Petition for Writ of Certiorari — Richard Steven Johnson, Jr., Petitioner v. Neil McDowell, Warden

Supreme Court briefDec 20, 2018

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No. ___________

In the Supreme Court of the United States

October 2019 Term

__________________________________________

STEVEN RICHARD JOHNSON, Jr.,

Petitioner,

NEIL MCDOWELL, Warden,

Respondent.

________________________________________

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Geoffrey M. Jones

Counsel of Record, appointed under the

Criminal Justice Act of 1964

769 Center Blvd., PMB No. 162

Fairfax, CA 94930

Tel: (415) 517-3569

email: gffjones@comcast.net

Attorney for Petitioner

Steven Richard Johnson, Jr.

Question Presented

The sole question raised by this Petition for Certiorari is whether the Ninth

Circuit Court of Appeals violated petitioner’s fundamental rights by ruling that the

California Courts reasonably applied this Court’s decisions, including Maryland v.

Craig, 497 U.S. 836 (1990), and Coy v. Iowa, 487 U.S. 1012 (1988), in rejecting

petitioner’s claim of a Confrontation Clause violation on direct appeal, where the

state court permitted 17-year-old complaining witness to respond to all questions

on cross-examination by writing out her answers, after which the presiding judge

recited the witness’s answers to the jury.

Parties to the Proceeding

The parties to the proceeding are only those listed in the caption: Richard

Steven Johnson, Jr., and the warden of the California prison in which he is

incarcerated, Neil McDowell.

TABLE OF CONTENTS

Page

INDEX TO APPENDICES

iii

TABLE OF AUTHORITIES

Opinions Below

Jurisdiction

Constitutional and Statutory Provisions Involved in Case

2-3

STATEMENT OF THE CASE

Procedural Background

Factual Background

REASONS FOR GRANTING THE WRIT

Introduction

II.

The Ninth Circuit Erred in Concluding that the California Courts

Reasonably Applied Maryland v. Craig and Coy v. Iowa in

Rejecting Petitioner’s Confrontation Clause Claim: The State

Court Violated Petitioner’s Sixth Amendment Rights by Severely

Curtailing Cross-Examination of the Complaining Witness.

Clearly Established Federal Law.

Relevant Proceedings before the State Court.

The Decision of the Ninth Circuit Court of Appeal.

The California Court of Appeal’s Decision Rejecting

Mr. Johnson’s Confrontation Clause Claim Constitutes

an Objectively Unreasonable Application of Federal Law.

The Testimony of A.S. and the State Trial Court’s

Rulings.

The California Court of Appeal Unreasonably Applied

Maryland v. Craig and Coy v. Iowa Within the Meaning

of § 2254(d)(1).

The State Court Unreasonably Applied Coy

and Craig by Allowing A.S. to Write Her Answers

on Cross-Examination, With the Presiding Judge

Then Reciting A.S.’s Responses to the Jury.

Even If the “Special Procedure” Adopted by the Trial

Court Satisfied the Elements of Effective Confrontation

Required by Craig, the State Court Nonetheless Patently

Violated Craig by Failing to Hold a Hearing or Make

the Required Findings.

CONCLUSION

APPENDIX

INDEX TO APPENDICES

APPENDIX A:

Unpublished Opinion of the United States Court of Appeals for the Ninth Circuit,

filed October 24, 2018.

APPENDIX B:

District court’s order denying the petition for writ of habeas corpus, filed on March

29, 2017.

APPENDIX C:

Unpublished decision of the California Court of Appeal, Third Appellate District,

on direct appeal (last reasoned decision of state court), filed January 27, 2015.

iii

TABLE OF AUTHORITIES

CASES

Blackledge v. Allison

431 U.S. 63 (1977)

Bollenbach v. United States

326 U.S. 607 (1946)

29-30

California v. Green

399 U.S. 149 (1970)

passim

Coy v. Iowa

487 U.S. 1012 (1988)

passim

Cullen v. Pinholster

563 U.S. 170 (2011)

Davis v. Alaska

415 U.S. 308 (1974)

Delaware v. Fensterer

474 U.S. 15 (1985)

Glasser v. United States

315 U.S. 60 (1942)

Maryland v. Craig

497 U.S. 836 (1990)

passim

Mattox v. United States

156 U.S. 237 (1895)

passim

Olden v. Kentucky

488 U.S. 227 (1988)

Parker v. Gladden

385 U.S. 363 (1966)

Quercia v. United States

289 U.S. 466 (1933)

29-30

Starr v. United States

153 U.S. 614 (1894)

29-30

United States v. Moses

137 F.3d 894 (6th Cir. 1998)

CONSTITUTIONAL PROVISIONS, RULES AND STATUTES

United States Constitution

Amend. VI

Amend. XIV

passim

28 U.S.C.

§ 1254

§ 2253

§ 2254

2, 5

passim

United States Supreme Court Rules

Rule 13(3)

California Penal Code

§ 288

§ 667.61(d)(2)

3, 6-7

No. ___________

In the Supreme Court of the United States

October 2019 Term

__________________________________________

STEVEN RICHARD JOHNSON, Jr.,

Petitioner,

NEIL MCDOWELL, Warden,

Respondent.

________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner respectfully prays that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the Ninth Circuit.

Opinions Below

The unpublished opinion of the Ninth Circuit Court of Appeal appears at

Appendix (“App.”) A. The district court’s order denying habeas relief appears at

App. B. Finally, the unpublished opinion of the California Court of Appeal

denying petitioner’s direct appeal (the last reasoned state court decision) appears at

App. C.

Jurisdiction

The district court had jurisdiction pursuant to 18 U.S.C. § 2254. The Ninth

Circuit had jurisdiction pursuant to 28 U.S.C. § 2253(c)(1). The Ninth Circuit

Court of Appeals entered judgment on October 24, 2018, affirming the district

court’s denial of the writ. See App. A at 3. Petitioner did not file a motion for

rehearing before the Ninth Circuit. Petitioner invokes this Court’s jurisdiction

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Constitutional Provisions

The Sixth Amendment to the United States Constitution provides in

pertinent part: “In all criminal prosecutions, the accused shall enjoy the right … to

be confronted with the witnesses against him.”

U.S. Const. amend. VI.

The Fourteenth Amendment states in pertinent part: “nor shall any State

deprive any person of life, liberty, or property, without due process of law.” U.S.

Const. amend. XIV.

Statutory Provisions

28 U.S.C. § 2254(d)(1) provides as follows: “An application for writ of

habeas corpus on behalf of a person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that was adjudicated on the

merits in State court proceedings unless the adjudication of the claim resulted in a

decision that was contrary to, or involved and unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States.”

STATEMENT OF THE CASE

Procedural Background

This petition for certiorari arises out of an appeal of the district court’s

denial of a petition for a writ of habeas corpus by a person in custody pursuant to

the judgment of a state court.

See 28 U.S.C. § 2254.

In 2012, a California Jury convicted Mr. Johnson (hereinafter referred to as

“Petitioner”) of lewd and lascivious acts by force or violence on a minor under the

age of 14,1 and found true a sentencing enhancement allegation that Petitioner

Cal. Penal Code § 288(b)(1). All further citations to the “Penal Code” refer to

the California Penal Code.

kidnapped the victim during the commission of the offense.2 App. C at 1. The

jury was unable to reach a verdict on three other counts: two counts of forcible

rape and one count of kidnapping to commit a sex offense. The trial court

declared a mistrial as to those three counts. App. B at 1; ER 15; see Lodged Docs

202, 207-09, 927-28, 930.3 Petitioner was sentenced to a term of 25 years-to-life.

App. C at 1.

On direct appeal to the California Court of Appeal, Petitioner raised the

certified claim that the trial court violated the Sixth Amendment’s Confrontation

Clause by restricting cross-examination of the 17-year-old complaining witness in

a manner that allowed her “to testify without speaking and without allowing the

jury and defendant to face and confront her.” App. C at 7. The Court of Appeal

affirmed Petitioner’s conviction in an unpublished decision on January 27, 2015.

App. C at 1-2. Petitioner filed a petition for review to the California Supreme

Court, which was denied by summary order on April 15, 2015. ER 30; see

Penal Code § 667.61(d)(2).

“ER” refers to the Appellant’s Excerpts of Record filed with the Ninth Circuit in

conjunction with the Opening Brief. “Lodged Docs” refers to the 1,089-page PDF

file available on the Ninth Circuit’s docket via PACER; citations refer to the page

number of the PDF file where the document is located. This file contains the

state court record lodged by respondent in the district court on August 23, 2016.

See ER 167.

Lodged Docs 1089.

Proceeding pro se, Petitioner filed his habeas petition, pursuant to

section 2254, in the Eastern District of California on April 11, 2016. ER 29, 43,

166. Petitioner raised a single claim of relief, arguing that his Sixth Amendment

right to confrontation was violated by the state court’s imposition of severe

limitations on the defense’s cross-examination of the complaining witness,

resulting in a fundamentally unfair trial under the Fourteenth Amendment. ER

30.

On March 29, 2017, the district court issued an order denying the habeas

corpus petition on the merits. App. B at 9-14. In the March 29th order, the

court also granted a certificate of appealability, stating that “the undersigned

determines that a Certificate of Appealability is appropriate in this case” with

respect to Petitioner’s single claim for relief under the Confrontation Clause.

App. B at 14; see App. C at 2 & n.2; see also 28 U.S.C. § 2253(c)(3). The district

court entered judgment on March 30, 2017. ER 28. On April 14th, Petitioner

filed a timely notice of appeal.

ER 27.

On October 24, 2017, the Ninth Circuit Court of Appeals affirmed the

district court’s denial of Petitioner’s habeas petition. App. A at p. 3. The Ninth

Circuit concluded that the California Court of Appeal did not unreasonably apply

this Court’s precedent, despite the state court’s procedure from cross-examining

the complaining witness being “unusual” and potentially unconstitutional. App.

A at p. 3.

This Petition for Writ of Certiorari is timely under Rule 13(3) of the rules of

this Court, as the 90th day from the Ninth Circuit’s decision falls on January 22,

2019.

Factual Background

After a brief introductory note, the following statement of facts will

summarize the most salient facts from the written opinion of the California Court

of Appeal, and additionally, where noted, will summarize other evidence from

Petitioner’s trial that was not included in the state court’s opinion.

See Cullen v.

Pinholster, 563 U.S. 170, 181-182 (2011) (review under section 2254(d) includes

entire record before state court). The state court’s factual summary can be found

in App. C, at pages 16-20.

As a preliminary point, Petitioner’s defense theory at trial conceded that he

had engaged in non-forcible sexual intercourse with the complaining witness, A.S.,

who was thirteen years old at the time. Thus, Petitioner admitted that he had

violated a lesser charged offense, under Penal Code section 288(a), by engaging in

lewd and lascivious conduct with a minor under 14 years of age. Petitioner

contested, however, that he had used force or fear to coerce A.S., either by forcing

her to engage in sexual intercourse or by kidnapping her.

As noted above, the

jury convicted Petitioner of the greater charged offense of using force or fear to

engage in lewd and lascivious conduct (Penal Code § 288(b)(1)), but was not able

to reach a verdict on charges of rape and kidnapping to commit rape.

The following facts, quoted from the California Court of Appeal’s written

decision, were derived primarily from A.S.’s pretrial statements made close in time

to the events in question. A.S.’s testimony at the trial, by contrast, affirmed some

aspects of these statements but was of more limited scope.4

In February 2009, 13-year-old A.S. lived at home with her mother S.S. and

some of her siblings. Her sister J.S. lived in a separate apartment with her

boyfriend – defendant – and their baby daughter.

On February 28, 2009, defendant asked A.S. to go to the store with him and

buy tampons for J.S. He did not want to buy tampons because he was a man.

He drove A.S. to Foods Co., where she bought tampons for defendant.

Rather than taking her home, defendant drove A.S. to a place she did not

know. The place was about 15 minutes from the store and had a parking lot

and buildings that looked like warehouses. A.S. felt she could not escape

because there was no one else in the area. After parking, defendant got out

of the car, opened the passenger door, and ordered A.S. into the trunk. A.S.

got out of the car and defendant pushed her into the trunk.

Defendant drove the car for a “pretty long” time. She did not know where

she was when defendant stopped and opened the trunk. The place looked

like a forest and she could not get away. Defendant then sexually assaulted

4 A.S.’s complete trial testimony is included in the ER at pages 59-93.

A.S. in the back seat of the car. He told A.S. not to tell anyone and dropped

her off near her home. A.S. went to a friend’s house before going home.

App. C at 2; ER 16.

These events described by A.S. in her pretrial statements were partially

corroborated by the results of a search of the car Petitioner had been driving, which

yielded a box of tampons and a store receipt that was consistent with A.S.’s

account of being driven to the Foods Co. store. App. C at 3. DNA evidence

confirmed sexual intercourse between Petitioner and A.S. App. C at 3.

However, as noted above, this was consistent with the defense’s theory of the case,

that is, that Petitioner engaged in nonforcible intercourse with J.S.

The Court of

Appeal also noted that DNA evidence established that A.S. had been inside the car,

including her DNA being found in the trunk. App. C at 3-4. The state court

failed to note, however, that the witness who testified that A.S.’s DNA was found

in the trunk had failed to record the location inside the trunk from which the swab

was taken. Lodged Docs 485, 535. Moreover, it was uncontested that the car

had been in the family (first driven by A.S.’s mother, then by her sister and

Petitioner) for a number of years. Thus, A.S. had been a passenger in the car on

countless occasions prior to the incident in question.

Lodged Docs 415-16, 418-

19, 444-45.

Finally, in contrast to the A.S.’s pretrial statements summarized by the Court

of Appeal, A.S. also made two pretrial statements (one to a defense investigator

and another to her sister, J.S.) in which she denied that Petitioner had forced her

into the trunk of the car or forced her to engage in sexual intercourse. Lodged

Docs 755-59 (statement to defense investigator); 444-454 (sister).

REASONS FOR GRANTING THE WRIT

Introduction

The petitioner, Richard Johnson, Jr., seeks a writ of certiorari in the instant

case as to a single issue of exceptional importance, which turns on the Ninth

Circuit’s erroneous application of this Court’s clearly established precedents

interpreting the Sixth Amendment’s Confrontation Clause and its guarantee of the

opportunity to effectively cross-examine one’s accuser.

Before the Ninth Circuit, Petitioner demonstrated that his Sixth Amendment

right to confrontation was violated when the trial court allowed A.S. to respond to

all questions on cross-examination by writing out her answers, after which the

presiding judge recited the complaining witness’s answers to the jury. For several

independently sufficient reasons, Petitioner demonstrated to the Ninth Circuit that

the California Court of Appeal unreasonably applied the Supreme Court’s

decisions in Maryland v. Craig, 497 U.S. 836 (1990), and Coy v. Iowa, 487 U.S.

1012 (1988), in rejecting Petitioner’s claim of a Confrontation Clause violation on

direct appeal. First, these cases require that the jury be able to view the witness’s

demeanor contemporaneously with the witness’s answers on cross-examination.

Second, Craig and Coy require that cross-examination be oral, not written. Third,

the elements of effective confrontation guaranteed by Craig preclude the presiding

judge from delivering the witness’s answers to the jury. Fourth and finally, Craig

requires that the trial court hold a hearing before ordering any “special procedure”

that supplants traditional cross-examination, and at such a hearing the court must

find that the witness is traumatized specifically by the defendant’s presence in

court. Here, the trial court held no hearing, and the complaining witness

explicitly stated that she was not upset due to the defendant’s presence.

Accordingly, despite the Ninth Circuit’s erroneous decision to the contrary, the

California Court of Appeal unreasonably applied Craig and Coy in rejecting

Petitioner’s claim under the Confrontation Clause. See 28 U.S.C. § 2254(d)(1).

II.

The Ninth Circuit Erred in Concluding that the California Courts

Reasonably Applied Maryland v. Craig and Coy v. Iowa in Rejecting

Petitioner’s Confrontation Clause Claim: The State Court Violated

Petitioner’s Sixth Amendment Rights by Severely Curtailing CrossExamination of the Complaining Witness.

Clearly Established Federal Law.

The Confrontation Clause provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right ... to be confronted with the witnesses against him.”

U.S. Const. amend VI.

This Court has held that “[t]he main and essential purpose of confrontation

is to secure for the opponent the opportunity of cross-examination.” Davis v.

Alaska, 415 U.S. 308, 315-16 (1974). Cross-examination must include “a full and

fair opportunity to probe and expose” any matter that materially bears on a

witness’s credibility. Delaware v. Fensterer, 474 U.S. 15, 22 (1985) (per

curiam); see Olden v. Kentucky, 488 U.S. 227, 231-32 (1988). As the Court

wrote in Davis, a defendant has a “right of effective cross-examination,” the

deprivation of which constitutes “constitutional error of the first magnitude.”

Davis, 415 U.S. at 318; see California v. Green, 399 U.S. 149, 157-158 (1970)

(Confrontation Clause permits admission of out-of-court statements, so long as

declarant is “subject to full and effective cross-examination”); see also Maryland

v. Craig, 497 U.S. 836, 851 (1990) (discussing the “elements of effective

confrontation”).

In order to be considered full, fair, and effective within the meaning of the

Court’s cases, cross-examination has traditionally required a face-to-face

confrontation between the witness and the accused. Coy v. Iowa, 487 U.S. 1012,

1015-1020 (1988) (discussing California v. Green, 399 U.S. 149, among other

authorities). In Green, the Court explained that the Sixth Amendment’s

requirement of a face-to-face confrontation stems from the Founders’ desire to

prohibit criminal convictions being based on a witness’s untested written

statement:

The primary object of the [Confrontation Clause] was to prevent depositions

or ex parte affidavits … being used against the prisoner in lieu of a personal

examination and cross-examination of the witness in which the accused has

an opportunity, not only of testing the recollection and sifting the conscience

of the witness, but of compelling him to stand face to face with the jury in

order that they may look at him, and judge by his demeanor upon the stand

and the manner in which he gives his testimony whether he is worthy of

belief.

Green, 399 U.S. at 157-58, quoting Mattox v. United States, 156 U.S. 237, 242-43

(1895)); see Craig, 497 U.S. at 845.

In the instant case, the clearly established Federal law required by section

2254(d)(1) is determined by the following of this Court decisions: Maryland v.

Craig, 497 U.S. 836 and Coy v. Iowa, 487 U.S. 1012. The California Court of

Appeal discussed both of these decisions in its opinion affirming Petitioner’s

conviction. See App. C at 7-8, 10.

In Coy v. Iowa, the Court addressed a procedure whereby the state trial court

allowed two children to give their testimony from behind a screen that prevented

them from seeing the defendant. Coy, 487 U.S. at 1014. The defendant was

able “dimly to perceive the witnesses, but the witnesses could see him not at all.”

Id. at 1015; see id. at 1020. The Court held that “the Confrontation Clause

guarantees the defendant a face-to-face meeting with witnesses appearing before

the trier of fact.” Id. at 1016; see id. at 1017-1020. With respect to the

procedure employed by the Iowa trial court, the late Justice Scalia wrote for the

majority that “[i]t is difficult to imagine a more obvious or damaging violation of

the defendant’s right to a face-to-face encounter.” Id. The Court “left for

another day … the question whether any exceptions exist” to this right. Id. at

1021.

Two years later, in Maryland v. Craig, the Court took up the question of

exceptions to the requirement of a face-to-face encounter. In Craig, the Court

clarified that Coy v. Iowa did not establish an “absolute right to a face-to-face

meeting” between a criminal defendant and the witnesses against him at trial.

Craig, 497 U.S. at 844 (emphasis in original). The procedure addressed in Craig

involved child witnesses testifying “by one-way closed circuit television” from a

separate room where they could not see the defendant.

Id. at 840-41. The

attorneys examined the witnesses in-person, while the defendant, the jury, and the

judge viewed the examination by video from the courtroom. Id. at 841-42. The

defendant was able to communicate with his counsel electronically, and the court

made rulings in the same manner. Id. at 842.

Although the Maryland trial court’s alternative method of cross-examination

deviated from the traditional mode of confrontation, the Court found that it

comported with the Sixth Amendment for two reasons: first, it preserved the

essential “elements of effective confrontation,” Craig, 497 U.S. at 851, and second,

it was premised upon a “finding of necessity” by the trial court, id. at 855.

With respect to the trial court’s findings, the Court explained that the

“requisite finding of necessity must of course be a case-specific one: The trial court

must hear evidence and determine whether” the use of a “special procedure,” such

as the one-way video feed at issue, “is necessary to protect the welfare of the

particular child witness.”

Id. “The trial court must also find that the child

witness would be traumatized, not by the courtroom generally, but by the presence

of the defendant.” Id. at 856. With respect to the latter requirement, the Court

emphasized that it must be “the presence of the defendant that causes the trauma”

to the child witness. Id.

In discussing the requirement that any “special procedure” employed as an

alternative to traditional cross-examination must “preserve[] the essence of

effective confrontation,” Craig, 497 U.S. at 857, the Court explained why the oneway video feed preserved the elements of effective cross-examination: 1) the

witness was competent and testified under oath; 2) the defendant retained “full

opportunity for contemporaneous cross-examination;” and 3) “the judge, jury, and

defendant” were able to observe “the demeanor (and body) of the witness” while

he or she was testifying. Craig, 497 U.S. at 851. The Court reasoned that the

presence of “these elements of effective confrontation” – testimony under oath,

contemporaneous cross-examination, and “observation of the witness’ demeanor –

adequately ensures that the testimony is both reliable and subject to rigorous

adversarial testing in a manner functionally equivalent to that accorded live, inperson testimony.”

Id.

Finally, the Craig opinion was clear in holding that these twin requirements

for utilizing a “special procedure” to replace traditional cross-examination are

conjunctive: the alternative procedure must both preserve the essential elements of

effective confrontation and be supported by a finding of necessity.

See Craig,

497 U.S. at 857; see also id. at 855, 860.

Relevant Proceedings before the State Court.

In its unpublished decision, the California Court of Appeal applied

Coy v. Iowa and Maryland v. Craig, as well as a pair of California cases, to reject

Petitioner’s claimed violation of the Confrontation Clause. App. C at 7-8, 10-11.

The Court of Appeal noted that after A.S. experienced difficulty answering

questions on direct, including crying “during most of her testimony,” and

repeatedly expressing a desire not to testify about the details of the charged

offenses, the trial court granted the prosecutor’s request to allow A.S. to give her

answers in writing. App. C at 4-5. Thereafter, during the last portion “of A.S.’s

direct,” and throughout the entire cross-examination, A.S. “gave her answers in

writing, which were then read by the trial court.”

App. C at 5.

The Court of Appeal further noted that when A.S. wrote down her answers

to defense counsel’s questions on cross-examination, she turned her back to

defense counsel and to the defendant. The jury may have had difficulty seeing

A.S. as she wrote down her answers. App. C at 6.

The court addressed as separate issues A.S.’s comportment on the witness

stand (e.g., turning her back to the defendant and turning away from defense

counsel) and her being allowed to testify without speaking (i.e., providing her

answers in writing, which were then read in open court by the judge). App. C at 1.

Addressing the first question, the court concluded that A.S.’s refusal to face

the defendant or defense counsel did not implicate Petitioner’s confrontation right,

reasoning that the Sixth Amendment does not require a witness to look at the

defendant or counsel. App. C at 10-11; see App. C at 7 (“The Confrontation

Clause does not … compel the witness to fix his eyes upon the defendant; he may

studiously look elsewhere, but the trier of fact will draw its own conclusions”)

(quoting Coy, 487 U.S. at 1019). Because the Confrontation Clause did not

require A.S. to comport herself in a certain matter on the witness stand, the Court

of Appeal reasoned, the trial court was not required to hold a hearing or make the

findings required under Maryland v. Craig. App. C at 10.

With respect to A.S.’s participation in cross-examination via written answers

which were then recited by the judge in open court, the Court of Appeal ruled that,

for purposes of the Sixth Amendment, there was essentially no difference between

a witness participating in cross-examination by the traditional method of giving

spoken answers, and the witness giving her answers in writing.

App. C at 10-11.

Likewise, the court concluded that the trial judge having read the witness’s

answers to the jury was of no constitutional significance. App. C at 5-6, 10-11.

The court reasoned that the trial judge orally reciting A.S.’s written answers was

“no different than” the commonly-accepted practice of allowing a witness who

cannot speak English to testify through an interpreter.

App. C at 10-11.

The Decision of the Ninth Circuit Court of Appeal.

In its unpublished decision, the Ninth Circuit concluded that the state court’s

decision constituted a not-unreasonable application Maryland v. Craig and Coy v.

Iowa, pursuant to 28 U.S.C. § 2254(d)(1). App. A at p. 3. The Ninth Circuit

noted that the state court employed an “unusual” procedure for cross-examination

of the state’s primary witness, and expressed no opinion as to the constitutionality

of that procedure, but distinguished Coy and Craig on the basis that “[t]hose cases

were concerned with when and how a traumatized child witness can testify outside

the presence or view of the defendant,” while the instant case involved a

curtailment of traditional cross-examination during which the witness and

defendant were both present in the courtroom.

App. A at p. 3.

The Ninth Circuit interpreted this Court’s precedents far too narrowly. In

the following section, Petitioner will demonstrate that, contrary to the Ninth

Circuit’s decision, the state appellate court’s ruling constituted an unreasonable

application of the Sixth Amendment’s Confrontation Clause, as interpreted by the

Supreme Court’s decisions in Maryland v. Craig and Coy v. Iowa. See 28 U.S.C.

§ 2254(d)(1). Briefly, under Craig, it was objectively unreasonable for the trial

court, without first making the requisite findings, to supplant traditional crossexamination with the “special procedure” whereby A.S. gave her answers in

writing, with the presiding judge then reciting A.S.’s responses to the jury and

counsel. See Craig, 497 U.S. at 851, 855, 857 (“special procedure” that supplants

traditional cross-examination must retain the “elements of effective confrontation”

and be supported by a “case-specific finding of necessity”).

The California Court of Appeal’s Decision Rejecting Petitioner’s

Confrontation Clause Claim Constituted an Objectively Unreasonable

Application of Federal Law.

The Testimony of A.S. and the State Trial Court’s Rulings.

The complaining witness, A.S., was 17 years old when she testified at

Petitioner’s jury trial. ER 60. A “victim advocate” sat next to A.S. during her

testimony. ER 67. The trial court also allowed A.S. to approach the witness

stand by entering the through a non-public side door, because she had difficulty

walking to the witness stand in view of the jurors. ER 67-68.

During A.S.’s direct examination, she was able to provide spoken answers to

preliminary background questions, but expressed a strong reluctance to testify

when the prosecutor asked about the incident in question. ER 65; see ER 60-64,

69-70, 72. She repeatedly answered with statements such as “I can’t do this,” or

“I don’t want to talk about it,” or by asking “can I leave?” ER 65; see ER 70-71,

73-76, 79-81. During a break in the proceedings, defense counsel estimated that

that A.S. said “at least 12 to 14 times” that she did not want to, or was unable to

testify. ER 81-82.

Eventually, after two breaks were taken for A.S.’s benefit, see ER 66, 81, the

prosecutor asked the court for permission to approach A.S. with a pen and paper so

that A.S. could write out the answers she was having difficulty articulating. ER

83. The trial court allowed this. ER 83. The transcript reflects that, from this

point onward, “[t]he witness is now writing her answers and the Court is reading

the answers into the record.” ER 83; see ER 84 (A.S. passes pad of paper to court

after writing out each answer).

With A.S. writing her responses on a notepad, the presiding judge read aloud

the remainder of A.S.’s answers on direct examination. ER 83-84. Thus, with

A.S. sitting silently, the jury heard the judge recite the following evidence: On

February 28, 2009, A.S. engaged in sexual intercourse, but she did not want to do

so; she was forced. This happened inside the Honda Civic, after she left the

Foods Co store. ER 84. On redirect, A.S. wrote, and the judge recited, that

Petitioner had forced her into the trunk of the Civic, and that he took her against

her will to the location where he forced her to have sex. ER 92.

The defense’s cross-examination of A.S. was conducted in the same manner,

with A.S.’s written answers recited by the judge. ER 84-92; see ER 100

(recording defense counsel’s earlier objection at sidebar). Defense counsel

attempted to question A.S. about statements she had purportedly made to her sister

and to a defense investigator, in which she denied that Petitioner had forced her

into the trunk of the Civic, or forced her to have sex. ER 87-92. A.S. responded

to this line of questioning by writing that she did not remember talking to a defense

investigator. However, she denied having made the exculpatory statements

attributed to her by the investigator.

ER 87-90. A.S. also denied having told her

sister that her statement to the police, in which she accused Petitioner of forcible

kidnapping and rape, had not been true. ER 89.

A.S.’s hand-written answers, made on a note pad during her examination,

appear in the appellant’s excerpts at pages 163-65. See ER 163-65; see also ER

97, 99 (trial court retains written answers as Court Exh. 1).

Shortly after A.S. was excused, defense counsel renewed her objection and

moved to have A.S.’s testimony stricken, arguing, among other things, that

Petitioner’s Sixth Amendment right to effective confrontation was violated by A.S.

being permitted to participate in cross-examination by giving written answers.

ER 95. The trial court denied the defense’s motion to strike, ruling that the

special procedure it had adopted involved only “slight deviations from regular

practice.” ER 97-98.

The California Court of Appeal Unreasonably Applied Maryland

v. Craig and Coy v. Iowa Within the Meaning of § 2254(d)(1).

As noted above, the California Court of Appeal applied Coy and Craig to

conclude that 1) the procedure adopted by the trial court, where A.S. responded to

cross-examination in writing after which the presiding judge recited her answer to

the jury, was no different than a witness being aided by an interpreter, and thus of

no constitutional significance; and 2) even if findings were required under Craig,

the trial court satisfied this requirement by observing on the record that A.S.

appeared traumatized. App. C at 10-11; see App. C at 6.

In the following sections, Petitioner will demonstrate that the Ninth Circuit

erred by concluding that the California Court of Appeal reasonably applied Coy

and Craig, and thus that Petitioner failed to meet the AEDPA threshold under

section 2254(d)(1).

First, for several independently sufficient reasons, the

procedure employed by the trial court patently failed to meet the elements of

effective confrontation required by the Craig decision. Therefore, under Craig,

the state trial court’s procedure violated the Sixth Amendment’s Confrontation

Clause, irrespective of any findings made by the trial court. Second, even if the

trial court’s special procedure is deemed to satisfy Craig’s elements of effective

confrontation, such that the procedure would be constitutionally permissible if

premised upon proper findings, the findings made by the trial court here cannot

reasonably be seen as meeting the criteria required by Craig.

The State Court Unreasonably Applied Coy and Craig by

Allowing A.S. to Write Her Answers on Cross-Examination,

With the Presiding Judge Then Reciting A.S.’s Responses to

the Jury.

The Craig Court wrote that “the right guaranteed by the Confrontation

Clause includes not only a ‘personal examination’” of adverse witnesses, but also

an opportunity for effective confrontation. Craig, 497 U.S. at 845 (quoting

Mattox, 156 U.S. at 242); see id. at 851. Cross-examination provides the requisite

opportunity for effective confrontation where the witness is physically present,

under oath, and the examination is “contemporaneous” with the witness subject to

“observation of demeanor by the trier of fact.” Id. at 846, 851. Critically, this

last element of effective confrontation – contemporaneous cross-examination –

must “permit[] the jury … to observe the demeanor of the witness in making his

statement, thus aiding the jury in assessing his credibility.” Id. (quoting Green,

399 U.S. at 158) (emphasis added); see id. at 851.

The “special procedure” approved by the Court in Craig allowed the jury to

view the witnesses’ demeanor by video as they responded to the attorneys’

examination. Id. at 840-42. To the Court, a necessary feature of this protocol

was that, although the witness could not see the defendant, the jury was “able to

view … the demeanor (and body) of the witness as he or she testifies.”

Id. at 851.

Thus, because the jury can observe the witnesses’ demeanor as they give their

answers, an examination-by-video “adequately ensures that the testimony is both

reliable and subject to rigorous adversarial testing” as required by the

Confrontation Clause. Id. (citing Mattox, 156 U.S. at 242, and Green, 399 U.S. at

179 (Harlan, J., concurring)).

Here, the California Courts did not comport with the element of effective

confrontation that cross-examination must be contemporaneous so that that the jury

can observe the witness as she gives her answers: when the jury heard A.S.’s

answers, the presiding judge was speaking.

As the jurors listened to the judge recite A.S.’s written words, they could

look to A.S.’s demeanor on the witness stand, but she had already responded to

defense counsel’s question, in writing, some seconds earlier. Thus, the procedure

utilized here lacked the saving grace of the video examination approved in Craig,

where the defendant’s “full opportunity for contemporaneous cross-examination”

ensured that the jury was “able to view … the demeanor (and body) of the witness

as he or she testifies.” Id. at 851 (emphasis added). Indeed, there is not a single

passage in the Craig decision where the Court separates the witness’s act of giving

testimony from the jury’s observation of her demeanor: under Craig, confrontation

requires that these two events happen at precisely the same time.

See, e.g., id.

(“as he or she testifies”); id. at 846 (“in making his statement”); id. at 857

(“witnesses … were subject to full cross-examination, and were able to be

observed by the judge, jury, and defendant as they testified”).

Coy v. Iowa and other decisions confirm that a required element of effective

cross-examination is that the jury can observe the witness’s demeanor while she is

responding to defense counsel’s questions. For example, the Coy opinion refers

to “the importance of the right to live, oral cross-examination.” Coy, 487 U.S. at

1018, n.2. Thus, the Court begins its analysis from the premise that crossexamination will be oral (with the witness’s answer and demeanor observed

contemporaneously).

Moreover, it is worthwhile to note that the “extraordinary

procedure” disallowed in Coy, which blocked the witness’s view of the defendant,

nevertheless allowed the jury to observe the witnesses’ demeanor as they reacted to

each of the questions posed by defense counsel. Id. at 1020. Indeed, the core

holding of Coy – that the defendant has the right to meet his accuser face-to-face –

is premised on the assumption that the trier of fact will observe this meeting and

scrutinize the witness’s responses. See, e.g., id. at 1019 (“even if the lie is told, it

will often be told less convincingly”).

This Court’s decision in California v. Green further demonstrates that a

necessary element of effective confrontation is an immediate response by the

witness so that the jury may judge her credibility in the context of a particular

answer. In Green, the Court ruled that a testifying witness’s prior out-of-court

statement may be admitted as substantive evidence of the defendant’s guilt.

Green, 399 U.S. at 152, 164. However, for the out-of-court statement to be

admissible, “the declarant [must be] testifying as a witness and subject to full and

effective cross-examination.” Id. at 158. The Court considered the crossexamination full and effective because the jury could “judge [the witness] by his

demeanor upon the stand and the manner in which he gives his testimony whether

he is worthy of belief.” Id. at 158 (quoting Mattox, 156 U.S. at 242-43)

(emphasis added); see id. at 160 (referring to cross-examination as “giving the jury

a chance to observe and evaluate [the witness’s] demeanor as he either disavows or

qualifies his earlier statement”).

Common sense aligns with the words of this Court’s decisions: effective

cross-examination requires that the jury’s observation of the witness’s demeanor

be precisely contemporaneous with the witness’s answer. One evaluates a

speaker’s credibility by observing her demeanor as she speaks, not at some other

time. The manner in which the witness comports herself even a few seconds after

answering a critical question cannot reliably be connected to that answer. And

critically, under the AEDPA, this disassociation between answer given and

demeanor observed patently falls short of what the Court required in Craig. See

Craig, 497 U.S. at 846, 851, 857; § 2254(d)(1).

In addition to A.S.’s cross-examination not permitting the jury to observe

A.S.’s demeanor contemporaneously with hearing her answers, the written format

of her examination constitutes an unreasonable application of Craig for a separate

yet closely related reason. The jury could not gain meaningful insight into A.S.’s

credibility by observing her demeanor as she wrote her answers on a piece of

paper. The evaluation of witness demeanor required by Craig presupposes that

the jury is watching the witness as she gives spoken answers (as was the case with

the video examination procedure the Court approved).

See Craig, 497 U.S. at

841-42.

As this Court explained in Craig (and in Green), “[t]he primary object of

the” Confrontation Clause “was to prevent depositions or ex parte

affidavits … being used against a prisoner in lieu of a personal examination and

cross-examination of the witness ….” Craig, 497 U.S. at 845 (quoting Mattox,

156 U.S. at 242-43); see Green, 399 U.S. at 157-58. Here, of course, A.S. was

physically present in court. But the procedure adopted by the state court

precluded A.S.’s presence from serving the constitutional function required by this

Court’s precedent: that she give “testimony” while the jury observes her demeanor.

Id. Instead, A.S. was permitted, in essence, to give witness by affidavit while she

sat in court.

Allowing the declarant to draft her affidavit (or interrogatory) in front of a

jury does precious little to allay the Founder’s concerns with respect to criminal

trials conducted entirely by writing, that is, without “the witness [being] present at

trial to repeat his story and to explain or repudiate any conflicting prior stories

before the trier of fact.” Green, 399 U.S. at 157; see id. at 156. Critically, the

witness’s explanation or repudiation must be given in the form of testimony: “that

they may look at him, and judge by his demeanor upon the stand and the manner in

which he gives his testimony whether he is worthy of belief.” Craig, 497 U.S. at

845 (quoting Mattox, 156 U.S. at 242-43). Put simply, “testimony” as the term is

used in Craig, Coy, and Green, is by definition oral. See id. at 851, 857; Coy, 487

U.S. at 1018-1020 & n.2 (“the right to live, oral cross-examination”); Green, 399

U.S. at 157-58, 160; cf. Blackledge v. Allison, 431 U.S. 63, 82 n.25 (1977) (“When

the issue is one of credibility, resolution on the basis of affidavits can rarely be

conclusive”).

A third reason that Petitioner’s trial was inconsistent with any reasonable

application of Craig and its antecedents is that the presiding judge recited A.S.’s

written answers to the jury. Even if a reasonable application of Craig could

permit a witness to answer cross-examination in writing, with the result that the

jury was unable to observe her demeanor at the specific point when she answered

each question from the defense, there would still be an unreasonable application

here because of the role assumed by the trial judge.

It is a well-settled proposition that a trial judge has tremendous influence

over the jury. “The influence of the trial judge on the jury is necessarily and

properly of great weight, and jurors are ever watchful of the words that fall from

him.” Bollenbach v. United States, 326 U.S. 607, 612 (1946) (quoting Starr v.

United States, 153 U.S. 614, 626 (1894)). Not only the judge, but even a lesser

court official such as the bailiff “beyond question carries great weight with a jury.”

Parker v. Gladden, 385 U.S. 363, 365 (1966) (per curiam). In addition to

occupying an exalted position in the eyes of the jurors, the presiding judge also

plays a unique role – in both the jurors’ perception and in fact – as the impartial

arbiter of a partisan contest. See Quercia v. United States, 289 U.S. 466, 469-472

(1933); Glasser v. United States, 315 U.S. 60, 82 (1942) (“Upon him rests the

responsibility of striving for that atmosphere of perfect impartiality”).

Contravening these fundamental principles, the California Court of Appeal

held that the presiding judge reciting A.S.’s written answers to the jury was “no

different” than a witness being assisted by an interpreter.

App. C at 10-11. This

was objectively unreasonable. Surely, there can be no reasonable debate that a

jury will be much more influenced by the judge’s words and actions than by those

of an interpreter. The judge’s roles as both neutral arbiter and preeminent

authority figure do not allow the judge to recite a key witness’s answers on crossexamination without infringing upon the defendant’s Sixth Amendment right to

“cross-examination [that] permits the jury … to observe the demeanor of the

witness in making his statement, thus aiding the jury in assessing his credibility.”

Craig, 497 U.S. at 846 (quoting Green, 399 U.S. at 158). No jury could be

expected to apply the same scrutiny to statements coming from the presiding judge

as it would the same words spoken by a witness; such an arrangement could not

help but bolster the witness’s credibility.

See Bollenbach, 326 U.S. at 612

(quoting Starr, 153 U.S. at 626).

Additionally, even if the jurors did succeed in appropriately scrutinizing the

words of the witness as they flow from the judge’s mouth, what could they learn?

Certainly not much from the witness’s demeanor, because her comportment while

the judge speaks would reveal little about the veracity of her previously-written

answer. See Craig, 497 U.S. at 846 (quoting Green, 399 U.S. at 158).

Finally, in deeming the judge’s recitation of A.S.’s written answers to be of

no constitutional significance, the California Court of Appeal unreasonably applied

Craig by ignoring the implications of the judge’s critical role as the impartial

arbiter of a partisan contest. See Quercia, 289 U.S. at 471-72. That a jury trial is

conducted as a contest of partisans goes to the foundation of the Confrontation

Clause, as is reflected by its name. See Coy, 487 U.S. at 1015-16; Craig, 497

U.S. at 845. The Craig Court repeatedly stressed that the “central concern” of the

right to effective confrontation – with its elements of “oath, [contemporaneous]

cross-examination, and observation of the witness’ demeanor” – is to ensure that

“testimony is both reliable and subject to rigorous adversarial testing.”

Craig,

497 U.S. at 845, 851. The “elements of effective confrontation” thus safeguard

the “reliability and adversariness” that distinguishes a fair trial “from the

undisputed prohibition of the Confrontation Clause: trial by ex parte affidavit or

inquisition.” Id. at 851 (citing Mattox, 156 U.S. at 242, and Green, 399 U.S. at

179); see id. at 846 (“ensuring … the rigorous adversarial testing that is the norm

of Anglo-American criminal proceedings”); see also id. at 845, 847, 849, 857.

Here, from the perspective of the lay jurors, the adversarial nature of the

proceedings (with its corollary of an impartial judge) could not be preserved with

the judge reciting the answers of the prosecution’s star witness on crossexamination. This could not help but render the jury’s credibility determination

less reliable. See Craig, 497 U.S. at 845-46. The judge taking on the role of

A.S.’s “interpreter” (App. C at 10-11) likely created a risk that the jurors would

view the court as favoring the complaining witness over the defendant. By

contrast, the video examination procedure approved in Craig did not carry any risk

of conveying an appearance of judicial partiality: the jurors and the judge watched

the examination on television together from the courtroom.

Id. at 841-42. In

this regard, Petitioner notes that the trial court here did not give a cautionary

instruction to dispel any misperceptions of favoritism by the court. Most

importantly, under section 2254(d)(1), what took place here is wholly incompatible

with the Craig Court’s observation of “the strong symbolic purpose served by

requiring” the adverse witness (not the presiding judge) “to testify in the accused’s

presence.” Craig, 497 U.S. at 847.

In conclusion, the extraordinary procedure adopted by the California trial

court and approved by the Court of Appeal constitutes an unreasonable application

of Maryland v. Craig and its antecedents by patently failing to fulfill the required

elements of effective confrontation, for three closely related but independently

sufficient reasons: (1) the procedure did not preserve “contemporaneous crossexamination” that would have allowed the jury to observe A.S.’s demeanor as she

gave her answers; (2) A.S. giving her answers in writing was antithetical to the

Confrontation Clause as interpreted by Craig, Coy, and Green; and finally, (3) the

role taken by the presiding judge, by reciting A.S.’s written answers to the jury,

prevented the jurors from evaluating A.S.’s credibility in a manner consistent with

“the rigorous adversarial testing” guaranteed by the Confrontation Clause.

Thus, for the several reasons discussed above, the procedure adopted here by

the California courts patently failed to meet the “elements of effective

confrontation” required by Craig. Failing to meet these elements renders the

procedure unconstitutional, such that no finding by the trial court can support its

application. See Craig, 497 U.S. at 851, 855 (explaining that state may employ a

“special procedure” only where it both preserves the elements of effective

confrontation and is premised upon a “finding of necessity”).

In the subsection that follows, Petitioner will show that, even if the state

court’s special procedure satisfied Craig’s elements of confrontation, the state trial

court’s “findings” cannot reasonably be considered to comply with the Court’s

holding in Craig.

Even If the “Special Procedure” Adopted by the Trial

Court Satisfied the Elements of Effective Confrontation

Required by Craig, the State Court Nonetheless Patently

Violated Craig by Failing to Hold a Hearing or Make the

Required Findings.

The Craig Court held that trial courts were permitted to employ “a special

procedure” to facilitate the cross-examination of a child witness, “where necessary

to further an important state interest.”

Craig, 497 U.S. at 852, 855. As

discussed at length above, any alternative procedure must comport with the

“elements of effective cross-examination.” Id. at 851. Where these elements are

met, the procedure may be employed “if the State makes an adequate showing of

necessity.” Id. at 855.

“The requisite finding of necessity must of course be a case-specific one:

The trial court must hear evidence and determine whether use of the … procedure

is necessary to protect the welfare of the particular child witness who seeks to

testify.” Id. Additionally, the court must “find that the child witness would be

traumatized, not by the courtroom generally, but by the presence of the defendant.”

Id. at 856. The Court emphasized that it must be “the presence of the defendant

that causes the trauma.” Id.

Here, the California Court of Appeal concluded that no findings were

required, but opined that the trial court would have met any such requirement by

observing that A.S. appeared to be traumatized, along with noting “the nature of

the alleged crimes, and the victim’s age.” ER 24. The Court of Appeal was

referring to the following statement by the trial court:

from when she entered the courtroom, the witness was extremely emotional.

She was crying when she first entered, and there were many times that she

started crying, especially when she was asked questions specifically related

to the alleged offense. She had great difficulty.

The Court took into consideration the age of the witness now, the age of the

witness when these offenses allegedly occurred, the nature of the charges,

the violent nature of the charges, the sexual nature of the charges, what I

observed about the witness, to allow this process by which she could write

the answers down.

ER 96-97.

These observations by the trial court do not even arguably satisfy the

requirements of Craig. First, the court did not hold a hearing to take “evidence

and determine whether use of the [special procedure] is necessary to protect the

welfare of the” minor witness. Craig, 497 U.S. at 855. No other alternative

procedures were considered, such as conducting a video examination like that

approved in Craig. Instead, the court merely observed that the witness was

“extremely emotional” and having difficulty testifying.

Second, and most importantly, the trial court did not find that it was the

“presence of the defendant that cause[d] the trauma,” as opposed to A.S. being

upset “by the courtroom generally.”

Id. at 856. The court could easily have

made this determination by examining A.S. outside of the jury’s presence, but it

did not bother to do so. In this regard, it is far from clear that A.S. was actually

upset by the presence of the defendant. When asked by the prosecutor if she was

having difficulty testifying because she was scared of Petitioner, A.S. replied that

she was not:

And you told us numerous times today that you can’t do this?

Yes.

Okay. Is it because you are embarrassed, or is it because you are

scared?

I just don't want to talk about it.

*** *** ***

Why don’t you want to talk about it, though? Is it because you are

embarrassed?

Yeah.

Are you afraid of hurting your sister Jennifer?

No.

Are you afraid of the defendant?

No. I just don’t want to think about it. I don’t want to talk about it.

ER 75-76.

Thus, the trial court obviously failed to make the requisite finding “that the

child witness would be traumatized, not by the courtroom generally, but by the

presence of the defendant.” Craig, 497 U.S. at 856; see id. at 860; see also

United States v. Moses, 137 F.3d 894, 898-99 (6th Cir. 1998) (reversing conviction

under Craig, where district court allowed special procedure despite witness stating

she was not afraid of defendant).

Moreover, this failure violates a core principle

of Craig’s holding: Where the child witness only needs protection “from

courtroom trauma generally,” a less restrictive accommodation will adequately

serve the state’s interest.

See id. at 856.

Accordingly, for the several reasons set forth above, the California Court of

Appeal’s decision constitutes an unreasonable application of Maryland v. Craig

and the cases upon which it relies.

See § 2254(d)(1). Because the Ninth Circuit

Court of Appeals affirmed the denial of Petitioner’s habeas corpus petition in a

manner that erroneously approved of the state court’s unreasonable application of

this Court’s precedents governing the Sixth Amendment’s Confrontation Clause

and that clause’s guarantee of an opportunity for effective cross-examination, the

instant Petition for Writ of Certiorari should be granted.

CONCLUSION

For the reasons set forth above, the Petitioner respectfully requests that a writ

of certiorari issue to review the judgment of the Ninth Circuit Court of Appeals

affirming the denial of his petition for writ of habeas corpus in order to correct the

error of constitutional magnitude by that court, and the violation of Petitioner’s

Sixth Amendment right to confrontation by the courts of California.

Dated: December 20, 2018

Respectfully submitted,

____________________

GEOFFREY M. JONES

Attorney for Petitioner

Richard Steven Johnson, Jr.

No. ___________

In the Supreme Court of the United States

October 2019 Term

__________________________________________

STEVEN RICHARD JOHNSON, Jr.,

Petitioner,

NEIL MCDOWELL, Warden,

Respondent.

________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

APPENDIX

to Petition for Writ of Certiorari

Geoffrey M. Jones

Counsel of Record, appointed under the

Criminal Justice Act of 1964

769 Center Blvd., PMB No. 162

Fairfax, CA 94930

Tel: (415) 517-3569

email: gffjones@comcast.net

Attorney for Petitioner

Steven Richard Johnson, Jr.

APPENDIX A

Unpublished Opinion of the United States Court of Appeals for the Ninth Circuit

Filed October 24, 2018

Case: 17-15761, 10/24/2018, ID: 11058351, DktEntry: 42-1, Page 1 of 3

FILED

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

OCT 24 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD STEVEN JOHNSON, Jr.,

Petitioner-Appellant,

No.

17-15761

D.C. No. 2:16-cv-00745-GGH

MEMORANDUM*

NEIL MCDOWELL, Warden,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of California

Gregory G. Hollows, Magistrate Judge, Presiding

Argued and Submitted October 10, 2018

San Francisco, California

Before: McKEOWN, W. FLETCHER, and BYBEE, Circuit Judges.

Richard Johnson appeals the district court’s denial of his petition for writ of

habeas corpus. The district court’s denial of a habeas petition is reviewed de novo.

See Campbell v. Rice, 408 F.3d 1166, 1169 (9th Cir. 2005) (en banc). We have

jurisdiction under 28 U.S.C. § 2253 and we affirm.

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

Case: 17-15761, 10/24/2018, ID: 11058351, DktEntry: 42-1, Page 2 of 3

Because Johnson filed his federal habeas petition after the effective date of

the Anti–Terrorism and Effective Death Penalty Act (“AEDPA”), he can prevail in

federal court only if he can show the “last reasoned” state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or (2) resulted in a decision that was

based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.

28 U.S.C. § 2254(d); Vasquez v. Kirkland, 572 F.3d 1029, 1035 (9th Cir. 2009). If

“fairminded jurists could disagree” about whether the state court correctly applied

Supreme Court precedent, this court cannot grant relief under § 2254(d)(1).

Harrington v. Richter, 562 U.S. 86, 102 (2011).

The California Supreme Court denied Johnson’s petition for review, so the

“last reasoned” decision in this case was from the California Court of Appeal on

January 27, 2015. On direct appeal, Johnson argued that the manner in which the

minor victim of his alleged sexual assault, A.S., testified against him at trial

violated the Confrontation Clause. After giving most of her testimony on direct

examination verbally, A.S. gave the remainder of her testimony, on cross and

redirect examination, by listening to counsel’s questions, writing her responses on

a pad of paper, and then handing the pad to the trial judge, who read the answers

aloud in what the judge described as an “emotionless” manner. The California

Case: 17-15761, 10/24/2018, ID: 11058351, DktEntry: 42-1, Page 3 of 3

Court of Appeal held that there was no Confrontation Clause violation either by

A.S. turning her back on defense counsel while writing her responses or by A.S.

responding to questions in writing.

Johnson argues that the California Court of Appeal unreasonably applied

Coy v. Iowa, 487 U.S. 1012 (1988), and Maryland v. Craig, 497 U.S. 836 (1990).

We disagree. The procedure used here, while unusual, presents different

constitutional questions than the procedures addressed in Coy and Craig. Those

cases were concerned with when and how a traumatized child witness can testify

outside the presence or view of the defendant—from behind a screen and on oneway closed-circuit television, respectively. Here, A.S. was at all times visible to

the defendant, defense counsel, and the jury. We do not express a view on the

constitutionality of the procedure employed to obtain A.S.’s testimony. However,

we hold that it was not unreasonable, within the meaning of § 2254(d)(1), for the

California Court of Appeal to hold that the procedure satisfied the Confrontation

Clause, as interpreted by the United States Supreme Court.

AFFIRMED.

APPENDIX B

District Court’s Order Denying Petition for Writ of Habeas Corpus

Filed March 29, 2017

Case 2:16-cv-00745-GGH Document 17 Filed 03/29/17 Page 1 of 14

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

RICHARD STEVEN JOHNSON,

Petitioner,

ORDER1

No. 2: 16-cv-0745 GGH

NEIL McDOWELL, Warden

Respondent.

Introduction and Summary

Petitioner was convicted of performing a lewd act on a child under the age of 14 by force

or violence combined with a kidnapping which facilitated the sex crime. The jury could not come

to a verdict on forcible rape and other charges. He was sentenced to 25 years to life.

To a scientific certainty, petitioner committed some type of sex act with the victim on the

day of the crime. This fact is not in dispute here, and does not depend upon the testimony of the

victim. Rather, petitioner focuses his petition on the force or violence aspect and the kidnapping

which was dependent on the victim’s testimony. He asserts that the trial court’s permitting the

then seventeen year old victim/witness to testify turned away from himself and defense counsel,

The case is before the undersigned as presider pursuant to 28 U.S.C. section 636(c).

Case 2:16-cv-00745-GGH Document 17 Filed 03/29/17 Page 2 of 14

and the trial court’s permitting the victim/witness to write her answers on cross-examination,

which were then read by the judge, violated his right of confrontation guaranteed by the Sixth

Amendment.2 Petitioner believes his right to confront the witness was violated per se and, in any

event, the trial court did not make required factual findings at an evidentiary hearing to allow the

victim/witness to testify as she did.

For the reasons given herein, the undersigned denies the petition.

Factual Background

The factual background is helpful to put the confrontation issue in perspective:

The Crime

The Prosecution’s Case

In February 2009, 13–year–old A.S. lived at home with her mother S.S.

and some of her siblings. Her sister J.S. lived in a separate apartment with her

boyfriend—defendant—and their baby daughter.

On February 28, 2009, defendant asked A.S. to go to the store with him and

buy tampons for J.S. He did not want to buy tampons because he was a man. He

drove A.S. to Foods Co., where she bought tampons for defendant.

Rather than taking her home, defendant drove A.S. to a place she did not

know. The place was about 15 minutes from the store and had a parking lot and

buildings that looked like warehouses. A.S. felt she could not escape because there

was no one else in the area. After parking, defendant got out of the car, opened the

passenger door, and ordered A.S. into the trunk. A.S. got out of the car and

defendant pushed her into the trunk.

Defendant drove the car for a “pretty long” time. She did not know where

she was when defendant stopped and opened the trunk. The place looked like a

forest and she could not get away. Defendant then sexually assaulted A.S. in the

back seat of the car. He told A.S. not to tell anyone and dropped her off near her

home. A.S. went to a friend’s house before going home.

S.S. became worried when A.S. did not return home after several hours. A.S.

said she was going with defendant; S.S. tried to call her after a few hours but got no

answer. S.S. knew something was wrong when A.S. finally returned home, as her

daughter’s clothes were torn and her hair was messed up. S.S. asked what was

Petitioner also couches his claims in terms of a Due Process Clause violation; however, the

confrontation issue is governed by the specific terms of the Sixth Amendment.

Case 2:16-cv-00745-GGH Document 17 Filed 03/29/17 Page 3 of 14

wrong; A.S. said, “Mom, he lied to me.” A.S. then told S.S. about the sexual assault,

after which S.S. called the police.

A.S. was taken to the hospital for a medical examination. An officer who

contacted her at the hospital found A.S. was crying and upset. She said defendant

picked her up at around 10:55 a.m., took her to Foods Co., and then later struck her

and forced her into the trunk of the car. Defendant had sex with her even though she

told him not to. He dropped her off at an elementary school rather than her home.

J.S. testified she did not ask defendant to buy her tampons that day. He was

supposed to pick up their daughter from S.S.’s home and return in time to take J.S.

to work. J.S. called defendant when he did not return; defendant said he was fixing

the car. She told an officer that defendant sounded “weird” and said he was out with

A.S. when she talked to him on the phone that day.

A.S. told the examining nurse practitioner that defendant sexually assaulted

her around noon that day. Defendant also backhanded her in the face and grabbed

her by the arm during the assault. The nurse saw A.S. had a laceration and bruise on

her elbow as well as dried blood in her nose. The gynecological exam found tearing

of the hymen indicating a penetrating injury with a large object; the injuries were

consistent with sexual assault.

A search of defendant’s car revealed a Foods Co. receipt for the purchase of

a box of tampons on February 28, 2009, at around 10:39 a.m. DNA taken from

A.S.’s vagina and panties matched defendant’s with probabilities of a random match

ranging from one in 340 trillion to one in 130 quintillion. DNA from a swab taken

from defendant’s penis matched A.S.’s DNA with probabilities of a random match

ranging from one in three million to one in 170 million. DNA swabs from a legal

pad in the back seat of defendant’s car, shorts found in the trunk, and from the trunk

itself matched A.S.’s with probabilities of a random match ranging from one in 300

quadrillion to one in 9 quintillion.

A.S. gave a special assault forensic evaluation interview on March 2, 2009.

A recording of the interview was played to the jury.

The Defense

A defense investigator interviewed A.S. on March 2, 2009. A.S. told the

investigator defendant tried to kiss her. She denied being in the trunk of the car, and

said sex may or may not have happened.

A nurse testifying as an expert in sexual assault examinations testified that

an examination cannot determine whether the sex was consensual. She opined that

the findings in this case could be consistent with consensual sex.

People v. Johnson, 2015 WL 365817 at * 1-2 (Cal. App. 2015).

Case 2:16-cv-00745-GGH Document 17 Filed 03/29/17 Page 4 of 14

II.

AEDPA Standards

As respondent points out, the key review standard is that supplied by AEDPA—whether

the Supreme Court has announced a rule which can be applied to this case, and if so, could

reasonable jurists could find as the Court of Appeal found: that no Confrontation Clause

violation took place which would even necessitate findings by the trial judge, and whether in any

event, the trial judge did make case specific findings.

The statutory limitations of federal courts’ power to issue habeas corpus relief for persons

in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to any claim

that was adjudicated on the merits in State court proceedings unless the adjudication

of the claim(1)

resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding.

As a preliminary matter, the Supreme Court has recently held and reconfirmed “that

§ 2254(d) does not require a state court to give reasons before its decision can be deemed to have

been ‘adjudicated on the merits.’” Harrington v. Richter, 562 U.S. 86, 98 (2011). Rather, “when

a federal claim has been presented to a state court and the state court has denied relief, it may be

presumed that the state court adjudicated the claim on the merits in the absence of any indication

of state-law procedural principles to the contrary.” Id. at 99, citing Harris v. Reed, 489 U.S. 255,

265 (1989) (presumption of a merits determination when it is unclear whether a decision

appearing to rest on federal grounds was decided on another basis). “The presumption may be

overcome when there is reason to think some other explanation for the state court's decision is

more likely.” Id.

The Supreme Court has set forth the operative standard for federal habeas review of state

court decisions under AEDPA as follows: “For purposes of § 2254(d)(1), ‘an unreasonable

Case 2:16-cv-00745-GGH Document 17 Filed 03/29/17 Page 5 of 14

application of federal law is different from an incorrect application of federal law.’” Harrington,

supra, at 101, citing Williams v. Taylor, 529 U.S. 362, 410 (2000). “A state court’s determination

that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could

disagree’ on the correctness of the state court’s decision.” Id. at 101, citing Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004).

Accordingly, “a habeas court must determine what arguments or theories supported or . .

could have supported[] the state court’s decision; and then it must ask whether it is possible

fairminded jurists could disagree that those arguments or theories are inconsistent with the

holding in a prior decision of this Court.” Id. at 102. “Evaluating whether a rule application was

unreasonable requires considering the rule’s specificity. The more general the rule, the more

leeway courts have in reaching outcomes in case-by-case determinations.’” Id. Emphasizing the

stringency of this standard, which “stops short of imposing a complete bar of federal court

relitigation of claims already rejected in state court proceedings[,]” the Supreme Court has

cautioned that “even a strong case for relief does not mean the state court’s contrary conclusion

was unreasonable.” Id., citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003).

The undersigned also finds that the same deference is paid to the factual determinations of

state courts. Under § 2254(d)(2) factual findings of the state courts are presumed to be correct

subject only to a review of the record which demonstrates that the factual finding(s) “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.” It makes no sense to interpret “unreasonable” in

§2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) – i.e., the

factual error must be so apparent that “fairminded jurists” examining the same record could not

abide by the state court factual determination. A petitioner must show clearly and convincingly

that the factual determination is unreasonable. See Rice v. Collins, 546 U.S. 333, 338 (2006).

The habeas corpus petitioner bears the burden of demonstrating the objectively

unreasonable nature of the state court decision in light of controlling Supreme Court authority.

Woodford v. Viscotti, 537 U.S. 19 (2002). Specifically, the petitioner “must show that the state

court’s ruling on the claim being presented in federal court was so lacking in justification that

Case 2:16-cv-00745-GGH Document 17 Filed 03/29/17 Page 6 of 14

there was an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington, supra, at 102. “Clearly established” law is law that has

been “squarely addressed” by the United States Supreme Court. Wright v. Van Patten, 552 U.S.

120, 125 (2008). Thus, extrapolations of settled law to unique situations will not qualify as

clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76 (2006) (established law not

permitting state sponsored practices to inject bias into a criminal proceeding by compelling a

defendant to wear prison clothing or by an unnecessary showing of uniformed guards does not

qualify as clearly established law when spectators’ conduct is the alleged cause of bias injection).

The established Supreme Court authority reviewed must be a pronouncement on constitutional

principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules

binding only on federal courts. Early v. Packer, 537 U.S. 3, 9 (2002).

The state courts need not have cited to federal authority, or even have indicated awareness

of federal authority in arriving at their decisions. Id. at 8. Where the state courts have not

addressed the constitutional issue in dispute in any reasoned opinion, the federal court will

independently review the record in adjudication of that issue. Independent review of the record is

not de novo review of the constitutional issue, but rather, the only method by which we can

determine whether a silent state court decision is objectively unreasonable.” Himes v. Thompson,

336 F.3d 848, 853 (9th Cir. 2003).

Finally, if the state courts have not adjudicated the merits of the federal issue, no

AEDPA deference is given; the issue is reviewed de novo under general principles of federal law.

Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2012). However, when a state court decision on a

petitioner’s claims rejects some claims but does not expressly address a federal claim, a federal

habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the

merits. Johnson v. Williams, __U.S.__, 133 S.Ct. 1088, 1091 (2013).

III. The Confrontation Clause Issue

A. Facts Regarding Confrontation or Lack Thereof

As is nearly always the case, The Court of Appeal has concisely, yet completely, set out

the facts pertinent to the issues in this case:

Case 2:16-cv-00745-GGH Document 17 Filed 03/29/17 Page 7 of 14

A.S.’s Testimony

The direct examination of A.S. began with general questions about her and her

family, which she answered without a problem. She then admitted not wanting to

testify, and having said so to the prosecutor in an e-mail. After A.S. answered

general questions about her sister J.S. and defendant, the prosecutor asked her

about the events surrounding the sexual assault. A.S. answered some of the

questions, but to others, she gave replies like, “I can’t do this” or, “Can I leave?”

She soon asked to take a break, and the trial court ordered a 15–minute recess.

During the recess, defense counsel moved for a mistrial based on a violation of

defendant’s right to due process. In support of the motion, counsel relied on A.S.

being brought into the courtroom through a back door rather than the normal

means of entry. Counsel noted that A.S., who was sitting next to a victim’s

advocate, cried during most of her testimony and continually stated that she did

not want to testify. Admitting that these facts may not individually support a due

process violation, counsel asserted that their cumulative effect deprived defendant

of his right to a fair trial. The trial court disagreed and denied the motion.

When examination resumed, A.S. was able to answer questions about her sister’s

car and her desire to get a job, without any problem. As questioning moved to the

events on the day of the sexual assault, she answered some questions, but others

were answered with statements like, “I can’t do this, I told you,” or, “I don’t

remember.” When the prosecutor asked A.S. whether she got in the trunk of

defendant’s car on the day of the incident, she replied, “I can’t do this. I can’t

testify. Can I leave?” The prosecutor switched to asking A.S. about her reluctance

to testify. She replied that it was because she was embarrassed and not because she

was afraid of hurting her sister.

A.S. was initially able to answer the prosecutor’s questions as the examination

went into the events after the sexual assault. When the prosecutor again asked her

about the events leading up to the sexual assault, A.S. increasingly answered with,

“I don’t remember” or, “I don’t want to talk about it.” The trial court called a

break after she answered consecutive questions with, “Can I leave?” and, “I can’t

do this.”

During the break, defense counsel said A.S. had replied she did not want to talk

about it 12 to 14 times. Counsel renewed the due process objection, which the trial

court denied.

Following the recess, the prosecutor asked to have A.S. give written answers

during the examination. The trial court agreed. During the rest of A.S.’s direct and

cross-examination, she gave her answers in writing, which were then read by the

trial court.

The defense later renewed the objection. Defense counsel asserted A.S. effectively

chose which questions she was going to answer before she wrote the answers

down by stating she did not want to be there more than 14 times in reply to

Case 2:16-cv-00745-GGH Document 17 Filed 03/29/17 Page 8 of 14

questions. When A.S. wrote down her answers, her back was turned to counsel and

the jury might not have been able to see her and assess her credibility. Counsel

additionally asserted that the act of writing the answers to her cross-examination

rather than facing counsel and answering prevented effective cross-examination.

The trial court found the defense had ample opportunity to cross-examine A.S.,

and she answered every one of the defense questions. The court stated that A.S.

was “extremely emotional” before she was allowed to write down her answers.

A.S. “was crying when she first entered,” and was especially emotional “when she

was asked questions specifically related to the alleged offense[s].” In deciding to

allow A.S. to give written answers, the trial court relied on “the age of the witness

now, the age of the witness when these offenses allegedly occurred, the nature of

the charges, the violent nature of the charges, the sexual nature of the charges,”

and the court’s observation of A.S.

The trial court additionally noted that it read the answers in a “speakable” but

“emotionless” manner. A.S. did turn her back to defendant after the last break, and

turned away from counsel when she wrote her answers. The trial court found this

was part of A.S.’s demeanor that the jury could take into account. Denying

defendant’s motion, the trial court concluded by stating, “these slight deviations

from regular practice were necessary to facilitate taking of the evidence and to

facilitate the search for the truth, which this process is all about.”

People v. Johnson, at * 2-3.

B. The Court of Appeal Ruling

In treating each issue separately, i.e., the turning of the back issue separately from the

writing of the answers and the reading of those answers by the trial judge, the Court of Appeal

discussed the two primary Supreme Court cases ruling on situations where the confrontation

allowed at trial was less than that usually had. In Coy v. Iowa, 487 U.S. 1012 (1988), the Court

found that placing a screen between the defendant and the complaining witnesses violated the

defendant’s confrontation rights. Stressing the importance of confrontation as the norm, the

Court found that a defendant was “guaranteed” a face-to-face meeting in court with the

complaining witnesses. Id. At 1020. As the Court of Appeal stressed however, the Confrontation

Clause did not require the witness to look at the defendant and/or defense counsel; the witness

was free to look away, or at the ground, or elsewhere. Id. at 1021.

In Maryland v. Craig, 497 U.S. 836, 857 (1990), the Court permitted a child to testify via

a one-way closed circuit television (the defendant could see the child, but not vice versa). The

Case 2:16-cv-00745-GGH Document 17 Filed 03/29/17 Page 9 of 14

general rule to be applied was:

“The requisite finding of necessity to depart from face-to-face confrontation must

be case specific; the court must hear evidence and determine the procedure is

necessary to protect the welfare of the particular child witness. (Id. at p. 855 [111

L.Ed.2d at p. 685].) The court must find the child witness would be traumatized by

the presence of defendant and that such emotional distress is more than de

minimis. (Maryland at p. 856 [111 L.Ed.2d at p. 685] (1990)].)

People v. Johnson at *4.

The Court of Appeal looked to similar examples of confrontation issues in California case

law to assist in determining whether the trial judge had erroneously applied the general rules set

forth in Coy and Craig. In People v. Sharp, 29 Cal. App 4th 1772 (1994), disapproved on other

grounds, People v. Martinez, 11 Cal. 4th 434, 452 (1995), a prosecutor was permitted to be so

situated that the defendant’s view of the witness was somewhat obstructed (limited to a side and

back of the witness” head. People v. Gonzalez, 54 Cal. 4th 1234 (2012), involved a situation

where a the testifying witness, an eight year old boy who had presumably observed the murder of

a sibling, was permitted at preliminary hearing to sit at an angle to the defendant in view of the

questioning counsel; the testimony was videotaped and permitted to be played at the trial. The

Court of Appeal herein likened its situation to simply one akin to the situation where the

victim/witness purposefully refused to look at the petitioner. People v. Johnson at *5. The Court

of Appeal then turned to the issue of having the victim/witness write her answers in lieu of

verbally responding, and then having the trial judge read those answers in a “speakable” yet

“emotionless” manner. This procedure was likened (citing state cases) to situations where a

witness was compelled to utilize an interpreter either because of a disability or the inability to

understand and speak English. The judge was acting, more or less, just like another type of

interpreter. Id.

C. Application to This Case

Thus, for AEDPA purposes, the Supreme Court has fashioned a general rule to be applied

in each individual case depending on the circumstances of that case. It is to be stressed that in

applying the general rule, the undersigned is not looking for the “best” or “most correct” answer

Case 2:16-cv-00745-GGH Document 17 Filed 03/29/17 Page 10 of 14

to the victim/witness predicament that faced the trial court. Rather the undersigned emphasizes

again, that the only issue here is whether the Court of Appeal (and hence the state supreme court)

decided the issues in such a way that reasonable jurists could not agree with those

findings/holdings. And, as set forth in the AEDPA standards, application of a general rule to case

specific situations requires that greater leeway be given to the state courts.

In assessing the AEDPA reasonableness, the undersigned initially has difficulty with the

treating of each confrontation issue separately, i.e., the back turning, and then the writing of

answers verbally read by the trial judge, instead of reviewing the entire range of issues as they

would have collectively impacted the confrontation issue. This is so because the impact of the

procedures was a collective impact on the jury and the petitioner—not one with singular and

separate impact.3 The jury was forced to interpret the witness’s demeanor not only with an

obstructed view of the witness, but also without hearing the witness’s voice with all its different

credibility indicia, e.g., hesitating voice, emotion laden answers, evasiveness, inability to

formulate efficient answers to questions which should have been quickly answered, and the like.

Rather, the procedure here was slow, even ponderous, with each question awaiting a writing of

the answer from a view obstructed witness, and then the reading of the answer by the judge with

the logical inference that the jury would be focusing on the judge as the answers were verbally

given. The minimization of the collective issue by its division was not a reasonable way to assess

the confrontation problem.

Moreover, it is not reasonable to conclude that the confrontation circumstances here were

merely a “slight deviation” from the norm in most cases.

This does not end the issue, however, because an assessment must be made of the ultimate

AEDPA reasonableness even viewing the issues collectively. Upon review of all the

The undersigned agrees with the Court of Appeal that if viewed singularly, the turning of one’s

back to the defendant and/or counsel is probably not a violation of the Confrontation Clause. See

Bailey v. Woodford, 2010 WL 4702348 (C. D. Cal. 2010) (back was turned to defense counsel

and defendant); Spencer v. Yates, 2011 WL 2118862 (E.D. Cal. 2011) (left side of face was

shielded from view of defendant). The more problematic issue, when viewed singularly was the

witness’ writing of answers to the questions and then having those answers read by the judge

instead of an anonymous court functionary.

Case 2:16-cv-00745-GGH Document 17 Filed 03/29/17 Page 11 of 14

circumstances, the undersigned cannot find the Court of Appeal decision AEDPA unreasonable.

First, the parties have not cited, and the undersigned is not aware of, on point Supreme

Court cases dealing with the collective circumstances.4 Therefore, the conclusion of the Court of

Appeal holding that no Confrontation Clause violation took place is given even greater leeway in

an already very deferential AEDPA setting.

Moreover, the jury had seen for some time the verbal answers of the defendant--

emotional and evasive as they were. These responses and the manner in which they were made,

may well have stuck in the jury’s mind when the judge was reading the answers, some of which,

according to defense counsel were also similarly very evasive. If the entire testimony had been

written and read, the outcome here might well be different.

Also, previous statements that the victim/witness made, when the criminal event was fresh

in the victim’s mind—and not necessarily the statements made four years afterwards by a then

reluctant child, witness, were most probably the more important evidence before the jury.

Importantly, the trial judge did make reasonable findings concerning the procedures he

utilized, and his certain observation of the witness turning her back, given the circumstances.

Although problematic, the procedures were thought out, and the trial judge was faced with a

difficult situation.

Finally, for all of the asserted confrontation errors, at least the witness was in court,

visible to the jury, and not in the sterilized atmosphere of a sound and view proof room (from the

witness’ standpoint) which would have been the case had one-way closed circuit television been

utilized as a means to calm the witness.

The undersigned has reviewed petitioner’s cited case of People v. Murphy, 107 Cal. App.

4th 1150 (2003). Of course, this case does not bind the undersigned in this AEDPA context, nor

is it binding precedent even if this state case correctly analyzed the Supreme Court precedents,

and the appellate court in this case was in error. Nevertheless, it is useful for purposes of

The undersigned has not found lower court cases with very similar factual collective

circumstances.

Case 2:16-cv-00745-GGH Document 17 Filed 03/29/17 Page 12 of 14

persuasive analysis. In this case, a very distraught adult witness was found by the trial court to be

hyperventilating and sobbing and making noises which made hearing her testimony very difficult.

The prosecution told the judge (no evidence was taken) that the witness was disturbed at seeing

the defendant. The trial court determined that the interests of justice were the main concern, and

such warranted the placing of a plexi-glass screen, a type of one-way glass which enabled the

defendant to view the witness, but not vice-versa.

The Murphy appellate court found fault with the trial judge’s actions after review of the

Supreme Court precedents discussed above. The major problems found were associated with the

fact that this was an adult, not a child witness, and that the trial court had not taken evidence to

ferret out the cause of the undoubted problems that the witness was having. The Murphy case is

distinguishable from the case at bar for those issues. However, like the case here, the appellate

court did not believe that the screen was simply a slight deviation from normal confrontation in

court. Like the case here, it was evident in Murphy that the entirety of the witness testimony had

not taken place behind the plexi-glass.

This case gives the undersigned some doubt about his conclusions, even in the AEDPA

context. Moreover, the victim witness here claimed to be “embarrassed” by the events

perpetrated against her—not “traumatized” by petitioner’s presence at trial. It is perhaps an open

question whether embarrassment could be equated with traumatization. Nevertheless, the

undersigned has not been cited cases which find that such is not the case; in any event it is not

AEDPA unreasonable to so find. Even the Maryland v. Craig court found traumatization and

embarrassment to be the same, at least in portions of the opinion. “The critical inquiry in this

case, therefore, is whether the use of the procedure is necessary to an important State interest…

We have of course recognized that a State’s interests in ‘the protection of minor victims of sex

crimes from further trauma and embarrassment’is a ‘compelling’one.” Maryland v. Craig, 497

U.S. at 852 (emphasis added). Moreover, in analogous circumstances, “embarrassment” has been

a sufficient factor to modify confrontation rights. See Graham v. Addison, 304 Fed. Appx. 670

*2 (10th Cir. 2008); LaChappelle v. Moran, 699 F.2d 560, 564-565 (1st Cir. 1983).

Case 2:16-cv-00745-GGH Document 17 Filed 03/29/17 Page 13 of 14

As noted above, Murphy involved an adult witness. Although the “child” in this case was

17 years old, the trial judge thought she was still a child in need of some assistance in testifying.

Moreover, testimony concerning embarrassment by the victim/witness in the case at bar was

elicited by the prosecution; the facts were not simply told to the judge by the prosecutor. And,

there is no requirement that the judge actually does the questioning, nor is there a requirement for

a formal evidentiary hearing. Further, the victim/witness’ conduct was evidence itself observable

to the judge. Repeating the facts at evidentiary hearing of what was clearly evident at trial would

serve no purpose.

At the risk of unnecessary repetition, the point here is not whether petitioner’s appellate

court was incorrect, but whether it was so unreasonably incorrect that an AEDPA remedial

violation took place. The undersigned ultimately cannot go that far.

Even if the undersigned is giving too much AEDPA deference herein to the state courts on

the violation issue, and even if there were a Confrontation Clause violation, the undersigned must

still assess whether the error had a substantial and injurious effect on the verdict. Merolillo v.

Yates, 663 F.3d 444, 454 (9th Cir. 2011), holding that the Brecht v. Abrahamson, 5 analysis must

be applied to an alleged Confrontation Clause violation. Much of the undersigned’s reasoning set

forth above would also apply to this analysis. And, importantly, there was not a scintilla of doubt

that petitioner had sex with a thirteen year old girl—a serious crime in its own right. This is not a

case where the sex act itself was in question, just the means by which it was carried out. In this

regard, the jury was certainly entitled to believe the victim witness’ damning statements made

right after the events in question, e.g., that the victim was forced into the trunk of the car and so

forth, as opposed to the after-the-fact emotional, pressured or contrived, but contradictory,

statements/actions of the victim/witness given to defense investigators and others months or years

after the criminal event. The fact that the victim/witness in this case was equivocal with the

defense investigator even about the occurrence of a sex act per se, in light of the scientific

507 U.S. 619 (1993).

Case 2:16-cv-00745-GGH Document 17 Filed 03/29/17 Page 14 of 14

certainty that some type of sex act took place, must have spoken volumes to the jury about which

version was correct.6

Conclusion

AEDPA matters. The petition shall be denied. However, the undersigned determines that

a Certificate of Appealability is appropriate in this case.

The Clerk shall enter judgment for respondent.

DATED: March 28, 2017

/s/ Gregory G. Hollows

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

Petitioner does not contend that the evidence elicited at trial in its entirety was insufficient for

conviction on the forcible lewd act count.

APPENDIX C

Unpublished decision of the California Court of Appeal, Third Appellate District,

on direct appeal (last reasoned decision of state court)

Filed January 27, 2015

(1025 of 1089)

RESTRICTED Case: 17-15761, 04/19/2017, ID: 10402275, DktEntry: 3-10, Page 2 of 13

Filed 1/27/15 P. v. Johnson CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

THE PEOPLE,

C071975

(Super. Ct. No. 09F01545)

Plaintiff and Respondent,

RICHARD STEVEN JOHNSON, JR.,

Defendant and Appellant.

A jury convicted defendant Richard Steven Johnson, Jr., of lewd and lascivious

acts by force or violence on a minor under the age of 14 (Pen. Code, § 288, subd. (b)(1))1

and sustained an allegation that he kidnapped his victim in the commission of the crime

(§ 667.61, subd. (d)(2)). The trial court sentenced defendant to 25 years to life in state

prison.

1 Undesignated statutory references are to the Penal Code.

(1026 of 1089)

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On appeal, defendant contends accommodations made to the complaining witness

violated his right to confrontation and there is insufficient evidence to support the true

finding on the kidnapping allegation. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Crime

The Prosecution's Case

In February 2009, 13-year-old A.S. lived at home with her mother S.S. and some

of her siblings. Her sister J.S. lived in a separate apartment with her boyfriend—

defendant—and their baby daughter.

On February 28, 2009, defendant asked A.S. to go to the store with him and buy

tampons for J.S. He did not want to buy tampons because he was a man. He drove A.S.

to Foods Co., where she bought tampons for defendant.

Rather than taking her home, defendant drove A.S. to a place she did not know.

The place was about 15 minutes from the store and had a parking lot and buildings that

looked like warehouses. A.S. felt she could not escape because there was no one else in

the area. After parking, defendant got out of the car, opened the passenger door, and

ordered A.S. into the trunk. A.S. got out of the car and defendant pushed her into the

trunk.

Defendant drove the car for a "pretty long" time. She did not know where she was

when defendant stopped and opened the trunk. The place looked like a forest and she

could not get away. Defendant then sexually assaulted A.S. in the back seat of the car.

He told A.S. not to tell anyone and dropped her off near her home. A.S. went to a

friend's house before going home.

S.S. became worried when A.S. did not return home after several hours. A.S. said

she was going with defendant; S.S. tried to call her after a few hours but got no answer.

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S.S. knew something was wrong when A.S. finally returned home, as her daughter's

clothes were torn and her hair was messed up. S.S. asked what was wrong; A.S. said,

"Mom, he lied to me." A.S. then told S.S. about the sexual assault, after which S.S.

called the police.

A.S. was taken to the hospital for a medical examination. An officer who

contacted her at the hospital found A.S. was crying and upset. She said defendant picked

her up at around 10:55 a.m., took her to Foods Co., and then later struck her and forced

her into the trunk of the car. Defendant had sex with her even though she told him not to.

He dropped her off at an elementary school rather than her home.

J.S. testified she did not ask defendant to buy her tampons that day. He was

supposed to pick up their daughter from S.S.'s home and return in time to take J.S. to

work. J.S. called defendant when he did not return; defendant said he was fixing the car.

She told an officer that defendant sounded "weird" and said he was out with A.S. when

she talked to him on the phone that day.

A.S. told the examining nurse practitioner that defendant sexually assaulted her

around noon that day. Defendant also backhanded her in the face and grabbed her by the

arm during the assault. The nurse saw A.S. had a laceration and bruise on her elbow as

well as dried blood in her nose. The gynecological exam found tearing of the hymen

indicating a penetrating injury with a large object; the injuries were consistent with

sexual assault.

A search of defendant's car revealed a Foods Co. receipt for the purchase of a box

of tampons on February 28, 2009, at around 10:39 a.m. DNA taken from A.S.'s vagina

and panties matched defendant's with probabilities of a random match ranging from one

in 340 trillion to one in 130 quintillion. DNA from a swab taken from defendant's penis

matched A.S.'s DNA with probabilities of a random match ranging from one in three

million to one in 170 million. DNA swabs from a legal pad in the back seat of

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defendant's car, shorts found in the trunk, and from the trunk itself matched A.S.'s with

probabilities of a random match ranging from one in 300 quadrillion to one in 9

quintillion.

A.S. gave a special assault forensic evaluation interview on March 2, 2009. A

recording of the interview was played to the jury.

The Defense

A defense investigator interviewed A.S. on March 2, 2009. A.S. told the

investigator defendant tried to kiss her. She denied being in the trunk of the car, and said

sex may or may not have happened.

A nurse testifying as an expert in sexual assault examinations testified that an

examination cannot determine whether the sex was consensual. She opined that the

findings in this case could be consistent with consensual sex.

A.S.'s Testimony

The direct examination of A.S. began with general questions about her and her

family, which she answered without a problem. She then admitted not wanting to testify,

and having said so to the prosecutor in an e-mail. After A.S. answered general questions

about her sister J.S. and defendant, the prosecutor asked her about the events surrounding

the sexual assault. A.S. answered some of the questions, but to others, she gave replies

like, "I can't do this" or, "Can I leave?" She soon asked to take a break, and the trial

court ordered a 15-minute recess.

During the recess, defense counsel moved for a mistrial based on a violation of

defendant's right to due process. In support of the motion, counsel relied on A.S. being

brought into the courtroom through a back door rather than the normal means of entry.

Counsel noted that A.S., who was sitting next to a victim's advocate, cried during most of

her testimony and continually stated that she did not want to testify. Admitting that these

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facts may not individually support a due process violation, counsel asserted that their

cumulative effect deprived defendant of his right to a fair trial. The trial court disagreed

and denied the motion.

When examination resumed, A.S. was able to answer questions about her sister's

car and her desire to get a job, without any problem. As questioning moved to the events

on the day of the sexual assault, she answered some questions, but others were answered

with statements like, "I can't do this, I told you," or, "I don't remember." When the

prosecutor asked A.S. whether she got in the trunk of defendant's car on the day of the

incident, she replied, "I can't do this. I can't testify. Can I leave?" The prosecutor

switched to asking A.S. about her reluctance to testify. She replied that it was because

she was embarrassed and not because she was afraid of hurting her sister.

A.S. was initially able to answer the prosecutor's questions as the examination

went into the events after the sexual assault. When the prosecutor again asked her about

the events leading up to the sexual assault, A.S. increasingly answered with, "I don't

remember" or, "I don't want to talk about it." The trial court called a break after she

answered consecutive questions with, "Can I leave?" and, "I can't do this."

During the break, defense counsel said A.S. had replied she did not want to talk

about it 12 to 14 times. Counsel renewed the due process objection, which the trial court

denied.

Following the recess, the prosecutor asked to have A.S. give written answers

during the examination. The trial court agreed. During the rest of A.S.'s direct and

cross-examination, she gave her answers in writing, which were then read by the trial

court.

The defense later renewed the objection. Defense counsel asserted A.S.

effectively chose which questions she was going to answer before she wrote the answers

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down by stating she did not want to be there more than 14 times in reply to questions.

When A.S. wrote down her answers, her back was turned to counsel and the jury might

not have been able to see her and assess her credibility. Counsel additionally asserted

that the act of writing the answers to her cross-examination rather than facing counsel and

answering prevented effective cross-examination.

The trial court found the defense had ample opportunity to cross-examine A.S.,

and she answered every one of the defense questions. The court stated that A.S. was

"extremely emotional" before she was allowed to write down her answers. A.S. "was

crying when she first entered," and was especially emotional "when she was asked

questions specifically related to the alleged offense[s]." In deciding to allow A.S. to give

written answers, the trial court relied on "the age of the witness now, the age of the

witness when these offenses allegedly occurred, the nature of the charges, the violent

nature of the charges, the sexual nature of the charges," and the court's observation of

A.S.

The trial court additionally noted that it read the answers in a "speakable" but

"emotionless" manner. A.S. did turn her back to defendant after the last break, and

turned away from counsel when she wrote her answers. The trial court found this was

part of A.S.'s demeanor that the jury could take into account. Denying defendant's

motion, the trial court concluded by stating, "these slight deviations from regular practice

were necessary to facilitate taking of the evidence and to facilitate the search for the truth,

which this process is all about."

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DISCUSSION

I. Defendant's Right of Confrontation

Defendant contends his right to confrontation was violated when the trial court

allowed the victim "to testify without speaking and without allowing the jury and

defendant to face and confront her." We disagree.

The confrontation clause of the Sixth Amendment to the United States

Constitution provides, "In all criminal prosecutions, the accused shall enjoy the right ..

to be confronted with the witnesses against him ...." In Coy v. Iowa (1988) 487 U.S.

1012, 1016 [ 101 L.Ed.2d 857, 864], the court, stressing the time-honored view that faceto-face confrontation was essential to fairness, observed "the Confrontation Clause

guarantees the defendant a face-to-face meeting with witnesses appearing before the trier

of fact." The court held that placing a screen between the complaining witnesses and

defendant violated defendant's right to a face-to-face encounter. (Id. at p. 1020

[101 L.Ed.2d at p. 866].) The Coy decision left for another day whether there were

exceptions to the right of face-to-face confrontation. (Id. at p. 1021 [ 101 L.Ed.2d at

p. 867].)

Although the Coy court did not address exceptions to the right to confrontation, it

did find limits to what was guaranteed by that right. Specifically, the right to a face-toface confrontation did not mean that the witness must look at defendant. "The

Confrontation Clause does not, of course, compel the witness to fix his eyes upon the

defendant; he may studiously look elsewhere, but the trier of fact will draw its own

conclusions." (Coy v. Iowa, supra, 487 U.S. at p. 1019 [101 L.Ed.2d at p. 866].)

In Maryland v. Craig (1990) 497 U.S. 836, 857 [ 111 L.Ed.2d 666, 686], the court

held the confrontation clause did not prohibit a child witness from testifying against a

defendant at trial, outside defendant's presence, by a one-way closed circuit television to

protect the child from trauma that would impair the child's ability to communicate where

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the reliability of the evidence is ensured by subjecting it to rigorous adversarial testing.

The requisite finding of necessity to depart from face-to-face confrontation must be case

specific; the court must hear evidence and determine the procedure is necessary to protect

the welfare of the particular child witness. (Id. at p. 855 [ 111 L.Ed.2d at p. 685].) The

court must find the child witness would be traumatized by the presence of defendant and

that such emotional distress is more than de minimis. (Maryland, at p. 856 [ 111 L.Ed.2d

at p. 685].)

People v. Sharp (1994) 29 Cal.App.4th 1772 (Sharp), disapproved on other

grounds in People v. Martinez (1995) 11 Cal.4th 434, 452, is an example of how the right

to confrontation is satisfied so long as the witness is cross-examined in the courtroom in

the defendant's presence. In Sharp, the prosecutor stood or sat next to the witness stand

so the child witness did not have to look at defendant. Defendant could see the side and

back of the witness's head while she testified; even if he could not see all her facial

expressions, he could see her general demeanor and reactions to questioning. The

witness could, but chose not to, see defendant and the jury could see both the witness and

defendant. (Sharp, supra, at pp. 1781-1782.) The Court of Appeal found the situation

"not materially different from one in which a witness might stare at the floor, or turn her

head away from the defendant while testifying." (Id. at p. 1782.)

The Sharp court rejected the defendant's contention that his confrontation rights

were violated. "Surely, appellant cannot be claiming a constitutional right to stare down

or otherwise subtly intimidate a young child who would dare to testify against him. Nor

can he claim a right to a particular seating arrangement in the courtroom. A witness who

avoids the gaze of the defendant may be exhibiting fear, embarrassment, shyness,

nervousness, indifference, mendacity, evasiveness, or a variety of other emotional states

or character traits, some or all of which might bear on the witness's credibility. [J] It is,

however, the function of the jury to assess such demeanor evidence and 'draw its own

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conclusions' about the credibility of the witness and her testimony. [Citation.] There

was no interference with the jury's ability to perform that function in this case." (Sharp,

supra, 29 Cal.App.4th at p. 1782.)

The California Supreme Court relied on Sharp in reaching a similar conclusion in

People v. Gonzales (2012) 54 Cal.4th 1234 (Gonzales). Gonzales involved the murder by

torture of a four-year-old girl by her uncle, the defendant, with whom she was living.

(Gonzales, at pp. 1242-1243.) The People were allowed to admit the videotaped

preliminary hearing testimony of the defendant's eight-year-old son, Ivan, Jr., at trial

after the trial court found that the trauma Ivan, Jr., would suffer from testifying rendered

him unavailable. (Id. at pp. 1247, 1261.) At the preliminary hearing, Ivan, Jr., was

allowed to sit at an angle, not directly facing the defendants.2 (Gonzales, at p. 1265.)

The podium was placed "so that the lawyers had eye contact with the witnesses during

questioning, and the witnesses were free to look around the courtroom and make eye

contact with [the] defendants, if they desired." (Ibid.)

The Supreme Court found this arrangement did not violate the defendant's right to

face-to-face confrontation. (Gonzales, supra, 54 Cal.4th at p. 1266.) In support of its

conclusion, the high court cited and quoted from Sharp, which involved the same seating

arrangement as in Gonzales. (Gonzales, at p. 1267.) In Gonzales, the trial court made

extensive findings that testifying against the defendant would traumatize the witness. (Id.

at p. 1268.) The "seating arrangement at the preliminary hearing satisfied the central

concerns of the confrontation clause: `physical presence, oath, cross-examination, and

observation of demeanor by the trier of fact.' " (Ibid.) Accordingly, the defendant's right

2 Ivan, Jr.'s mother was prosecuted in a separate capital trial. (Gonzales, supra,

54 Cal.4th at p. 1261.)

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to confrontation was not violated by the use of the videotaped preliminary hearing

testimony. (Ibid.)

There is no meaningful distinction between A.S.'s refusal to face defendant or

counsel and what was held not to violate the right to confrontation in Sharp and

Gonzales. Since there is no right to have the witness look at defendant or defense

counsel, it was not necessary for the trial court to make the findings required by

Maryland. Nonetheless, the trial court here made findings that the witness was

traumatized based on its own observations of her, the nature of the alleged crimes, and

the victim's age. While the trial court did not hear testimony or take evidence on the

trauma from testifying, detailed findings are not required when any infringement on the

right to confrontation is de minimis. (See Gonzales, supra, 54 Cal.4th at p. 1267 ["the

less the intrusion on Sixth Amendment rights, the less detail is required in a trial court's

findings," citing Ellis v. U.S. (1st Cir. 2002) 313 F.3d 636, 650].) A.S.'s refusal to face

defendant or counsel did not violate defendant's right to confrontation.

Allowing A.S. to give some of her testimony in writing likewise does not infringe

on the Sixth Amendment right. Numerous witnesses testify through intermediaries

without violating a defendant's right to confrontation. The right to confrontation does not

prohibit a deaf witness from testifying through a sign language interpreter. (People v.

Younghanz (1984) 156 Cal.App.3d 811, 819.) Witnesses not capable of testifying in

English are allowed to testify through interpreters without violating the right to

confrontation. (See People v. Roberts (1984) 162 Cal.App.3d 350, 356 [use of interpreter

not on statutorily required list of court-approved interpreters does not violate right to

confrontation without a showing of prejudice]; Evid. Code, § 752 [procedure for

appointing interpreters for witnesses].) A.S. was not able to give spoken answers to

questions about the details of the sexual assault. Allowing her to write down the answers

and have them read by the trial court was no different than allowing a deaf witness or a

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witness who does not speak English to communicate his or her answers to the jury

through an interpreter. As in those situations, accommodating the witness here did not

violate defendant's right to confrontation.

II. Sufficiency of the Evidence

Defendant contends there is insufficient evidence to support the true finding on the

kidnapping special allegation.3 He claims there was insufficient evidence to find he

moved the victim a substantial distance that increased the risk of harm to her. His

contention borders on the frivolous.

In determining the sufficiency of the evidence, we ask whether " 'after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.' " (People v.

Hatch (2000) 22 Cal.4th 260, 272, italics omitted.) We resolve neither credibility issues

nor evidentiary conflicts; we look for substantial evidence. (People v. Ochoa (1993)

6 Cal.4th 1199, 1206.) "The uncorroborated testimony of a single witness is sufficient to

sustain a conviction, unless the testimony is physically impossible or inherently

improbable." (People v. Scott (1978) 21 Cal.3d 284, 296.)

Section 667.61 incorporates the standard for aggravated kidnapping by requiring

that "the movement of the victim substantially increased the risk of harm to the victim

over and above that level of risk necessarily inherent in the underlying offense ...."

(§ 667.61, subd. (d)(2); see People v. Rayford (1994) 9 Cal.4th 1, 11-12, 22.)

3 In addition, defendant claims, "the evidence was insufficient as to count 2,"

defendant's conviction for lewd and lascivious acts by force or violence on a minor under

the age of 14. This claim is made without a separate heading and without any supporting

authority or factual analysis. It is therefore forfeited. (In re S.C. (2006) 138 Cal.App.4th

396, 408 ["To demonstrate error, appellant must present meaningful legal analysis

supported by citations to authority and citations to facts in the record that support the

claim of error."].)

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The asportation element for aggravated kidnapping requires only movement more

than incidental to the crime, which substantially increased the danger beyond that

inherent in the crime. This conclusion may be based on any of the following factors:

Defendant decreased the likelihood of being detected by moving the victim out of the

way; the danger was increased to the victim based on the victim's foreseeable attempt to

escape; or the movement enhanced the defendant's opportunity to commit the crime.

(People v. Jones (1997) 58 Cal.App.4th 693, 713.)

Here, substantial evidence supports the jury's asportation finding. Defendant

moved A.S. against her will twice. First he drove about 15 minutes from the store to a

warehouse area where no one was around. Taking advantage of the isolated location,

defendant forced A.S. into the trunk and drove her to a wooded location where defendant

sexually assaulted her. Moving A.S. to increasingly isolated areas decreased defendant's

chance of being caught and foreclosed the possibility of her escaping. The fact that A.S.

spent part of the trip in the trunk of a car increased the danger of the kidnapping.

Since the asportation clearly increased the danger to the victim beyond that

inherent in the crime, the true finding on the aggravated kidnapping enhancement is

supported by substantial evidence.

DISPOSITION

The judgment is affirmed.

BUTZ

We concur:

BLEASE

,Acting P. J.

MAURO

,J.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.