Petition for Writ of Certiorari — Jorge Armando Herrera Salguero, Petitioner v. California

Supreme Court briefJul 16, 2020

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INDEX TO APPENDIX

PAGE(S)

Order by Ninth Circuit denying request for certificate

of appealability in case no. 19-55480, filed 4/17/20

Order denying certificate of appealability in

C.D. Cal. case no. EDCV 17-0076-SJO (AFM),

filed 4/1/19

24-25

Judgment in C.D. Cal. case no. EDCV 17-0076-SJO (AFM),

filed 4/1/19

Order Accepting Findings and Recommendation of

United States Magistrate Judge in C.D. Cal. case no.

EDCV 17-0076-SJO (AFM), filed 4/1/19

Report and Recommendation of United States Magistrate

Judge in C.D. Cal. case no. EDCV 17-0076-SJO (AFM),

filed 2/8/19

California Supreme Court order denying petition

for writ of habeas corpus in case no. S246807,

filed 6/27/18

28-55

Unpublished opinion by California Court of Appeal

affirming judgment on appeal in case no. E062563,

filed 1/7/16

57-59

Portions of prosecutor’s closing argument in

People v. Jorge Armando Herrera Salguero, Riverside

County Superior Court case no. SWF1202846,

10/29/14

60-62

Case: 19-55480, 04/17/2020, ID: 11664149, DktEntry: 3, Page 1 of 1

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

APR 17 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

No.

JORGE ARMANDO HERRERA

SALGUERO,

19-55480

D.C. No. 5:17-cv-00076-SJO-AFM

Central District of California,

Riverside

Petitioner-Appellant,

ORDER

PEOPLE OF THE STATE OF

CALIFORNIA,

Respondent-Appellee.

Before:

OWENS and BENNETT, Circuit Judges.

The request for a certificate of appealability (Docket Entry No. 2) is denied

because appellant has not made a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537

U.S. 322, 327 (2003).

Any pending motions are denied as moot.

DENIED.

Pet. App. 23

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JORGE ARMANDO HERRERA

SALGUERO,

Petitioner,

Case No. EDCV 17-0076-SJO (AFM)

ORDER RE CERTIFICATE OF

APPEALABILITY

CRAIG KOENIG, Warden,

Respondent.

Rule 11 of the Rules Governing Section 2254 Cases in the United States

District Courts reads as follows:

(a)

Certificate of Appealability. The district court must issue

or deny a certificate of appealability when it enters a final order adverse

to the applicant. Before entering the final order, the court may direct

the parties to submit arguments on whether a certificate should issue. If

the court issues a certificate, the court must state the specific issue or

issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2). If

the court denies a certificate, the parties may not appeal the denial but

may seek a certificate from the court of appeals under Federal Rule of

Pet. App. 24

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Appellate Procedure 22. A motion to reconsider a denial does not

extend the time to appeal.

(b)

Time to Appeal. F ederal Rule of Appellate Procedure 4(a)

governs the time to appeal an order entered under these rules. A timely

notice of appeal must be filed even if the district court issues a certificate

of appealability.

Under 28 U.S.C. § 2253(c)(2), a Certificate of Appealability may issue “only

if the applicant has made a substantial showing of the denial of a constitutional right.”

The Supreme Court has held that this standard means a showing that “reasonable

jurists could debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” See Slack v. McDaniel, 529 U.S. 473,

483-84,120 S. Ct. 1595,146 L. Ed. 2d 542 (2000) (internal quotation marks omitted).

Here, after duly considering Petitioner’s contentions in support of the claims

alleged in the Petition, including in his objections to the Report and

Recommendation, the Court finds that Petitioner has not satisfied the requirements

for a Certificate of Appealability. Accordingly, the Certificate is DENIED.

DATED: April 1,2019.

S. JAMES OTERO

UNITED STATES DISTRICT JUDGE

Pet. App. 25

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JORGE ARMANDO HERRERA

SALGUERO,

Petitioner,

Case No. EDCV 17-0076-SJO (AFM)

JUDGMENT

CRAIG KOENIG, Warden,

Respondent.

This matter came before the Court on the Petition of JORGE ARMANDO

HERRERA SALGUERO, for a writ of habeas corpus. Having reviewed the Petition

and supporting papers, and having accepted the findings and recommendation of the

United States Magistrate Judge,

IT IS ORDERED AND ADJUDGED that the Petition is denied and the action

is dismissed with prejudice.

DATED: April 1,2019.

S. JAMES OTERO

UNITED STATES DISTRICT JUDGE

Pet. App. 26

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JORGE ARMANDO HERRERA

SALGUERO,

Petitioner,

CRAIG KOENIG, Warden,

Case No. EDCV 17-0076-SJO (AFM)

ORDER ACCEPTING FINDINGS

AND RECOMMENDATIONS OF

UNITED STATES MAGISTRATE

JUDGE

Respondent.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of

Habeas Corpus, records on file and the Report and Recommendation of United States

Magistrate Judge. Further, the Court has engaged in a de novo review of those

portions of the Report to which Petitioner has objected. The Court accepts the

findings and recommendation of the Magistrate Judge.

IT THEREFORE IS ORDERED that Judgment be entered (1) denying the

Petition; and (2) dismissing the action with prejudice.

DATED: April 1, 2019.

S. JAMES OTERO

UNITED STATES DISTRICT JUDGE

Pet. App. 27

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JOSE ARMANDO HERRERA

SALGUERO,

Petitioner,

Case No. EDCV 17-0076-SJO (AFM)

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE

JUDGE

CRAIG KOENIG, Warden,

Respondent.

This Report and Recommendation is submitted to the Honorable S. James

Otero, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order

05-07 of the United States District Court for the Central District of California.

BACKGROUND

Petitioner was charged with one count of committing a lewd act against a child

and two counts of unlawful sexual intercourse with a child under age ten. (Petitioner’s

Notice of Lodging [ECF No. 33]; Lodged Document (“LD”) 3; Clerk’s Transcript

(“CT”) 1, 72-73.) The following evidence was presented at trial:

Cristina Zavala lived in a trailer near the one in which the victim (“Jane Doe”)

and her family lived. Soon after Jane Doe was bom, Zavala’s daughter began helping

Pet. App. 28

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to take care of her. When Jane Doe was about two years old, Zavala frequently

babysat her. (ECF No. 33; LD 1; Reporter’s Transcript on Appeal [“RT”] 420-421.)

Jane Doe’s parents, Carlos Geronimo and Elizabeth Moctezuma, were separated and

shared custody of Jane Doe as well as their older child, Carlos Jr. (RT 307-308, 317.)

Sometime after Geronimo and Moctezuma separated, Zavala began renting a room

to Geronimo so that Geronimo could be near his children. (RT 308-309, 422.)

Meanwhile, Petitioner lived in the trailer home with Moctezuma, Carlos Jr., Jane

Doe. In addition, Petitioner and Moctezuma had a daughter who lived with them and,

at the time of Petitioner’s arrest, Moctezuma was pregnant with Petitioner’s child.

(RT 214-215, 301-302, 337.)

When Jane Doe was five years old, she was with Zavala while Zavala changed

an infant boy’s diaper. Jane Doe told Zavala that that Petitioner had a penis like the

baby’s, but Petitioner’s was bigger and that “white stuff comes out of it.” (RT 421

424.) When Zavala asked Jane Doe how she knew this, Jane Doe responded that

Petitioner had removed both his own and Jane Doe’s pants and put white stuff from

his penis on top her “private part.” (PT 425.)

Later that day, Moctezuma arrived to pick up Jane Doe. Zavala reported what

Jane Doe had said. Moctezuma appeared very angry, and told Zavala that she was

going to kick Petitioner out of her house and call the police. (RT 425-428.) Zavala

learned that Petitioner did indeed leave Moctezuma’s house. Less than a month later,

however, she learned that Petitioner had moved back into Moctezuma’s house.

Shortly thereafter, Moctezuma and Petitioner appeared at Zavala’s home. Petitioner

cried, was very remorseful, and asked Zavala for forgiveness. Petitioner said that he

“didn’t know why that had happened,” but he assured Zavala that he “was not going

to do it again.” Zavala told him that if he did it one more time, she would call the

police. (RT 429-432.)

Zavala did not report what Jane Doe had told her to the police or to Geronimo.

She did discuss it with her daughter, a friend from church, and another friend who

Pet, App. 29

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“was a teacher.” (RT 440-442.) On cross-examination, Petitioner’s counsel asked

whether this friend “teaches at a public school.” (RT 448.) Zavala responded, “Yes.

I don’t know if she’s teaching or taught.” (RT 448.) Zavala’s friend told her not to

call the police because they would not do anything about it since it would be Zavala’s

word against the word of Moctezuma and Petitioner. (RT 448-450.)

Jane

Doe’s

mother corroborated

Zavala’s

testimony

regarding the

conversation. Moctezuma testified that one afternoon when she returned from work

to pick up Jane Doe, Zavala told her that Petitioner had done something inappropriate

with Jane Doe, and that Jane Doe had seen “white stuff coming out of [Petitioner’s]

penis.” Jane Doe was five years old at the time. (RT 341-342, 365-366,383-384, 388

389.) Moctezuma testified that after Zavala told her that Petitioner was molesting or

touching Jane Doe, she kicked Petitioner out of the house. After a number of days

(less than a month), she let him back in. (RT 351-355, 366, 393.) Moctezuma also

reported to social worker Javier Carranza that she had thrown Petitioner out of the

house after learning of Jane Doe’s accusation. (RT 481-482.) Moctezuma testified

that she did not believe what Zavala told her because Zavala “was always putting

things into my daughter’s head, things that were not so.” (RT 366-367.)

Jane Doe’s father testified that in June 2012, Jane Doe had been staying with

him. When it was time for her to return to her mother, Jane Doe began crying and

said that she did not want to go back to her mother’s home. (RT 310, 312-313.)

Zavala was in the trailer at the time, and she asked Jane Doe why she was crying.

Jane Doe told Geronimo and Zavala that Petitioner had “penetrated her private part.”

Jane Doe was crying when she told them what happened. Geronimo surreptitiously

recorded Jane Doe using his cell phone. When Jane Doe finished, Geronimo called

the police. The police came to the trailer and talked to Geronimo and Jane Doe.

Geronimo gave the cell phone recording to the police. (RT 314-316.)

Subsequently, Jane Doe participated in a forensic interview, which was

recorded and played for the jury. During the interview, Jane Doe said that Petitioner

Pet. App. 30

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came into the bathroom with her, took off his underwear, and made Jane Doe rub his

penis up and down. When gray watery stuff came out of his penis, Petitioner wiped

it with a towel. He told Jane Doe not to tell anyone or something would happen to

her. (CT 219-223, 231-232.) Jane Doe also described two occasions when Petitioner

placed his penis in her vagina. She said that Petitioner used his fingers to open her

“private” and that his nails hurt her. (CT 216-218, 225-234, 243-247.) On one of

these occasions, Jane Doe’s mother woke up while Petitioner was on top of Jane Doe

and slapped Petitioner. (CT 218, 226, 229-230, 234.)

Jane Doe also testified at trial. She reaffirmed that the incidents she reported

during her interview really happened. (RT 300.) Jane Doe further testified that her

mother told her that if she told anyone what Petitioner did, she would spank her or

“break her mouth.” (RT 281-282.) In addition, during one of her supervised visits,

Jane Doe’s mother whispered to her that she should say she was lying about

Petitioner. Jane Doe reported what her mother said to a social worker. (RT 288-289.)

Moctezuma testified that she never saw Petitioner touch Jane Doe

inappropriately and that Jane Doe had told her that nothing happened with Petitioner.

Moctezuma specifically denied that she had woken up to find Petitioner on top of

Jane Doe and then slapped Petitioner. In addition, according to Moctezuma, there

was no meeting with Zavala during which Petitioner allegedly apologized for

touching Jane Doe. Finally, she denied whispering to Jane Doe during a supervised

meeting and encouraging her to say it was a lie. (RT 341-342, 365-377, 398.)

Loreno Vivanco de Martinez, M.D., a forensic pediatrician, testified that she

examined Jane Doe on June 13, 2912. The findings of the examination were

“normal,” and Jane Doe’s hymen was still intact. According to Dr. Vivanco, her

findings were consistent with either being abused or not being abused. Dr. Vivanco

explained that based upon her examination, she could not offer an opinion as to

whether or not Jane Doe had been sexually abused. (RT 226,237-238, 241-242, 254

259.)

Pet App. 31

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The jury convicted Petitioner of one count of committing a lewd act against a

child and two counts of unlawful sexual intercourse with a child under age ten. (CT

253-257.) Petitioner was sentenced to state prison for a term of fifty years to life plus

eight years. (CT 302-303.)

The California Court of Appeal affirmed Petitioner’s conviction on January 7,

2016. (LD 5.) Petitioner did not file a petition for review in the California Supreme

Court.

On December 19,2016, Petitioner filed this petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. (ECF No. 1.) The Court appointed counsel for

Petitioner. (ECF No. 28.) On December 21, 2017, Petitioner’s motion for a stay was

granted so that he could exhaust his state remedies. (ECF No. 38.) Thereafter,

Petitioner filed a habeas corpus petition in the California Supreme Court, which was

summarily denied on June 27, 2018. (ECF No. 43.)

Petitioner filed a First Amended Petition on July 27, 2018. (ECF No. 45.)

Respondent filed an answer to the First Amended Petition, and, on December 8,2018,

Petitioner filed a traverse. (ECF Nos. 52, 53.)

PETITIONER’S CLAIMS

The prosecutor committed misconduct by presenting the false testimony

of Cristina Zavala. (ECF No. 45-1 at 6-11.)

The prosecutor committed misconduct by vouching for prosecution

witness Cristina Zavala during closing argument. (ECF No. 45-1 at 11-13.)

Imposition of the upper terms on all counts constitutes cruel and unusual

punishment. (ECF No. 45-1 at 13-14.)

The cumulative effect of the prosecutorial misconduct in grounds one

and two deprived Petitioner of a fair trial. (ECF No. 45-1 at 15-16.)

Petitioner received ineffective assistance of counsel at trial because trial

counsel (a) failed to object to the prosecutor’s vouching during closing argument and

(b) erroneously rejected the trial court’s offer to instruct the jury on attempt as a lesser

Pet. App. 32

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included offense to unlawful sexual intercourse with a child under ten. (ECF No. 45

1 at 16-18.)

Petitioner received ineffective assistance of counsel on appeal because

appellate counsel failed to raise each of the foregoing claims to the California Court

of Appeal. (ECF No. 45-1 at 17-18.)

STANDARD OF REVIEW

A federal court may not grant a writ of habeas corpus on behalf of a person in

state custody

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.

28 U.S.C. § 2254(d).

As used in section 2254(d)(1), the phrase “clearly established federal law”

includes only the holdings, as opposed to the dicta, of Supreme Court decisions

existing at the time of the state court decision. Howes v. Fields, 565 U.S. 499, 505

(2012) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).

Under section 2254(d)(1), a state court’s determination that a claim lacks merit

precludes federal habeas relief so long as “fairminded jurists could disagree” about

the correctness of the state court's decision. Harrington v. Richter, 562 U.S. 86, 101

(2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). This is true

even where a state court’s decision is unaccompanied by an explanation. In such

cases, the petitioner must show that “there was no reasonable basis for the state court

to deny relief.” Harrington, 562 U.S. at 98. Review of state court decisions under

Pet. App. 33

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§ 2254(d)(1) “is limited to the record that was before the state court that adjudicated

the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011).

Under section 2254(d)(2), relief is warranted only when a state court decision

based on a factual determination is “objectively unreasonable in light of the evidence

presented in the state-court proceeding.” Stanley v. Cullen, 633 F.3d 852, 859 (9th

Cir. 2011) (quoting Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004)). Further,

state court findings of fact - including a state appellate court’s factual summary - are

presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1); see Vasquez v. Kirkland, 572 F.3d 1029, 1031 n.l (9th Cir. 2009).

Here, petitioner’s claims were summarily denied by the California Supreme

Court, a decision which constitutes an adjudication on the merits for purposes of

AEDPA review. See Harrington, 562 U.S. at 98.

DISCUSSION

Presentation of False Testimony.

In Ground One, Petitioner alleges that the prosecutor presented the false

testimony of Jane Doe’s babysitter, Cristina Zavala. For the following reasons,

Petitioner’s claim lacks merit.

a. Clearly established federal law.

The knowing use of perjured testimony to obtain a conviction violates a

criminal defendant’s federal right to due process. See Napue v. Illinois, 360 U.S. 264,

268-270 (1959); Hayes v. Brown, 399 F.3d 972, 978 (9th Cir. 2005) (en banc). “In

addition, the state violates a criminal defendant’s right to due process of law when,

although not soliciting false evidence, it allows false evidence to go uncorrected

when it appears.” Hayes, 399 F.3d at 978 (citing Alcorta v. Texas, 355 U.S. 28

(1957)); see also United States v. Bag.ey, 473 U.S. 667, 680 n.8 (1985) (under Napue,

“the knowing use of false testimony to obtain a conviction violates due process

regardless of whether the prosecutor solicited the false testimony or merely allowed

it to go uncorrected when it appeared ”).

Pet App. 34

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In order to prevail on a Napue claim, a petitioner must demonstrate that: (1) the

testimony or evidence was actually false; (2) the prosecution knew or should have

known that the testimony or evidence was actually false; and (3) the false testimony

or evidence was material. Gentry v. Sinclair, 705 F.3d 884, 903 (9th Cir. 2013);

United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003). The materiality

requirement is satisfied whenever there is “any reasonable likelihood that the false

testimony could have affected the judgment of the jury.” Hayes, 399 F.3d at 985

(internal quotation marks and citations omitted). As the Ninth Circuit has explained,

the question is whether in the absence of the false testimony the defendant “received

a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Hayes,

399 F.3d at 984 (internal quotation marks and citations omitted).

b. Analysis.

Petitioner contends that Zavala falsely testified that Petitioner cried and

apologized to Zavala (thereby essentially admitting to sexually abusing Jane Doe)

and falsely testified that she did not report the abuse to the police because her friend

advised her not to do so. (ECF No. 45-1 at 10.) According to Petitioner, the falsity of

Zavala’s testimony is shown by (a) Zavala’s failure to inform the defense about these

statements before she testified at the first trial; (b) the “patent absurdity” of a

statement Zavala attributed to a teacher - who would have had a duty to report child

abuse - that Zavala should not tell the police because it would be her word against

“theirs”; (c) the fact that Zavala’s testimony conflicted with Moctezuma’s testimony;

and (d) Zavala’s past experience raising Jane Doe gave her a motive to lie. (ECF No.

53 at 8-9.)

Petitioner points out that Zavala did not mention that Petitioner and

Moctezuma appeared at her home one afternoon and Petitioner apologized for what

he had done to Jane Doe until she testified at Petitioner’s first trial. As a result of

Zavala’s surprise testimony, the trial court declared a mistrial. (RT 116, 134, 138,

141.) Petitioner also points out that Zavala said that her friend, a teacher, advised her

Pet, App. 35

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Document 54 Filed 02/08/19 Page 9 of 28 Page ID #:1961

not to report Jane Doe’s abuse, yet public school teachers are legally mandated to

report suspected child abuse or neglect. The trial court took judicial notice of this

fact. (RT 755-756.)

Nothing Petitioner has pointed to demonstrates that Zavala’s testimony was

actually false. The facts that Zavala did not timely report Petitioner’s implicit

admission and that Zavala claimed her friend gave advice contrary to the friend’s

legal obligations may render Zavala’s testimony less credible. Nevertheless, they do

not demonstrate that Zavala’s testimony was false. Likewise, neither the fact that

Zavala’s testimony was, in part, contradicted by Moctezuma nor the possibility that

Zavala was biased are sufficient to show that Zavala’s testimony was actually false.

“The fact that a witness may have made an earlier inconsistent statement, or

that other witnesses have conflicting recollections of events, does not establish that

the testimony offered at trial was false. ” United States v. Croft, 124 F.3d 1109, 1119

(9th Cir. 1997); see also Zuno-Arce, 339 F.3d at 890 (without more, evidence that

prosecution witnesses “were criminals and that the government had promised them

money in exchange for their testimony” did not demonstrate falsity). Furthermore,

nothing that Petitioner points to is sufficient to support an inference that the

prosecutor knew or should have known that Zavala’s testimony was false. To the

contrary, there is evidence supporting Zavala’s veracity. As set forth above, at least

some of Zavala’s testimony was corroborated by the testimony of Jane Doe’s mother,

who confirmed that Zavala had reported Jane Doe’s initial accusation against

Petitioner when Jane Doe was five. Moctezuma’s testimony about the conversation

was entirely consistent with Zavala’s. In fact, Moctezuma conceded that she took

action based upon what Zavala told her, and temporarily kicked Petitioner out of her

home. (See RT 341-342, 351-355, 365-366, 383-384, 388-389, 393.) Social worker

Javier Carranza confirmed that Moctezuma reiterated that she’d thrown Petitioner

out of her house after she heard what Jane Doe accused him of doing. (RT 481-482.)

Pet. App. 36

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The Court cannot conclude that the prosecutor knowingly presented perjured

testimony merely because Zavala waited before mentioning Petitioner’s apology/

admission or because her friend’s advice appeared to be either unreasonable or

unethical. See, e.g., United States v. Bingham, 653 F.3d 983, 995 (9th Cir. 2011)

(“Bingham points to nothing in the record that shows the intentional use of perjured

testimony. Certainly [the prosecution witness] made inconsistent statements, but that

is not enough for a Napue violation.”); United States v. Williams, 547 F.3d 1187,

1202 n.13 (9th Cir. 2008) (“Although there were inconsistencies in Penate’s

testimony, there was no evidence that the government knowingly presented false

testimony.”).1

For the foregoing reasons, Petitioner has failed to establish the requisite falsity

to prevail on a prosecutorial misconduct claim. See Humes v. Asuncion, 2018 WL

4381545, at *11 (C.D. Cal. Aug. 1, 2018) (fact that testimony was inconsistent with

prior statements or other evidence introduced at trial was matter for the jury to

consider when assessing credibility and was insufficient to demonstrate that

.16

witnesses’ testimony was actually false under Napue), report and recommendation

adopted, 2018 WL 4378698 (C.D. Cal. Sept. 12, 2018). It follows that the state

court’s determination of his claim was neither contrary to, nor an unreasonable

application of, clearly established federal law.

II.

Vouching.

Petitioner contends that the prosecutor improperly vouched for Zavala when,

during rebuttal, she told the jury, “I believe Cristina Zavala told us the absolute truth.”

For the following reasons, Petitioner’s claim lacks merit.

1 The Court notes that each of the points made by Petitioner - namely, Zavala’s failure to mention

Petitioner’s purported admission until the first trial, Moctezuma’s testimony that it never occurred,

the inappropriate and/or unlikely advice that Zavala testified her friend gave her, and Zavala’s

potential bias - were matters for the jury to consider when assessing Zavala’s credibility. Indeed,

Petitioner’s counsel properly highlighted them in his closing argument. {See RT 793, 797, 804,

811-812.)

Pet. App. 37

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a. Clearly established federal law.

It is well established that the prosecution may not vouch for prosecution

witnesses - that is, a prosecutor may not place the prestige of the government behind

a witness through personal assurances of the witness’s veracity. See United States v.

Young, 470 U.S. 1, 18-19 (1985); United States v. Dorsey, 677 F.3d 944, 953 (9th

Cir. 2012). As the Supreme Court has explained:

The prosecutor’s vouching for the credibility of witnesses and

expressing his personal opinion concerning the guilt of the accused pose

two dangers: such comments can convey the impression that evidence

not presented to the jury, but known to the prosecutor, supports the

charges against the defendant and can thus jeopardize the defendant's

right to be tried solely on the basis of the evidence presented to the jury;

and the prosecutor's opinion carries with it the imprimatur of the

Government and may induce the jury to trust the Government’s

judgment rather than its own view of the evidence.

prosecutor places the prestige of the government behind a witness by expressing his

or her personal belief in the veracity of the witness, or (2) the prosecutor indicates

that information not presented to the jury supports the witness’s testimony.” United.

States v. Brooks, 508 F.3d 1205, 1209 (9th Cir. 2007) (quoting United States v.

Hermanek, 289 F.3d 1076, 1098 (9th Cir. 2002)).

oung, 470 U.S. at 19. “Improper vouching typically occurs in two situations: (1) the

A prosecutor’s improper argument, however, “docs not, per se, violate a

defendant’s constitutional rights.” Runningeagle v. Ryan. 686 F.3d 758, 781 (9th Cir.

2012) (citation omitted). Instead, the relevant question is whether the prosecutor’s

comments “so infected the trial with unfairness as to make the resulting conviction a

denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting

Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). Determining whether a due

process violation occurred requires an examination of the entire proceedings so that

Pet. App. 38

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the prosecutor’s remarks may be placed in their proper context. Boyde v. California,

494 U.S. 370,384-385 (1990). Furthermore, even when a prosecutor’s comments rise

to the level of constitutional error, federal habeas corpus relief is warranted only if

the petitioner establishes that the error had a substantial and injurious effect or

influence in determining the jury’s verdict. See Shaw v. Terhune, 380 F.3d 473, 478

(9th Cir. 2004) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

b. Analysis.

In order to determine whether the remark about which Petitioner complains

constituted improper vouching, the Court considers it in the context of the closing

argument as a whole.

The prosecutor began her closing argument focusing on Jane Doe’s credibility,

including her consistent reports and testimony about what Petitioner had done to her.

The prosecutor highlighted the testimony of Jane Doe’s mother and argued that

Moctezuma lied, failed to protect Jane Doe, and appealed to Jane Doe to say that she

had made up the allegations against Petitioner. (RT 757-781.) While the prosecutor

briefly mentioned Zavala’s testimony about Petitioner crying and apologizing to her,

(see RT 759-760), she emphasized that the strongest evidence of Petitioner’s guilt

was Jane Doe’s recorded forensic interview and her testimony in court. (RT 781.)

Tn his closing argument, Petitioner’s counsel argued that Geronimo, bitter

about his divorce and his limited access to his children over the year’s, planted the

idea that Petitioner sexually abused Jane Doe. (RT 784-785.) In addition, defense

counsel argued that the timing of Jane Doe’s disclosure suggested that Jane Doe had

ulterior motive, namely, she did not want to return to her mother’s home because

Petitioner was a harsh disciplinarian and took the attention of Jane Doe’s mother.

(RT 788-789.)

Defense counsel further suggested that Zavala somehow influenced Jane

Doe’s accusations. (RT 796.) With regard to Zavala, defense counsel argued that

there were problems with her credibility and pointed out several such problems. In

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particular, he focused on Zavala’s testimony that her friend, a public school teacher,

advised Zavala that the police never do anything so she should not bother calling

them about Petitioner’s abuse. Defense counsel reminded the jury that the law

required public school teachers to report suspected child abuse and based upon this

law, argued that Zavala’s testimony was inherently incredible. He repeated several

times that Zavala was not telling the truth. (RT 797-798, 803.) Defense counsel also

pointed out that Jane Doe did not remember telling Zavala what Zavala testified she

had told her. (RT 804.) He indicated that it was unreasonable that Zavala lived with

Geronimo, yet never told him about Jane Doe’s revelation about seeing Petitioner’s

penis. (RT 805-806.) Next, defense counsel argued that Zavala’s testimony was

internally consistent. Specifically, he pointed to Zavala’s claim that she did not tell

the police about the abuse because it would be her word against the word of

Moctezuma and Petitioner. Yet, Zavala testified that Moctezuma and Petitioner came

to her house and Petitioner essentially admitted that he abused Jane Doe and begged

Zavala’s forgiveness. Defense counsel argued that Petitioner’s apology, if believed,

did not indicate that he was a person who would deny allegations if Zavala brought

them to the police. (RT 806-808.) In light of all of the foregoing, defense counsel

argued that Zavala’s testimony was inherently incredible. Further, he argued, if

Zavala lied in even one part of her testimony, it was reasonable to conclude that she

lied in other parts. (RT 803-809.)

In rebuttal, the prosecutor remarked that although defense counsel had attacked

the credibility of Zavala and Geronimo, he never argued that Jane Doe was a liar.

The prosecutor reiterated that Jane Doe was credible; her interview and her testimony

were consistent. (RT 817-818.) The prosecutor reminded the jury that Jane Doe had

described and demonstrated how she moved her hand back and forth on Petitioner’s

penis and how “white stuff’ came out. Then the prosecutor said:

How else does the defense explain how a seven-year-old has personal

knowledge to that degree of such inexplicable behavior? What I

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gathered from his closing remarks is that somehow - and I’m not really

clear who it is that he’s blaming for this personal knowledge. Is it

Cristina Zavala? Sometimes it sounds like it. Or, is it Carlos

[Geronimo]? Because [defense counsel] told you in opening statement

that this case relies on the credibility of Cristina Zavala. That’s not true,

but I believe that what Cristina Zavala told us is absolutely the truth.

(RT 818.) The prosecutor laid out the unlikely scenario suggested by the defense

contention that Zavala was lying: that is, that Zavala harbored some undefined bias

against Petitioner or toward Jane Doe so that she concocted a scheme pursuant to

which, when Jane Doe was five years old, Zavala invented the story that Jane Doe

told her about seeing Petitioner’s penis; Zavala (perhaps with the assistance of

Geronimo) then waited two years before taking another step, during which time

Zavala coached Jane Doe by showing her hand gestures describing masturbation and

explained sexual intercourse; when Jane Doe was at her father’s house, she somehow

encouraged Jane Doe to become hysterical and make false accusations against

Petitioner before calling the police; finally, after executing the foregoing plan, Zavala

moved away and subsequently had limited contact with Jane Doe and Geronimo. (RT

818-820.)

When considered in context, the prosecutor’s comment that Zavala’s

testimony was the truth is fairly construed as an attempt to rebut the defense

contention that Zavala had fabricated her testimony. In doing so, the prosecutor

pointed to evidence in the record and argued that it was implausible to believe that

Zavala was lying. So construed, the prosecutor may not have improperly vouched for

Zavala’s veracity but rather was properly responding to defense counsel’s attack on

Zavala. See, e.g., Darden, 477 U.S. at 182 (“Much of the objectionable content [in

the prosecution’s argument] was invited by or was responsive to the opening

summation of the defense.”); Senator v. Sentman, 703 F. App’x 506, 507-508 (9th

Cir. 2017) (holding that prosecutor did not impermissibly vouch forjudges who

Pet, App. 41

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testified on behalf of prosecution when he argued to the jury that the judges’

credibility was “absolutely untouchable” and that whatever they said happened, “it

happened” because “what they say goes,” explaining that “it was not improper for

the prosecutor to rebut [the defendant’s] general statements regarding the judges’

credibility with a general defense of their credibility based on their profession”);

United States v. Molina, 934 F.2d 1440, 1445 n.4 (9th Cir. 1991) (noting that the

“one significant exception” to the rule that prosecutorial vouching is improper is the

“invited response” doctrine).

On the other hand, the prosecutor’s use of the phrase “I believe that what

Cristina Zavala told us is absolutely the truth” was ill-advised. Case law supports the

conclusion that it constituted improper vouching. See, e.g., Johnson v. Sublett, 63

F.3d 926, 930 (9th Cir. 1995) (prosecutor’s comment that “[h]e ... is a credible

witness. He was telling you the truth” amounted to improper vouching); United States

v. Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992) (prosecutor improperly vouched for

witness’s credibility when he made statements including “I think he (Jim Ludden)

was very candidf,]” “I think he (Al Butler) was candid. I think he was honest”); see

generally, King v. Schriro, 537 F.3d 1062, 1069 (9th Cir. 2008) (“A cautious

prosecutor may well wish to avoid saying anything that implies that he knows what

is actually the truth.”).

Even assuming that the prosecutor’s argument constituted improper vouching,

however, it did not deprive Petitioner of a fair trial. To begin with, the evidence

against Petitioner was substantial. As set forth above, the prosecutor focused her

argument regarding Petitioner’s guilt primarily upon the strength of Jane Doe’s

recorded interview and trial testimony, both of which provided detailed allegations

•25

about each of the charges against Petitioner. Zavala’s testimony was not critical to

Petitioner’s guilt on any of the charged offenses.

Furthermore, the trial court instructed the jurors that “you alone must judge the

credibility or believability of the witnesses,” and set forth the factors the jurors should

Pet. App. 42

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consider in assessing a witness’s credibility. (CT 271-272, 279-282; RT 831, 836

837.) The trial court also informed the jurors that they “must decide what the facts

are in this case” using “only the evidence that was presented in the courtroomf,]” and

defined “evidence” as “the sworn testimony of witnesses, the exhibits admitted into

evidence, and anything else I told you to consider as evidence.” (CT 262, 268; RT

831, 834.) Further, the trial court specifically instructed the jury that “[n]othing that

the attorneys say is evidence[,]” and emphasized that “[i]n their opening statements

and closing arguments, the attorneys discuss the case, but their remarks are not

evidence.” (CT 268; RT 834). The jury is presumed to follow its instructions, see

Weeks v. Angelone, 528 U.S. 225, 234 (2000), and there is no reason to believe that

the jury in this case was incapable of doing so.

In light of the foregoing, the prosecutor’s isolated statement did not render

Petitioner’s trial fundamentally unfair. See Duckett v. Godinez, 67 F.3d 734, 743 (9th

Cir. 1995) (even though “the prosecutor may have injected his own belief regarding

the veracity of the witnesses” it did not rise to the level of a due process violation

because it was an isolated comment in a lengthy trial and the jury was “clearly

instructed that statements made by attorneys during closing argument were not

evidence to be considered in deciding the facts”); Humes, 2018 WL 4381545, at * 12

13 (even if prosecutor’s comments were impermissible vouching, they did not rise to

the level of a due process violation considering the substantial evidence against the

petitioner and the trial court’s instructions that attorneys’ statements were not

evidence); Wafford v. Davey, 2015 WL 1011716, at *17 (E.D. Cal. Mar. 4, 2015)

(assuming that prosecutor’s comments amounted to improper vouching, they did not

rise to the level of a due process violation where the trial court instructed the jury that

statements of the attorneys were not evidence).

For the same reasons, any error was harmless. That is, considering the strength

of the prosecution’s case and the trial court’s instructions, the prosecutor’s isolated

comment made in rebuttal to defense counsel’s attack on Zavala’s credibility did not

Pet. App. 43

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have a substantial and injurious effect on the jury’s verdict. See United States v.

Harrison, 585 F.3d 1155, 1159 (9th Cir. 2009) (prosecutor engaged in improper

vouching but in light of the strength of the evidence, the defendant was not unduly

prejudiced); Linderman v. Lackner, 2015 WL 5026061, at *23 (C.D. Cal. Aug. 10,

2015) (the prosecutor’s improper comments did not have a substantial and injurious

effect on the verdict in light of the overwhelming weight of the evidence against the

petitioner), report and recommendation adopted, 2015 WI. 5031938 (C.D. Cal.

Aug. 25. 2015).

For all of the foregoing reasons, the state court’s determination of this claim

was neither contrary to, nor an unreasonable application of, clearly established

federal law.

III.

Cruel aud unusual punishment.

Petitioner was sentenced to the upper term of eight years for the lewd conduct

count. Ue was sentenced to the mandatory term of 25-years-to-life on each of the

unlawful sexual intercourse counts. The trial court ordered that these sentences run

consecutively. (RT 907-908.) Petitioner contends that the trial court should have

ordered that the two 25-year-to-life sentences run concurrently and should have

imposed the middle term for the lewd conduct count. He points out that he had never

been arrested before and he had no criminal record. According to Petitioner, his

sentence amounts to cruel and unusual punishment. (ECF No. 45-1 at 13-14.)

a. Clearly established federal law.

The Cruel and Unusual Punishments Clause prohibits “extreme sentences that

are ‘grossly disproportionate’ to the crime.” Graham v. Florida, 560 U.S. 48, 59-60,

(2010) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J.,

concurring in part and concurring in judgment)). Where, as here, the sentence does

not fall under any categorical prohibition (for example, capital punishment for non

homicide offenses), the Court begins “by comparing the gravity of the offense and

the severity of the sentence.” Graham, 560 U.S. al 60. This threshold comparison

Pet App. 44

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“can consider the penological justifications for the State’s sentencing scheme, [the

offender’s] mental state and motive in committing the crime, [and] the actual harm

caused to his victim or to society by his conduct, as well as [t]he absolute magnitude

of the crime.” Norris v. Morgan, €22 F.3d 1276, 1290 (9th Cir. 2010) (internal

citations and quotations omitted, alterations in original). Finally, while the precise

contours of the “gross disproportionality principle” are “unclear,” the principle is

applicable only in the “exceedingly rare” and “extreme” case. Lockyer v. Andrade,

538 U.S. 63, 73 (2003); see also Rummel v. Estelle, 445 U.S. 263, 272 (1980)

(“Outside the context of capital punishment, successful challenges to the

proportionality of particular sentences have been exceedingly rare.”); Crosby v.

Schwartz, 678 F.3d 784, 795 (9th Cir. 2012) (“Circumstances satisfying the gross

disproportionality principle are rare and extreme[.]”).

b. Analysis.

There is no dispute that Petitioner’s sentence of 58 years to life is severe. On

the other hand, Petitioner’s crimes were among the most serious. Petitioner was

convicted and sentenced pursuant to California Penal Code § 288.7(a), which

mandates a 25-years-to-life sentence for defendants convicted of sexual intercourse

with a child under ten years old. California’s sentencing scheme reflects a legislative

policy favoring aggressive punishment for those who have sexual intercourse with or

sodomize the youngest victims. Tiiere is nothing inherently improper in this

legislative judgment. See McPherson v. Paramo, 2017 WL 9732426, at *34 (C.D.

Cal. Dec. 5, 2017) (sentence of 15-years-to-life for one count of oral copulation of a

child under the age of ten did not violate Eighth Amendment; commenting that “by

making a violation of California Penal Code § 288.7(b) subject to the same One

Strike law penalty applicable to other sex offenses (see California Penal Code

§ 667.61), California has taken an aggressive approach to punishing the act of orally

copulating or sexually penetrating a child ten years of age or younger. This was a

policy choice for the State of California to make, and Petitioner points to no clearly

Pet. App. 45

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established Supreme Court precedent that forecloses that legislative choice.”), report

and recommendation adopted, 2018 WL 1183355 (C.D. Cal. Mar. 7, 2018).

In addition, Petitioner’s specific conduct was particularly egregious. As the

trial court noted in sentencing Petitioner to consecutive terms, the victim was

especially young - from five to seven years old. Further, Petitioner took advantage

of his position of trust in the victim’s home, that is, he was effectively Jane Doe’s

step-father. As the trial court bluntly put it, Petitioner essentially raped a six-year old

girl on the door of her mother’s bedroom. It described Petitioner’s conduct as

“graphic, sickening, horrible behavior that will scar this little girl for the rest of her

life,” and noted that California’s legislature had “chosen to punish this in the most

severe manner possible.” (RT 905-908.)

Further, the Ninth Circuit has observed that

“[t]he impact of [child molestation] on the lives of [its] victims is

extraordinarily severe.” Cacoperdo v. Demosthenes, 37 F.3d 504, 508

(9th Cir. 1994); see Stogner v. California, 539 U.S. 607, 651, 123 S.Ct.

2446, 156 L.Ed.2d 544 (2003) (Kennedy. J., dissenting) (“When a child

molester commits his offense, he is well aware the harm will plague the

victim for a lifetime.”). Indeed, while “psychological or physical harm

is necessary to constitute *abuse[,]’ ” United States v. Baza-Martinez,

464 F.3d 1010, 1017 (9th Cir. 2006), “[t]he use of young children [by

adults] for the gratification of sexual desires constitutes an abuse. ... It

constitutes maltreatment, no matter its form.” United States v. Baron

Medina, 187 F.3d 1144, 1147 (9th Cir. 1999); see, e.g, United States v.

Valencia—Barragan, 600 F.3d 1132, 1136 (9th Cir. 2010). “[W]e and

our sister circuits have [therefore] consistently held that sexual offenses

[by older adults] against younger children constitute ‘crimes of

violence.’” United States v. Medina-Villa, 567 F.3d 507, 515 (9th Cir.

2009).

Pet. App. 46

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Norris, 622 F.3d at 1294,

Indeed, courts uniformly have rejected disproportionality challenges brought

by defendants convicted of the sexual abuse of a child, even where the sentences are

longer than that imposed on Petitioner. See, e.g., Taylor v, Myles, IM F. App’x 601

(9th Cir. 2019) (upholding sentence of life with the possibility of parole after ten

years for offense of lewdness with a child under fourteen years of age involving an

incident “lasting about twenty-five minutes,” in which the petitioner “made sexual

advances towards a thirteen-year-old child”); Norris, 622 F.3d at 1279-1296 (life in

prison without the possibility of parole for touching a child “on her ‘privates’ or

‘genitalia’ and over her clothing for at most ‘a couple of seconds’”); Frazier v.

Adams, 2010 WL 4010373, at *7-8 (N.D. Cal. Oct. 12, 2010) (sentence of225 years

to life not cruel and unusual when imposed upon petitioner convicted of 36 counts of

lewd and lascivious acts on a child under the age of 14); Chan v. Martel, 2009 WL

1445898, at *18 (C.D. Cal. May 20, 2009) (no Eighth Amendment violation where

petitioner was sentenced to life without the possibility of parole based upon multiple

counts of committing a forcible lewd act upon a child under the age of fourteen).

In support of his claim. Petitioner points out that he has no prior convictions.

However, as the Ninth Circuit recognized in a case involving child molestation, “the

Supreme Court has found constitutional longer sentences for crimes of lesser gravity

committed by first-time offenders.” United States v. Lamere, 337 F. App’x 669, 672

(9th Cir. June 29, 2009); see also Garcia v. Knipp, 2011 WL 7299662, at *5 (C.D.

Cal. Oct. 26, 2011) (sentence of 45 years to life imposed upon petitioner with no prior

criminal record based upon conviction of six counts of lewd acts upon a child under

the age of fourteen did not violate the Eight Amendment), report and

recommendation adopted, 2012 WL 476298 (C.D. Cal. Feb. 10, 2012)

Comparison of Petitioner’s circumstances with cases upholding lengthier

sentences for less egregious offenses confirms that the state court reasonably could

conclude that Petitioner’s sentence of 58 years to life does not qualify as one of those

Pet. App. 47

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“exceedingly rare’1 or “extreme” cases violating the Eighth Amendment. See, e.g.,

Harmelin, 501 U.S. at 961, 1009 (mandatory term of life in prison without the

possibility of parole for first-time offender possessing 672 grams of cocaine was not

cruel and unusual punishment); Rummel, 445 U.S. at 285 (mandatory life sentence

with possibility of parole for obtaining $120.75 under false pretenses, where

defendant had prior convictions for fraudulent use of a credit card and passing a

forged check was not cruel and unusual punishment). Accordingly, Petitioner is not

entitled to relief on tire basis of this claim.

IV.

Cumulative error.

Petitioner alleges that the cumulative effect of multiple errors rendered his trial

fundamentally unfair. Specifically, Petitioner argues that the combined effect of

Zavala’s false testimony and the prosecutor’s vouching for Zavala’s credibility

rendered Petitioner’s defense “far less persuasive than it might have been.” (ECF No.

45-1 at 15-16.)

Petitioner is correct that the “combined effect of multiple trial errors may give

rise to a due process violation” if it renders a trial fundamentally unfair, even where

each error considered individually would not require reversal. Parle v. Runnels, 505

F.3d 922, 927 (9th Cir. 2007) (citing Chambers v. Mississippi, 410 U.S. 284 (1973)

and Montana v. Egelhoff, 518 U.S. 37, 53 (1996)). However, where there is no single

constitutional error, there is “nothing to accumulate to a level of a constitutional

violation.” Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002).

In the._presenL_case, the Court has concluded that Petitioner has not

demonstrated that the prosecutor presented false testimony and that his claim of

improper vouching does not rise to the level of constitutional error, in these

circumstances, there is no error to accumulate and Petitioner’s cumulative error claim

necessarily fails. Thus, the state court’s rejection of this claim was neither contrary

to, noran unreasonable application of, clearly established federal law.

Pet App. 48

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Ineffective assistance of counsel.

Petitioner contends that he received ineffective assistance of counsel. His

claim includes two separate allegations, each of which is discussed below.

a. Clearly established federal law.

The Sixth Amendment guarantees that a criminal defendant will not be

convicted without the effective assistance of counsel. Strickland v. Washington, 466

U.S. 668, 685-686 (1984). In order to establish ineffective assistance of counsel, a

petitioner must identify the acts or omissions of counsel that were not the result of

reasonable professional judgment, and he must show that he was prejudiced by trial

counsel’s errors. Strickland, 466 U.S. at 690, 694; see Knowles v. Mirzayance, 556

U.S. Ill, 123, 127 (2009). To prove prejudice, it is not enough to show that counsel’s

errors had some conceivable effect on the outcome. Strickland, 466 U.S. at 693.

13.

Rather, the petitioner has the burden of showing a reasonable probability that, but for

14-

counsel’s errors, the result of the proceeding would have been different. Strickland,

466 U.S. at 694-695; see also Knowles, 556 U.S. at 127. Because petitioner bears the

burden of satisfying both prongs of the Strickland standard, a federal court “need not

determine whether counsel’s performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice ... that course should be followed.” Strickland, 466 U.S. at 687, 697.

b. Failure to object to prosecutorial vouching.

Petitioner contends that trial counsel failed to object to the prosecutor’s

statement during rebuttal in which she vouched for Zavala’s credibility. (ECF No.

45-1 at 17.)

To begin with, trial counsel reasonably could have chosen not to object to the

prosecution’s rebuttal because an objection likely would have focused undue

attention on the prosecution’s statement. See United States v. Necoechea, 986 F.2d

1273, 1281 (9th Cir. 1993) (“the failure to object during closing argument and

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opening statement is within the ‘wide range’ of permissible professional legal

conduct”); United States v. Molina, 934 F.2d 1440, 1448 (9th Cir. 1991) (“From a

strategic perspective ... many trial lawyers refrain from objecting during closing

argument to all but the most egregious misstatements by opposing counsel on the

theory that the jury may construe their objections to be a sign of desperation or hyper

technicality.”). On this record, Petitioner has not demonstrated that the trial counsel’s

failure to object to the prosecution’s remark amounted to deficient performance. See

Necoechea, 986 F.2d at 1281 (defense attorney’s failure to object during closing

argument to prosecutor’s vouching did not amount to ineffective assistance of

counsel); Centeno v. Kramer, 2009 WL 2525499, at *10 (C.D. Cal. Aug. 18, 2009)

(recognizing reasonable tactical basis for failing to object to prosecutor’s alleged

vouching during closing argument).

Moreover, assuming that trial counsel should have objected to the prosecutor’s

comment on Zavala’s credibility, Petitioner still has not shown prejudice stemming

from that failure. Even if counsel had objected to the prosecution’s argument and that

objection had been sustained, there is no reasonable probability that the outcome of

the trial would have been more favorable for Petitioner. As discussed above, the

evidence against Petitioner (most notably, the victim’s forensic interview and her

testimony about what Petitioner did to her) was strong. In addition, the trial court

instructed the jury that statements made by counsel during trial are not evidence, and

that the jury was the sole judge of the credibility of the witnesses and the weight to

be given to the testimony. Furthermore, the jury was presented with various reasons

for doubting Zavala’s credibility, none of which it found sufficient to undermine the

prosecution’s case. Given the foregoing, it is not reasonably probable that an

objection to the prosecutor’s isolated comment would have altered the outcome of

the trial, See Centeno, 2009 WL 2525499, at *10 (no reasonable likelihood of a

different outcome even if trial counsel had objected to prosecutor’s alleged vouching

during rebuttal).

Pet. App. 50

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c. Failure to accept the trial court’s offer to instruct the jury on attempt.

In his closing argument, Petitioner’s counsel argued that the medical evidence

contradicted Jane Doe’s allegation that Petitioner had sexual intercourse with her.

Specifically, he pointed to Dr. Vivanco’s testimony that Jane Doe’s hymen was

intact. Petitioner’s counsel mentioned Dr. Vivanco’s testimony that young children

do not always correctly interpret penetration. Even when an object is inserted only

past the labia, a young child might describe it as passing “in” the vagina.

Dr. Vivanco’s testimony suggested that it was possible that Petitioner placed his

penis into Jane Doe’s labia rather than all the way into her vagina. According to

Petitioner’s counsel, Dr. Vivanco’s testimony was speculative and inconsistent with

Jane Doc’s version of events. (See RT 790-791 [defense closing argument]; RT 239

241,254-255 [Dr. Vivanco’s testimony].)

During a break, the trial court noted defense counsel’s argument and raised the

possibility that the evidence supported the conclusion that Petitioner’s penis touched

Jane Doe’s vaginal area but did not penetrate it. The trial court expressed the opinion

that the evidence could be interpreted as showing that Petitioner attempted to rape

Jane Doe, but did not succeed. Based upon such an interpretation, the trial court stated

that it might be appropriate to give the jury instructions on “the lesser offense” of

attempted sexual intercourse with a child under the age of ten and inquired if

Petitioner’s counsel intended to argue in favor of such an instruction. (RT 798-799.)

Petitioner’s counsel responded that he was not requesting instructions on

attempted sexual penetration and clarified that this was a tactical decision. (RT 799

800.) The prosecutor also objected to an attempt instruction. She asserted that the

evidence indicated that a child might believe that a penis went “all the way in” even

if the penetration was slight, and that slight penetration of the labia was all that was

required to be guilty of sexual intercourse. (RT 799-800.)

Petitioner contends that trial counsel provided deficient performance by failing

to accept the trial court’s offer to instruct the jury on attempt as a lesser included

Pet. App. 51

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offense to the charges of unlawful sexual intercourse with a child under age ten. (ECF

No. 45-1 at 17-18.) Petitioner is not entitled to relief on the basis of this claim for

several reasons.

First, Respondent argues that this claim should be dismissed because it is

barred by the one-year statute of limitation. (ECF No. 52-1 at 20-21.) Petitioner

apparently concedes that this claim is untimely. (ECF No. 53 at 15.) Accordingly, it

is subject to dismissal. See 28 U.S.C. § 2244(d).

Furthermore, the claim fails on its merits. Petitioner’s counsel explicitly said

that he was making a strategic decision not to request instructions on attempted

sexual intercourse. The Ninth Circuit has recognized that in certain circumstances,

defense counsel might reasonably opt for an “all-or-nothing” strategy, forcing the

jury to choose between convicting on a severe offense and acquitting the defendant

altogether. See Crace v. Herzog, 798 F.3d 840, 852-853 (9th Cir. 2015). Here,

Petitioner’s defense was that Jane Doe fabricated her allegations against Petitioner in

order to live with her father. Under this theory, Petitioner was not guilty of any crime

against Jane Doe. In these circumstances, trial counsel’s tactical decision to force the

jury into an all-or-nothing verdict was not unreasonable. See Bashor v. Risley, 730

F.2d 1228,1241 (9th Cir. 1984) (counsel’s tactical decision to refrain from requesting

lesser included offense instructions, although incorrect, did not constitute ineffective

assistance); Centeno, 2009 WL 2525499, at *9 (although in hindsight, strategy was

unsuccessful, trial counsel made was a reasonable tactical decision to force the jury

into finding petitioner guilty of the robbery or acquitting him outright).

Last, Petitioner has not demonstrated prejudice resulting from trial counsel’s

allegedly deficient performance. As Respondent points out, the trial court’s

suggestion that attempted sexual intercourse was a lesser included offense of the

charged offense of sexual intercourse with a child under age ten was a misstatement

of the law. The elements of sexual intercourse with a child ten years of age or younger

are: (1) the defendant engaged in an act of sexual intercourse with the victim;

Pet. App. 52

Case 5:17-cv-00076-SJQ-AFM Document 54 Filed 02/08/19 Page 26 of 28 PagelD#:1978

(2) when the defendant did so, the victim was 10 years of age or younger; and (3) at

the time of the act, the defendant was at least 18 years old. See Cal. Penal Code

§ 288.7(a); CALCRIM No. 1127. California defines sexual intercourse as any

penetration, no matter how slight, of the vagina or genitalia by the penis. People v.

Dunn, 205 Cal. App. 4th 1086, 1097 (2012). Section 288.7(a) is a general intent

crime. See People v. Richardson, 43 Cal. 4th 959, 1018 (2008). In contrast, attempted

sexual intercourse consists of “two elements: a specific intent to commit the crime,

and a direct but ineffectual act done toward its commission.” Cal. Penal Code § 21a.

Because there are different mental states required, attempted sexual intercourse is not

a lesser included offense of the charged completed crime. People v. Mendoza, 240

Cal. App. 4th 72, 83 (2015). It follows that Petitioner was not entitled to the

instruction.

Moreover, Petitioner did not defend the charges based upon a claim that he

intended to have sexual intercourse v/ith Jane Doe but for one reason or another, his

attempts were unsuccessful. Indeed, the evidence at trial did not support such a

finding. Consequently, there is no reasonable likelihood that a jury would have

convicted him of attempted sexual intercourse. See, e.g., Gonzalez v. Holland, 2016

WL 2620553, at *8 (C.D. Cal. Mar. 31, 2016) (where petitioner did not defend

charges of sexual intercourse with a child ten years or younger by claiming that he

only attempted sexual intercourse, the failure to instruct the jury on attempted sexual

intercourse did not deprive him of his right to jury instructions addressing his

defense), report and recommendation adopted, 2016 WL 2626783 (C.D. Cal. May 5,

2016); Hooks v. Warden ofAvenal State Prison, 2009 WL 2180828, at *7 (N.D. Cal.

July 21, 2009) (counsel was not ineffective for failing to request jury instructions on

defense where no evidence supported that defense so the petitioner was not entitled

to jury instructions).

Based upon the foregoing, the state court’s determination of Petitioner’s

claims of ineffective assistance of trial counsel was neither contrary to, nor an

Pet. App. 53

Case 5:17-cv-00076-SJO-AFM Document 54 Filed 02/08/19 Page 27 of 28 Page ID #:1979

unreasonable application of, clearly established federal law.

V I.

Ineffective assistance of appellate counsel.

Petitioner contends that appellate counsel was ineffective for failing to raise

on appeal his claims of false presentation of evidence, cumulative error, cruel and

unusual punishment, and ineffective assistance of trial counsel. (ECF No. 45-1 at 17

18.)

A criminal defendant has the right to the effective assistance of counsel on his

first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 396-397 (1985); Miller v.

Keeney, 882 F.2d 1428, 1431 (9th Cir. 1989). Claims of ineffective assistance of

counsel on appeal are analyzed under the familiar standard set forth in Strickland.

See Smith v. Robbins, 528 U.S. 259, 285 (2000); Moormann v. Ryan, 628 F.3d 1102,

1106 (9th Cir. 2010). Accordingly, a petitioner must show that counsel’s

performance was objectively unreasonable, which in the appellate context means that

counsel acted unreasonably in failing to discover and brief a merit-worthy issue.

Smith, 528 U.S. at 285; Wildman v. Johnson, 261 F.3d 832, 841-842 (9th Cir. 2001).

Second, a petitioner must show prejudice, defined as a reasonable probability that,

but for appellate counsel’s failure to raise an issue, the petitioner would have

prevailed on his appeal. Smith, 528 U.S. at 285-286; Moormann, 628 F.3d at 1106.

As explained above, Petitioner has not identified any meritorious claims that

would entitle him to relief. Appellate counsel did not act unreasonably by failing to

raise meritless claims, and Petitioner could not be prejudiced by appellate counsel’s

failure to do so. See Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012) (“It should

be obvious that the failure of an attorney to raise a meritless claim is not prejudicial”);

Wildman, 261 F.3d at 840 (“[A]ppellate counsel’s failure to raise issues on direct

appeal does not constitute ineffective assistance when appeal would not have

provided grounds for reversal.”). It follows that the state court’s rejection of this

claim was neither contrary to, nor an unreasonable application of, clearly established

federal law.

Pet. App. 54

Case 5:3 7-CV-00076-SJO-AFM Document 54 Filed 02/08/19 Page 28 of 28 PagelD#:1980

RECOMMENDATION

For the foregoing reasons, it is recommended that the District Judge issue an

Order: (1) accepting and adopting this Report and Recommendation; and

(2) directing that Judgment be entered denying the petition and dismissing this action

with prejudice.

DATED: 2/8/2019

ALEXANDER F. MacKINNON

UNITED STATES MAGISTRATE JUDGE

Pet. App. 55

Case 5:17-cv-00076-SJO-AFM

Document 43-1

Filed 07/05/18

Page 1 of SUP8MQ0W

fFled

JUN 27 2018

Lodgment 8

Jorge Navarrete Clerk

S246807

Deputy

IN THE SUPREME COURT OF CALIFORNIA

En Banc

In re JORGE ARMANDO HERRERA SALGUERO on Habeas Corpus.

The petition for writ of habeas corpus is denied.

CANTIL-SAKAUYE

ChiefJustice

■1

Pet. App. 56

Case 5:17-cv-00076-SJO-AFM

Document33-9 Filed 11/20/17 Page lot3 PagelD#:1585

Lodgment 5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

puc«,^3.®^

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

E062563

Plaintiff and Respondent,

(Super.Ct.No. SWF1202846)

JORGE ARMANDO HERRERA

SALGUERO,

OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Michael J. Rushton,

Judge. Affirmed.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

Defendant Jorge Salguero is serving eight years plus 50 years to life after a jury

convicted him of charges resulting from the sexual abuse of his girlfriend’s six-year-old

daughter. We affirm the judgment.

Pet. App. 57

Case 5:17-cv-00076-SJO-AFM

Document 33-9 Filed 11/20/17 Page 2 of 3 PagelD#:1586

Facts and Procedure

Jane Doe first reported to a babysitter in 2010, when she was about five years old,

that defendant had abused her. The subject came up when Jane Doe was watching the

babysitter change a little boy’s diaper. Jane Doe commented that defendant’s penis was

like the boy’s except bigger and white stuff came out of it, and described a specific

incident of abuse. The babysitter told Jane Doe’s mother. The mother made defendant

leave her home for about a month, but then let him come back. When defendant returned

to the home, he told the babysitter that he did not know why he had abused Jane Doe and

promised never to do it again.

In 2012, when she was seven years old, Jane Doe reported additional instances of

abuse to her father, who then called police. During a forensic interview, Jane Doe

described three specific instances that took place when she was six years old. This

interview was played for the jury.

On May 1, 2013, the People filed an information charging defendant with one

count of committing a lewd act against a child (Pen. Code § 288, subd. (a)) and two

counts of unlawful sexual intercourse with a child under age 10 (Pen. Code § 288.7, subd.

(a))The first trial ended in a mistrial on June 17, 2014, when the babysitter, a witness

for the prosecution, testified unexpectedly that defendant had made an admission to her

while apologizing for abusing the child. At the end of the second trial, the jury convicted

defendant on October 29, 2014, on all counts.

Pet. App. 58

Case 5:17-cv-00076-SJO-AFM Document 33-9 Filed 11/20/17 Page 3 of 3 Page ID #:1587

On December 12, 2014, the court sentenced defendant to the upper term of eight

years for the lewd act and consecutive terms of 25 years to life for each of the other two

counts, for a total sentence of eight years plus 50 years to life.

This appeal followed.

Discussion

This court appointed counsel to represent defendant on appeal. Counsel has filed a

brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v.

California (1967) 386 U.S. 738, setting forth a statement of the case and identifying a

potential arguable issue. Defendant was offered an opportunity to file a personal

supplemental brief, which he has not done.

Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent

review of the record and find no arguable issues.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

KING

CODRINGTON

Pet. App. 59

Case 5:17-cv-00076-SJO-AFM Document 33-4 Filed 11/20/17 Page 2 of 142 Page ID

#:831

SUPERIOR COURT - STATE OF CALIFORNIA

COUNTY OF RIVERSIDE

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

vs.

JORGE ARMANDO HERRERA-SALGUERO,

Defendant.

)

Case No. SWF1202846

REPORTERS' TRANSCRIPT OF TRIAL PROCEEDINGS

BEFORE THE HONORABLE MICHAEL J. RUSHTON

October 29, 2014; December 12, 2014

APPEARANCES:

For the Plaintiff:

OFFICE OF THE DISTRICT ATTORNEY

By: JULIE BALDWIN

30755-D Auld Road, Third Floor

Murrieta, California 92563

For the Defendant:

OFFICE OF THE PUBLIC DEFENDER

By:

RICHARD BRIONES-COLMAN

30755-D Auld Road, Suite 2233

Murrieta, California 92563

Reported by:

BLAKE WASHINGTON, CSR No. 13027

SANDRA WALKER, CSR No. 6977

BLAKE WASHINGTON,

Pet. App. 60

CSR

Case 5:17-cv-00076-SJO-AFM Document 33-4 Filed 11/20/17 Page 89 of 142 Page ID

#:918

our job anyway to be certain of things in trials.

law.

he asks you are do you have doubts?

based in reason?

Are they based in something that you know

about humanity?

And if you have doubts and they're reasonable,

let him go even if you don't like it, even if it makes you sick.

For that reason, I'm asking you to find him not guilty

because it's the law and it's the right thing to do here based

on the facts.

matter.

It's not the

The judge doesn't ask you are you certain of this?

Evaluate them.

What

Are they

Thank you for your attention in this important

THE COURT:

MS. BALDWIN:

Good afternoon.

Ms. Baldwin?

All right.

Thank you.

After I sit down, you will have heard

And you will collectively walk through the door, sit

it all.

down as a group, and start your deliberations in this case.

this point, once I sit down, you have heard all of the evidence

and all of — all that you're going to hear about this case.

The jobs of the lawyers will be completed, and

rendering a decision will be your job.

promised each one of us in this courtroom that you will accept

and that you were willing to do.

One that you have all

And what happens when you do that, when you get

together and you start talking about the facts of this case?

What happens, submit to you, is that the presumption of

innocence is lifted.

it, that you would listen with an open mind, and you have.

You

have listened to the evidence.

You

have taken notes, abided by the many instructions given to you

You all promised that you would abide by

You have kept an open mind.

BLAKE WASHINGTON,

Pet. App. 61

CSR

815

Case 5:17-cv-00076-SJO-AFM Document 33-4 Filed 11/20/17 Page 92 of 142 Page ID

#:921

just describing how he would take her hand forcefully, put it on

his penis, and have her move it back and forth, but actually

accompany those words with gestures, that we all know this has

happened.

How else does the defense explain how a seven-year-old

has personal knowledge to that degree of such inexplicable

behavior?

somehow -- and I'm not really clear who it is that he's blaming

for this personal knowledge.

it sounds like it.

opening statement that this case relies on the credibility of

Cristina Zavala.

Cristina Zavala told us is absolutely the truth.

What I gathered from his closing remarks is that

Is it Cristina Zavala?

Or, is it Carlos?

Sometimes

Because he told you in

That's not true, but I believe that what

You may not agree with how she handled the situation,

She is a simple

but let's remember who is Cristina Zavala?

person.

defense wants you to believe concocted this entire scheme five

years ago when she told Elizabeth about a conversation that she

had with (Jane Doe).

She's not some sophisticated mastermind that the

I want to talk to you about what is required for you to

acquit him in this case.

order to let him walk and to find him not guilty?

would have to believe that when (Jane Doe) was five, her

babysitter, who you met, who's testified in this case, Cristina

Zavala, at the time she's a family friend, trusted to watch all

of these children, that she decided for some unknown reason

let's start laying the ground work for a grand conspiracy, and

let's let it play out slowly over the course of five years.

What would you have to believe in

BLAKE WASHINGTON,

Pet. App. 62

CSR

Well, you

818

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.