; and (F) that there was cumulative error.

II.

This appeal is governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254.

Subsection (d) states:

An application for a writ of habeas corpus . . . shall

not be granted with respect to any claim that was

18372 RENDEROS v. RYAN

adjudicated on the merits in State court proceedings

unless the adjudication of the claim—

(1) resulted in a decision that was con-

trary to, or involved an unreasonable appli-

cation of, clearly established federal law, as

determined by the Supreme Court of the

United States; or

(2) resulted in a decision that was based

on an unreasonable determination of the

facts in light of the evidence presented in

the state court proceeding.

To be an “unreasonable” application of Supreme Court pre-

cedent, a state court decision has to be more than merely “er-

roneous,” Lockyer v. Andrade, 538 U.S. 63, 75 (2003); it must

be “objectively unreasonable,” Williams v. Taylor, 529 U.S.

362, 409 (2000). Thus, the object of our inquiry is not to

revisit the merits underlying the conviction, see Coleman v.

Thompson, 501 U.S. 722, 730 (1991), but rather to look to the

highest state court to render a reasoned decision and inquire

whether the conviction was procured in violation of the con-

stitution or federal law, see Avila v. Galaza, 297 F.3d 911,

918 (9th Cir. 2002).

A.

Renderos contends that CAL. PEN. CODE § 803(g) violates

the Ex Post Facto Clause of the United States Constitution.

See U.S. CONST., art. I, § 10 (“No state shall . . . pass any bill

of attainder, ex post facto law, or law impairing the obligation

of contracts . . . .”). The six- and three-year limitations periods

under CAL. PEN. CODE §§ 800 and 801, respectively, each of

which was applicable to certain charges, expired on his case

by early 2001.2 Relying almost exclusively on Stogner, 539

2

The limitations periods depend upon the maximum punishments, and

Renderos was charged under different statutes with differing maximum

RENDEROS v. RYAN 18373

U.S. at 614-15, Renderos claims that Section 803(g)3 imper-

missibly revived the limitations period. Section 803(g) states:

(1) Notwithstanding any other limitation of time

described in this chapter, a criminal complaint may

be filed within one year of the date of a report to a

California law enforcement agency by a person of

any age alleging that he or she, while under the age

of 18 years, was the victim of a crime described in

Section 261, 286, 288, 288a, 288.5, 289, or 289.5.

(2) This subdivision applies only if all of the fol-

lowing occur:

(A) The limitation period specified in

Section 800, 801, or 801.1, whichever is

later, has expired.

(B) The crime involved substantial sexual

conduct, as described in subdivision (b) of

Section 1203.066, excluding masturbation

that is not mutual.

(C) There is independent evidence that

corroborates the victim’s allegation. If the

penalties. See CAL. PEN. CODE § 800 (“[P]rosecution for an offense punish-

able by imprisonment in the state prison for eight years or more shall be

commenced within six years after commission of the offense.”); CAL. PEN.

CODE § 801(“[P]rosecution for an offense punishable by imprisonment in

the state prison shall be commenced within three years after commission

of the offense.”). The parties agree that the limitations period under both

provisions had lapsed by the time the criminal complaint was filed.

3

This was the applicable subsection numbering at the time. In 2005, and

after litigation commenced, California amended the statute deleting the old

subsection (f) and renumbering the old subsection (g) as subsection (f)

without any substantive alterations. We refer to the statute as the parties

have in its pre-amendment form.

18374 RENDEROS v. RYAN

victim was 21 years of age or older at the

time of the report, the independent evidence

shall clearly and convincingly corroborate

the victim’s allegation.

(3) No evidence may be used to corroborate the

victim’s allegation that otherwise would be inadmis-

sible during trial. Independent evidence does not

include the opinions of mental health professionals.

Thus, Renderos contends, § 803(g) is a violation of the Ex

Post Facto Clause because by its terms, it only applies to

those charges on which the original period under §§ 800 and/

or 801 has lapsed.

The California Court of Appeal, the highest state court to

review this case on the merits, rejected the same argument:

The proviso that the subsection does not apply unless

the statute of limitations has expired in section 800

or 801, “obviously ensures that the one-year period

in section 803(g)(1) does not override or otherwise

conflict with sections 800 or 801 where [the victim]

reports the crime to a qualifying law enforcement

agency before the three-year or six-year period set

forth in the latter provisions ‘has expired.’ In this

way, the limitations period in Section 803(g) — like

other ‘tolling’ and ‘extension’ provisions in the same

statute — serves to prolong, rather than shorten, the

time in which a felony child molestation prosecution

may be commenced.” (People v. Frazer, [21 Cal.4th

737, 752 (1999)]).

....

That the People could not prosecute an action until

a report was filed by the victim . . . does not support

Renderos’s contention [that] the statute as applied to

RENDEROS v. RYAN 18375

him had the effect of “reviving” a prosecution barred

by the statute of limitations. Because the statute of

limitations under section 800 had not expired when

section 803(g) became effective on January 1, 1994,

section 803(g) permitted the People to commence

prosecution for the offenses within one year after the

filing of Ryan’s report, notwithstanding the limita-

tion period in section 800.

Renderos, 114 Cal. App. 4th at 966 (footnote omitted). The

California Court of Appeal did not misapply Stogner, nor any

other clearly established Supreme Court precedent prohibiting

ex post facto laws.

[1] First, Stogner is materially distinct from the case before

us. There, the Supreme Court addressed whether a different

provision, CAL. PEN. CODE § 803(g)(3)(A) (1996), violated the

U.S. Constitution’s ban on ex post facto laws. Stogner was

charged in 1998 for sex-related acts with minors that alleg-

edly occurred between 1955 and 1973. See 539 U.S. at 609.

The statutes of limitations under §§ 800 and 801 which also

covered those charges had long since run. Id. at 610. In 1994,

California enacted CAL. PEN. CODE § 803(g), and a 1996

amendment — now repealed per Stogner — provided that sat-

isfaction of the conditions in § 803(g)(2) “shall revive any

cause of action barred by [prior statutes of limitations].” CAL.

PEN. CODE § 803(g)(3)(A) (1996) (alteration omitted).

[2] The Supreme Court found the law unconstitutional,

holding that a statute enacted after the expiration of a statute

of limitations and that revives prosecution is a classic ex post

facto law and is no different from a statute that authorizes

punishment for an act that was not illegal at the time it was

committed. Stogner, 539 U.S. at 614-15. The Court also held

that the case represented another type of Ex Post Facto Clause

violation where there is a reduction in the quantum of proof

necessary to convict, observing that “a statute of limitations

reflects a legislative judgment that, after a certain time, no

18376 RENDEROS v. RYAN

quantum of evidence is sufficient to convict.” Id. at 615 (cit-

ing United States v. Marion, 404 U.S. 307, 322 (1971)). How-

ever, the critical element in both of these holdings was the

fact that the amendment in question became effective after the

statute of limitations had already expired. Stogner, 539 U.S.

at 618-19. The Court observed that the evils sought to be

avoided by the Ex Post Facto Clause were visited upon

Stogner because he went years under the belief that he would

not be prosecuted, and there was an irrebuttable presumption

that one is prejudiced under such a belief. See id. at 611.

[3] Here, § 803(g) was enacted while the limitations peri-

ods were still running on the claims against Renderos. This is,

therefore, precisely the type of statute that Stogner expressly

stated it was not striking down. See id. at 618-19. Renderos

identifies no other case on point. Therefore, we cannot con-

clude that the California Court of Appeal’s determination was

“contrary to or an unreasonable application of clearly estab-

lished federal law, as determined by the Supreme Court of the

United States. . . .” 28 U.S.C. § 2254.

[4] Furthermore, Renderos’s canonical invocations of

Stogner’s verbiage are equivocal and unavailing. He essen-

tially argues that had § 803(g) directly extended — or even

abolished — the limitations periods in §§ 800 and 801, then

it would not have run afoul of the Constitution, but that

because it is a different limitations period that is triggered

once the other periods expire, it amounts to a revival statute

of the type criticized by the Supreme Court. However, con-

trary to Renderos’s mistaken belief, § 803(g) seamlessly,

albeit conditionally, extends the statute of limitations immedi-

ately upon expiration of the other periods. Thus, there is never

a period in which a putative defendant is subject to “punish-

ment[ ], where [he] was not, by law, liable to any,” Stogner,

539 U.S. at 612 (quoting Calder v. Bull, 3 U.S. 386, 389

(1798)), until one year after the victim files a report with the

proper authorities. The fact that the extension is conditional

is a distinction without a relevant difference. Subsections

RENDEROS v. RYAN 18377

803(g)(2)(A)-(C) state conditions that must be satisfied by the

prosecution before extending the limitations period. These,

therefore, inure to a defendant’s benefit by shielding him

against potentially arbitrary prosecutions that the victim has

not supported and against accusations supported by flimsy,

stale, or uncorroborated evidence. See CAL. PEN. CODE

§ 803(g)(2)(A)-(C).

[5] Finally, the application of § 803(g) to this case does not

“threaten[ ] the kind of harm that . . . the Ex Post Facto Clause

seeks to avoid.” Stogner, 539 U.S. at 611. There is no mani-

fest injustice here because there was no “retroactive effect,”

as the original limitations period had not yet expired. Id. For

the same reason, Renderos cannot claim prejudice as he never

became “safe from . . . pursuit” because he had notice and

“fair warning” that even though the three- and six-year limita-

tions periods would soon expire, he could still be prosecuted

under § 803(g). Id. (quoting Falter v. United States, 23 F.2d

420, 426 (2d Cir. 1928), cert. denied, 277 U.S. 590)).

[6] Therefore, we cannot conclude that the Court of Appeal

misapplied clearly established Supreme Court precedent.

B.

Renderos claims that the jury should have been required to

find beyond a reasonable doubt the conditions for triggering

the extension under §§ 803(g)(2)(A)-(C). The trial court

charged the jury with finding guilt beyond a reasonable doubt,

but instructed the jury that after it found guilt, it had to find

by clear and convincing evidence the elements of

§§ 803(g)(2)(A)-(C). Renderos argues that because California

courts have treated statutes of limitations as elements of the

offense, they have to be proven beyond a reasonable doubt.

In rejecting this claim, the California Court of Appeal held:

Renderos’s argument is based upon the premise that

because a defendant cannot be convicted of an

18378 RENDEROS v. RYAN

offense that is time-barred, the statute of limitations

is an “element of the offense” that needs to be

proved beyond a reasonable doubt. Concededly, the

courts have described the statute of limitations as

part of the People’s case to plead and prove as any

other “element” of the offense . . . . However, our

Supreme Court has consistently held the prosecution

is required to prove any factual allegations regarding

the statute of limitations only by a preponderance of

the evidence in the absence of any other standard set

by the legislature.

We reject Renderos’s contention that prevailing

federal constitutional law concerning the burden of

proof in criminal cases requires us to now declare

the factual allegations concerning the statute of limi-

tations should be deemed an element of the offense

that must be established beyond a reasonable doubt.

“[T]he Due Process Clause requires the prosecution

to prove beyond a reasonable doubt all of the ele-

ments included in the definition of an offense of

which the defendant is charged.” (Patterson v. New

York (1977) 432 U.S. 197, 210). In Apprendi v. New

Jersey (2000) 530 U.S. 466, 476, 490, the United

States Supreme Court also held the federal constitu-

tion requires the prosecution to prove beyond a rea-

sonable doubt any fact, other than a prior conviction,

that increases the maximum punishment for the

offense. However, no United States Supreme Court

or lower federal court case holds, as a matter of fed-

eral constitutional law, that the timeliness of a crimi-

nal prosecution must be proved beyond a reasonable

doubt.

Renderos, No. 097873, Calif. Ct. of Appeal, Dec. 30, 2003,

pp.16-17 (unpublished) (some citations omitted).

Here, the Court of Appeal did not err. Renderos fails to

identify any Supreme Court precedent clearly establishing

RENDEROS v. RYAN 18379

that statutes of limitations must be proven beyond a reason-

able doubt. In fact, he concedes that no such case exists.

Rather he relies on In re Winship, 397 U.S. 358 (1970), for

the proposition that any fact predicate to a conviction must be

proven beyond a reasonable doubt. However, we do not read

In Re Winship so broadly. Though every element of the crime

must be proven beyond a reasonable doubt to convict, not

every predicate to a conviction is an element of the crime.

[7] In In Re Winship, the Supreme Court confronted the

question of the quantum of proof necessary for the conviction

of a juvenile offender in juvenile court. The Court observed

that “[d]ue process commands that no man shall lose his lib-

erty unless the Government has borne the burden of [proof]

. . . . It is critical that the moral force of the criminal law not

be diluted by a standard of proof that leaves people in doubt

whether innocent men are being condemned.” 397 U.S. at 364

(citations omitted). The Court then held, “Lest there [be] any

doubt about the constitutional stature of the reasonable-doubt

standard, we explicitly hold that the due process clause pro-

tects the accused against conviction except upon proof beyond

a reasonable doubt of every fact necessary to constitute the

crime with which he is charged.” Id.

[8] The findings necessary to trigger § 803(g) do not fall

within the due process penumbra expounded in In Re Win-

ship, and no subsequent case has so expanded it. Section

803(g) does not define a crime, and §§ 803(g)(2)(A)-(C) do

not prescribe facts that “constitute the crime.” 397 U.S. at

364. “Section 803(g) regulates the time at which child sexual

abuse defined and punished elsewhere in the Penal Code may

be charged.” Frazer, 21 Cal. 4th at 760 (italics in original)

overruled on other grounds by Stogner, 539 U.S. at 611.

Directly on point is United States v. Gonsalves, 675 F.2d

1050, 1054 (9th Cir. 1982). There, we addressed the appropri-

ate standard of proof for the tolling provision in 18 U.S.C.

§ 3290, a statute applicable to persons fleeing the commission

of a crime. Id. at 1052. Holding that the preponderance stan-

18380 RENDEROS v. RYAN

dard was the appropriate one, we observed that even though

proving the factual element of the provision was necessary to

convict, “[a] major reason for adhering to the ‘reasonable

doubt’ standard is absent . . . when the evidence offered to

prove a defense is unrelated to the issue of guilt.” Id. at 1054.

Thus, while the elements of §§ 803(g)(2)(A)-(C) were neces-

sary to convicting Renderos, they did not need to be proven

beyond a reasonable doubt because they did not bear upon his

guilt vis-a-vis his innocence, such that there was the risk of

an “innocent [man] . . . being condemned.” See In Re Win-

ship, 397 U.S. at 364.

[9] Therefore, the California Court of Appeal was not

objectively unreasonable in its application of Supreme Court

due process law in rejecting Renderos’s claim.

C.

During trial, the court admitted evidence of Renderos’s

statement to Ryan wherein Renderos attempted to have Ryan

secure him a young girl for a sexual encounter.4 Renderos

4

The relevant portion of the transcript reads:

[Renderos] Q: Hey, do you know any — any ho’s [sic] Man? Fix

me up.

[Ryan] A: No, I don’t know no ho’s.

Q: Fix me up, Man.

A: I’ll see what I can do.

Q: Fix me up.

A: I’ll see what I can do.

Q: Something nice, and about 18, you know?

A: Yeah.

Q: I can, you know, legal.

[Ryan] Q: You don’t want ‘em younger, maybe?

A: Well I don’t know. Am I — Oh, you know? Never know.

RENDEROS v. RYAN 18381

claims that these statements were the only ones admitted for

“corroboration” as required in Section 803(g), but were preju-

dicial because they showed “propensity.” He also claims it

was error to fail to give a limiting instruction once the evi-

dence was admitted.

The trial court rejected defense counsel’s objections, stating

“In reading so far the areas of objection, especially page thir-

teen, I think it goes far to describe the relationship between

the alleged victim and defendant. And I think it is relevant to

the charges.”

The California Court of Appeal held:

Initially, we note that in seeking to exclude this por-

tion of the transcript, appellant did not raise any

“propensity” argument nor did he request the trial

court to caution the jury on the use of the evidence.

(See People v. Bolin (1998) 18 Cal. 4th 297, 327-328

[trial court has no sua sponte duty to instruct the jury

as to the use of other crimes evidence].) In any

event, we need not address whether the trial court

should have allowed into evidence the challenged

part of the tape. Assuming for the sake of argument

that the trial court should have excluded the chal-

lenged evidence, the error was harmless beyond a

reasonable doubt. The prejudicial effect of the evi-

Q: All right.

[Renderos] Q: See what you can do, Man.

[Ryan] A: All right.

Q: You know I like my pussy, Bubba.

A: All right.

Q: Whenever you want to talk. Whenever you have problems,

call me, Man. Call me.

18382 RENDEROS v. RYAN

dence was minimal given that it “was no stronger

and no more inflammatory than the [evidence] con-

cerning the charged offenses.” (People v. Ewoldt

(1994) 7 Cal. 4th 380, 405.) It is unlikely the “jury

might [have] doubted that [Renderos] committed the

charged offenses but convicted anyway because of a

belief he committed [any] uncharged crimes.” (cita-

tion omitted.). Accordingly, reversal on this basis is

not warranted.

Renderos, p. 23.

[10] Renderos’s principal objection to this holding is that

it does not address the due process claim and that the inclu-

sion of the transcript altered the jury’s perception of his credi-

bility. We disagree. A successful petition for collateral relief

rooted in a claim of trial error must demonstrate actual preju-

dice, that is, a “substantial and injurious effect or influence in

determining the jury’s verdict.” Brecht v. Abrahamson, 507

U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328

U.S. 750, 758 (1946)). Renderos neither establishes that the

evidence had a “substantial” effect on the jury nor proves how

excluding the challenged portion would have detracted from

the damning — and unchallenged — admissions contained in

the balance of the transcripts. Cf. Parle v. Runnels, 387 F.3d

1030, 1045 (9th Cir. 2004) (concluding that erroneous admis-

sion of evidence of victim’s violent character was harmless

because defendant could not show a substantial influence on

the jury’s verdict). Furthermore, the challenged transcript is

ambiguous in that Renderos did not accept Ryan’s offer of a

girl under 18, and Renderos said he wanted something

“legal.”

[11] Therefore, the Court of Appeal did not err in holding

that there was no constitutional violation.

D.

Renderos contends that he was prejudiced by the testimony

of the victim’s mother, and the trial prosecutor’s subsequent

RENDEROS v. RYAN 18383

reference to the statement during closing. The transcript reads

in relevant portion:

Q: What kind of relationship did you have with

your son, Ryan?

A: Ryan had some signs of dysfunction. There was

no doubt. He had some anger issues. I took

Ryan to see psychologists. I took him to psychi-

atrists . . . . I didn’t know what the problem was

with Ryan . . . . [¶] He’s never been in trouble

outside of our home. Everything has always

been centered in our home. He would get angry,

punch the door, hit the wall, things like this. I

didn’t know why.

Q: You are saying this all occurred approximately

around 1992?

A: No. It started a little time later . . . . [¶] It started

later.

Q: It’s fair to say that this type of behavior was

never present in Ryan before?

A: No.

Q: 1992?

A: No, both of my boys, and I say both of my boys

have had problems, both of my boys have been

molested.

The trial court sustained a motion to strike and instructed

the jury to disregard the last sentence. The prosecutor then

referred to this testimony during her closing argument to the

jury:

18384 RENDEROS v. RYAN

I think what you saw from [victim’s mother] was

some really righteous emotion on the witness stand.

She was upset . . . . What she said, you know, was

emotional. I don’t think you can read that to say she

was somehow making these things up to help the

case along. . . . When we are talking about, you

know, credibility, you can look at the witness’

demeanor while they are testifying. You can look at

Lisa . . . what she did, what she said, her emotions.

The Court of Appeal rejected Renderos’s argument that the

testimony and the later reference constituted prosecutorial

misconduct:

The record does not contain any evidence that the

prosecutor knew or should have known Lisa was

going to mention both her sons had been molested.

Moreover, the trial court directed the jury to disre-

gard the testimony, and we assume the jury followed

that instruction. (People v. Sanchez (2001) 26 Cal.

4th 834, 852.) Further, Renderos did not object or

request any cautionary instruction regarding either

Lisa’s conduct or the prosecutor’s references to the

emotional nature of Lisa’s conduct on the witness

stand. In any event, to the extent any of the chal-

lenged comments were erroneous or inappropriate, it

is not reasonably probable a different result would

have been reached in the absence of those remarks.

(People v. Watson (1956) 46 Cal. 2d 818, 835.)

Renderos, p. 25.

On a petition for a writ of habeas corpus, the standard of

review for a claim of prosecutorial misconduct is “the narrow

one of due process, and not the broad exercise of supervisory

power.” Darden v. Wainwright, 477 U.S. 168, 181 (1986)

(quoting Donnolly v. DeChristoforo, 416 U.S. 637, 642

(1974)). Thus, to succeed, Renderos must demonstrate that it

RENDEROS v. RYAN 18385

“so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Donnolly, 416 U.S. at

643.

[12] Renderos claims that under People v. Bentley, 131 Cal.

App. 2d 687, 690 (Cal. Ct. App. 1955) overruled on other

grounds by People v. White, 50 Cal. 2d 428 (1958), the prose-

cution had the affirmative duty to ensure that its witnesses did

not volunteer inadmissible statements. However, in Bentley,

in response to a question on direct examination, a police offi-

cer testified that he had questioned the defendant in a previous

child molestation case. Id. at 689. Here, the statement was

elicited by defense counsel during cross examination. Further-

more, the testimony does not engender the degree of prejudice

at issue in Bently. Lisa C. never stated she thought Renderos

had molested her other son, and in any event the court gave

an instruction to disregard the statement to which Renderos

neither objected nor sought a stronger admonition. See Ken-

nedy v. Lockyer, 379 F.3d 1041, 1061 n.3 (9th Cir. 2004)

(juries are presumed to have followed court’s instruction).

During the closing, the prosecutor merely referred to the emo-

tion of Lisa’s testimony and did not repeat that both of her

sons had been molested. Given the telephone transcripts,

which are more likely than not the principal basis upon which

Renderos was convicted, the mere erroneous inclusion of

inconsequential statements is insufficient to demonstrate that

it “so infected the trial with unfairness as to make the result-

ing conviction a denial of due process.” Donnelly, 416 U.S.

at 643.

E.

Renderos claims that trial counsel was ineffective and his

errors prejudicial. However, there was no attempt to set forth

the legal standards for such a challenge nor an attempt to meet

them. We therefore deem the issue waived. See Acosta-

Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1993).

18386 RENDEROS v. RYAN

F.

Renderos contends that the errors should be considered

cumulatively and not individually. However, the only issue

identified above that might have been erroneous but deemed

not prejudicial is the admission of the testimony of

Renderos’s solicitation of Ryan to procure a young girl for

sex. None of the other errors identified in the brief was dis-

posed of solely on the grounds of failure to prove prejudice.

Even assuming that Lisa’s testimony should have been

stricken, Renderos does not argue how those two errors, even

considered together, overcome the cumulative weight of the

balance of the evidence against him.

III.

Thus, the California Court of Appeal’s denial of relief was

neither contrary to, nor an unreasonable application of, clearly

established Supreme Court precedent in holding that CAL.

PEN. CODE § 803(g) was not a violation of the Ex Post Facto

Clause under Stogner, nor in any of the other assignments of

error. We also deny Renderos’s request to expand the COA

to include uncertified claims.

AFFIRMED.