Petition for Writ of Certiorari — Shawn Edward Shaffer, Petitioner v. James Hill, Warden
Supreme Court briefNov 3, 2025
Ask Donna
What actually matters in this document.
Text
APPENDIX TABLE OF CONTENTS
FEDERAL OPINIONS AND ORDERS
Order, U.S. Court of Appeals for the
Ninth Circuit, 2025 U.S. App. LEXIS 26664
(April 22, 2025) ................................................... 1a
Judgment, U.S. District Court for the Central
District of California (March 14, 2024) ............. 3a
Order Accepting Findings and Recommendations
of U.S. Magistrate Judge, U.S. District Court
for the Central District of California,
2024 U.S. Dist. LEXIS 4551 (March 14, 2024).. 4a
Order Denying Certificate of Appealability,
U.S. District Court for the Central District of
California (March 14, 2024) ............................. 10a
Report and Recommendation of U.S.
Magistrate Judge, U.S. District Court
for the Central District of California,
2023 U.S. Dist. LEXIS 236268
(July 13, 2023) .................................................. 12a
CALIFORNIA STATE OPINIONS AND ORDERS
Order Denying Petition for Writ of Habeas
Corpus, Supreme Court of California,
2021 Cal. LEXIS 3895 (June 9, 2021).............. 35a
Order Denying Petition for Writ of Habeas
Corpus, Court of Appeal of the State of
California, Fourth Appellate District,
Division One (January 26, 2021) ..................... 36a
APPENDIX TABLE OF CONTENTS (Cont.)
Order Denying Petition for Writ of Habeas
Corpus, Superior Court of the State of
California, County of Riverside
(October 14, 2020) ............................................ 45a
Order Denying Petition for Review, Supreme Court
of California, 2019 Cal. LEXIS 7678
(October 9, 2019) .............................................. 52a
Order Modifying Opinion and Denying Rehearing,
Court of Appeal of the State of California,
Fourth Appellate District, Division One,
2019 Cal. App. Unpub. LEXIS 5439
(August 14, 2019) ............................................. 53a
Opinion, Court of Appeal of the State of California,
Fourth Appellate District, Division One,
2019 Cal.App. Unpub. LEXIS 4863
(July 23, 2019) .................................................. 55a
REHEARING ORDER
Order Denying Motion for Reconsideration,
U.S. Court of Appeals for the Ninth Circuit
(June 9, 2025) ................................................... 80a
OTHER DOCUMENT
Clerk Letter, Supreme Court of the United States
(July 21, 2025) .................................................. 81a
App.1a
ORDER, U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT,
2025 U.S. APP. LEXIS 26664
(APRIL 22, 2025)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________
SHAWN EDWARD SHAFFER,
Petitioner-Appellant,
v.
RAYMOND MADDEN, Warden,
Respondent-Appellee.
________________________
No. 24-2343
D.C. No. 2:22-cv-02451-SPG-MRW
Central District of California, Los Angeles
Before: CANBY and MILLER, Circuit Judges.
ORDER
The request for a certificate of appealability
(Docket Entry No. 3) is denied because appellant has
not shown that “jurists of reason would find it
debatable whether the petition states a valid claim of
the denial of a constitutional right and that jurists of
reason would find it debatable whether the district
court was correct in its procedural ruling.” Slack v.
App.2a
McDaniel, 529 U.S. 473, 484 (2000); see also 28 U.S.C.
§ 2253(c)(2); Gonzalez v. Thaler, 565 U.S. 134, 140-41
(2012); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Any pending motions are denied as moot.
DENIED.
App.3a
JUDGMENT, U.S. DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA
(MARCH 14, 2024)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
________________________
SHAWN EDWARD SHAFFER,
Petitioner,
v.
RAYMOND MADDEN, Warden,
Respondent.
________________________
Case No. CV 22-2451-SPG-(MRW)
Before: Hon. Sherilyn PEACE GARNETT,
U.S. District Judge.
JUDGMENT
Pursuant to the Court’s Order Accepting the
Report and Recommendation of the United States
Magistrate Judge, and overruling Petitioner’s objections,
IT IS ADJUDGED that this action is DISMISSED
with prejudice.
/s/ Sherilyn Peace Garnett
U.S. District Judge
Dated: March 14, 2024
App.4a
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF U.S. MAGISTRATE
JUDGE, U.S. DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA,
2024 U.S. DIST. LEXIS 4551
(MARCH 14, 2024)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
________________________
SHAWN EDWARD SHAFFER,
Petitioner,
v.
RAYMOND MADDEN, Warden,
Respondent.
________________________
Case No. CV 22-2451-SPG-(MRW)
Before: Hon. Sherilyn PEACE GARNETT,
U.S. District Judge.
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED STATES
MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has
reviewed the Petition, the records on file, and the
Report and Recommendation (“Report”) of the United
States Magistrate Judge. Further, the Court has
engaged in a de novo review of those portions of the
Report to which objections have been made.
App.5a
The Report recommends the denial of habeas relief
for Petitioner’s claims challenging his convictions for
sex offenses against children. (ECF No. 23.) For the
following reasons, Petitioner’s Objections to the Report
(ECF No. 26) do not warrant a change to the Magistrate Judge’s findings or recommendation.
Petitioner objects that the evidence was insufficient, under Jackson v. Virginia, 443 U.S. 307 (1979),
to sustain some of his convictions. (ECF No. 26 at 1219.) Petitioner argues that, as to Counts One and Two,
evidence showed that the victim was 14 years old
when the abuse occurred, while the criminal statute
required that he be under the age of 14. (Id. at 14-17.)
As the Report found, however, although the evidence
about the victim’s age was somewhat conflicting, the
victim did testify he was under the age of 14 when
Petitioner molested him twice. (Dkt. No. 23 at 6, 10
(citing ECF No. 14-1 at 79, 96-97, 101)). A reasonable
jury could credit that testimony, rather than conflicting
testimony about the victim being older. See United
States v. Nevils, 598 F.3d 1158, 1169 (9th Cir. 2010)
(en banc) (“[W]e do not construe the evidence in the
light most favorable to innocence, and therefore do not
consider [appellant’s] argument that there is an equally
plausible innocent explanation for [the evidence].”).
Petitioner relatedly objects that the state court
failed to consider the totality of the evidence about the
victim’s age, rendering its factual findings unreasonable under 28 U.S.C. § 2254(d)(2). (ECF No. 26 at 17.)
But a federal court does not review a claim of insufficiency of the evidence through the lens of 28 U.S.C.
§ 2254(d)(2). Sarausad v. Porter, 479 F.3d 671, 678
(9th Cir. 2007) (“A court under Jackson makes no ‘determination of the facts’ in the ordinary sense of
App.6a
resolving factual disputes.”), reversed on other ground by
Waddington v. Sarausad, 555 U.S. 179, 197 (2009).
Petitioner relatedly objects that, as to Counts
Four and Five, the evidence was insufficient to show
that he used force or fear to abuse the victim. (ECF No.
26 at 18-19.) Petitioner points out that the victim, on
cross-examination, admitted his characterization of
the events was “highly misleading.” (Id. at 19.) But
the impeachment of a witness on cross-examination
does not render the evidence insufficient. See Nevils,
598 F.3d at 1170 (“We cannot second-guess the jury’s
credibility assessments[.]”). Moreover, this conclusion
does not mean, as Petitioner suggests, that reviewing
courts have refused to consider the totality of the evidence presented at his trial. (ECF No. 26 at 19.)
Rather, it means that reviewing courts cannot reweigh
the trial evidence simply to second-guess how the jury
weighed the evidence. See McDaniel v. Brown, 558
U.S. 120, 134 (2010) (per curiam) (noting that federal
courts must “preserve ‘the factfinder’s role as weigher
of the evidence’ by reviewing ‘all of the evidence . . .
in the light most favorable to the prosecution”) (emphasis and ellipsis in original) (quoting Jackson, 443
U.S. at 319).
Petitioner objects that his claim of ineffective
assistance of counsel, for counsel’s alleged failure to
investigate, is not procedurally barred. (ECF No. 26 at
19-34.) Petitioner argues that Respondent did not
raise a procedural-bar defense in the Answer and that
it was improper for the Report to raise it sua sponte
unless it had been evident from the face of the
Petition. (Id. at 20-21.) To the contrary, the Magistrate
Judge had the discretion to raise the issue of procedural
bar sua sponte even if Respondent had failed to raise
App.7a
it in the Answer. See Vang v. Nevada, 329 F.3d 1069,
1073 (9th Cir. 2003) (recognizing that “principles of
comity, federalism, and judicial efficiency would permit
us to apply a procedural bar even though the state
failed to raise it”); see also Wood v. Milyard, 566 U.S.
463, 473 (2012) (recognizing that federal courts have the
authority, though not the obligation, to raise forfeited
procedural defense on their own initiative).
Petitioner relatedly objects that, as to his claim of
ineffective assistance of counsel, the claim is not
procedurally barred and that the California Court of
Appeal was wrong in finding a procedural bar based
on untimeliness. (ECF No. 26 at 29-33.) The Court
generally has no jurisdiction to review whether the
California Court of Appeal’s finding was wrong. See
Martinez v. Ryan, 926 F.3d 1215, 1224 (9th Cir. 2019)
(“We lack jurisdiction to consider that contention.”)
(citing Poland v. Stewart, 169 F.3d 573, 584 (9th Cir.
1999) (“Federal habeas courts lack jurisdiction . . . to
review state court applications of state procedural
rules.”); Johnson v. Foster, 786 F.3d 501, 508 (7th Cir.
2015) (“[A] federal habeas court is not the proper body
to adjudicate whether a state court correctly interpreted its own procedural rules, even if they are the
basis for a procedural default.”)). Even if the Court did
have the authority to consider the question, this was
not an “unusual” instance where it was clear that the
California Court of Appeal’s untimeliness determination was wrong. Cf. Sivak v. Hardison, 658 F.3d 898,
908 (9th Cir. 2011) (recognizing that a federal court in
an “unusual” case may reject a state court’s use of a
procedural bar as erroneously applied).
Petitioner objects that, on the merits, his trial
counsel was ineffective for failing to perform a com-
App.8a
petent investigation, which led to a limited and inadequate examination of witnesses. (ECF No. 26 at 3439.) Petitioner argues that the California Court of
Appeal unreasonably rejected evidence impeaching
the government’s witnesses as “merely cumulative,
corroborative, collateral or impeaching.” (Id. at 37-38.)
This objection does not undermine the Report’s finding
that the California Court of Appeal’s decision was not
objectively unreasonable. As the Report found, “none
of the individuals identified in Petitioner’s submissions
remotely approaches the level of ‘crucial’ or ‘star
witness’ for either party regarding the molestation at
issue.” (ECF No. 23 at 17.)
Petitioner objects that his right to fair notice of
the charges was violated when he was “ambushed by
the prosecution’s alteration of their theory as to
Counts 4 and 5 during closing argument[.]” (ECF No.
26 at 41.) Petitioner characterizes this claim as an
arbitrary deprivation of a state-created right in violation
of Hicks v. Oklahoma, 447 U.S. 343 (1980). (ECF No.
26 at 39.) This appears to be too broad a reading of
Hicks. See Gonzalez v. Wong, 667 F.3d 965, 995 (9th Cir.
2011) (holding that petitioner “reads Hicks too broadly”
by relying on it to support a claim of prosecutorial
misconduct during closing arguments) (citing Chambers
v. Bowersox, 157 F.3d 560, 565 (8th Cir. 1998) (distinguishing Hicks and “reject[ing] the notion that every
trial error, even every trial error occurring during the
sentencing phase of a capital case, gives rise to a claim
under the Due Process Clause”)). In any event, clearly
established federal law does not hold that a prosecution’s alteration of their theory during trial violates a
criminal defendant’s constitutional right to adequate
notice of the charges against him. See Lopez v. Smith,
App.9a
574 U.S. 1, 5 (2014) (per curiam) (stating that the
Supreme Court has never clearly established “that a
defendant, once adequately apprised of [the prosecutor’s theory of liability], can nevertheless be deprived
of adequate notice by a prosecutorial decision to focus
on another theory of liability at trial”).
ORDER
IT IS ORDERED that (1) the Report and Recommendation of the Magistrate Judge is accepted and
adopted; and (2) Judgment shall be entered denying
the Petition and dismissing this action with prejudice.
/s/ Sherilyn Peace Garnett
U.S. District Judge
Dated: March 14, 2024
App.10a
ORDER DENYING CERTIFICATE OF
APPEALABILITY, U.S. DISTRICT COURT FOR
THE CENTRAL DISTRICT OF CALIFORNIA
(MARCH 14, 2024)
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
________________________
SHAWN EDWARD SHAFFER,
Petitioner,
v.
RAYMOND MADDEN, Warden,
Respondent.
________________________
Case No. CV 22-2451-SPG-(MRW)
Before: Hon. Sherilyn PEACE GARNETT,
U.S. District Judge.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Rule 11 of the Rules Governing Section 2254
Cases in the United States District Courts requires a
district court to issue or deny a certificate of
appealability when it enters a final order adverse to
the applicant.
Under 28 U.S.C. § 2253(c)(2), a COA may issue
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” The Supreme
App.11a
Court has held that this standard means 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.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (internal quotation marks omitted). The COA
inquiry is only a “threshold question” to determine
whether a decision is “debatable.” It is made “without
full consideration of the factual or legal bases adduced
in support of the claims.” Buck v. Davis, 580 U.S 100,
116 (2017) (quotation marks omitted).
Here, after duly considering Petitioner’s contentions
in support of the claims alleged in the petition, the
Court concludes that petitioner failed to make the
requisite showing for the issuance of a Certificate of
Appealability.
Accordingly, a Certificate of Appealability is denied
in this case.
/s/ Sherilyn Peace Garnett
U.S. District Judge
Dated: March 14, 2024
App.12a
REPORT AND RECOMMENDATION
OF U.S. MAGISTRATE JUDGE,
U.S. DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA,
2023 U.S. DIST. LEXIS 236268
(JULY 13, 2023)
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
________________________
SHAWN EDWARD SHAFFER,
Petitioner,
v.
RAYMOND MADDEN, Warden,
Respondent.
________________________
Case No. CV 22-2451-SPG-(MRW)
Before: Hon. Michael R. WILNER,
U.S. Magistrate Judge.
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to
the Honorable Sherilyn P. Garnett, 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.
App.13a
Summary of Recommendation
This is a state habeas action. A jury convicted
Petitioner of committing numerous sex offenses against
children. On habeas review, Petitioner challenges the
sufficiency of the evidence as to certain counts of conviction, and alleges that his trial lawyer was ineffective.
However, the Court concludes that the state court
decisions denying relief on Petitioner’s claims were
neither contrary to, nor an unreasonable application
of, clearly established federal law. As a result, the
Court recommends that the petition be denied.
Facts and Procedural History
Petitioner was convicted of committing sexual
offenses against five boys. (Docket # 14-6 at 1-2.) Petitioner sexually abused the children numerous times,
beginning when they were between the ages of 10
and 13 years old. (Id. at 4.) The key evidence at trial
included the victims’ explicit testimony detailing the
abuse. (Id. at 4-13.)
The jury convicted Petitioner of 13 counts of
sodomy, lewd conduct, and other sexual offenses and
enhancements. The trial court sentenced Petitioner to
life in prison. (Id. at 2-3.)
On direct appeal, Petitioner challenged the sufficiency of the evidence as to only five of the counts of
conviction. Petitioner also alleged ineffective assistance
of counsel and insufficient notice regarding the charges
against him. (Id. at 1-2.) In a reasoned, unpublished
decision, the state appellate court affirmed Petitioner’s convictions. (Docket # 14-6.) The state supreme
court denied review without comment. (Docket # 14-10.)
App.14a
Petitioner subsequently sought habeas relief in
the state courts. The state appellate court determined
that all of Petitioner’s habeas claims were procedurally
barred as “repetitive,” successive, or untimely. (Docket
# 14-14 at 3-4.) The state appellate court also found
the claims to be without merit for failing to state a
prima facie case for relief. (Id. at 6.) The state supreme
court denied relief without comment. (Docket # 14-16.)
This federal action followed. (Docket # 4.)
Discussion
Standard of Review under AEDPA
Under AEDPA, federal courts may grant habeas
relief to a state prisoner “with respect to any claim
that was adjudicated on the merits in State court proceedings” only if that 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).
In a habeas action, this Court generally reviews
the reasonableness of the state court’s last reasoned
decision on a prisoner’s claims. Murray v. Schriro, 746
F.3d 418, 441 (9th Cir. 2014); Harrington v. Richter,
562 U.S. 86, 99 (2011). Here, the state appellate court’s
opinion on direct appeal was the last reasoned decision addressing the substance of Petitioner’s claims.
App.15a
(Docket # 14-6.) The Court reviews that decision under
AEDPA for reasonableness. In doing so, the Court
acknowledges that it received and independently
reviewed the relevant portions of the state court
record. Nasby v. McDaniel, 853 F.3d 1049, 1053 (9th
Cir. 2017).
***
Overall, AEDPA presents “a formidable barrier to
federal habeas relief for prisoners whose claims have
been adjudicated in state court.” Burt v. Titlow, 571
U.S. 12, 19 (2013). On habeas review, AEDPA places
on a prisoner the burden to show that the state court’s
decision “was so lacking in justification that there was
an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement” among “fairminded jurists.” Richter,
562 U.S. at 102; Shinn v. Kayer, ___ U.S. ___, 141 S.
Ct. 517, 524 (2020). Federal habeas corpus review
under AEDPA therefore serves as “a guard against
extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error correction”
in the state court system. Richter, 562 U.S. at 102.
Timeliness of Federal Action
In its answer to the petition, the Attorney General
argued that Petitioner’s federal action is untimely
under AEDPA. (Docket # 13 at 22-26.) The Court summarily rejects that contention.
A state prisoner ordinarily has one year from the
termination of her or his direct appeal (90 days after
the denial of review in the state supreme court
(assuming no request for certiorari with the U.S.
Supreme Court)) to initiate a habeas action in federal
App.16a
court. 28 U.S.C. § 2244(d)(1). That period is tolled
during the pendency of a “properly filed” post-conviction
state habeas action (statutory tolling) and a period of
time attributable to the presentation of such an action
in a higher state court (gap tolling). 28 U.S.C. § 2244
(d)(2).
The parties agree that Petitioner filed his federal
action well after the one-year period following when
his conviction became final. There is also no dispute
that Petitioner maintained a series of state habeas
proceedings that, if considered to be “properly filed,”
would lead to enough statutory and gap tolling to render
the federal action timely. (Docket # 13 at 24-25; 16-1
at 9-10.)
The Attorney General’s argument hinges on the
nature of the state appellate court’s denial of habeas
relief in early 2021. The state contends that the appellate court ruling rendered that habeas petition (and,
by extension, the later supreme court petition) not
“properly filed.”
That argument is unavailing. The state appellate
court concluded that Petitioner’s habeas claims were
procedurally barred and without merit. (Docket # 1414.) Notably, the appellate court expressly distinguished
between and among Petitioner’s claims that were: (a)
presented on direct appeal; (b) not presented on direct
appeal, but “could easily have been asserted” at that
stage; and (c) untimely as a matter of state law. (Id,
at 3-4.)
It is well settled law that a habeas petition that
contains non-time-barred claims is “properly filed”
under AEDPA – even if those claims are precluded
from leading to relief on other procedural grounds –
App.17a
for accrual of statutory tolling under Section 2254(d)(2).
Artuz v. Bennett, 531 U.S. 4, 8 (2000); Campbell v.
Henry, 614 F.3d 1056, 1060-61 (9th Cir. 2010) (same);
Torres v. Sullivan, No. CV 17-423 DSF (JPR), 2017
WL 2952925 at *8 (C.D. Cal. 2017) (“Because the state
supreme court indicated that it found the petition
‘timely but deficiently pleaded,’ Petitioner’s state
habeas petitions were properly filed, and he is entitled
to statutory tolling for their entire pendency in state
court.”).
Here, the state appellate court declined to find
that all of Petitioner’s habeas claims were untimely
under state law. That renders his petition timely and
“properly filed” as a matter of federal law, and
therefore eligible for statutory tolling. Bennett, 531
U.S. at 8. The federal action is not time-barred.1
Sufficiency of Evidence (Ground One)
Petitioner argues there was insufficient evidence
presented at trial to establish elements of offenses
regarding (a) the age of one of the victims and (b)
whether Petitioner used force or fear to commit a
crime against another victim. (Docket # 4 at 60-62.)
Relevant Facts and Decision Below
The jury convicted Petitioner of, inter alia, committing two lewd acts on victim S.F. when the boy was
under the age of 14. During the trial, S.F. initially testified that he was “probably about 13 or 14 years old”
when Petitioner molested him. (Docket # 14-1 at 73,
1 Because of this finding, the Court declines to take up the parties’
alternative contentions about the availability of equitable tolling.
(Docket # 16-1 at 10; # 21.)
App.18a
78, 100.) At one point, S.F. testified that Petitioner
assaulted him only once. (Id. at 96.) However, after further questioning from the prosecution, S.F. confirmed
that Petitioner molested him twice, and that the boy
was “under 14” at the time. (Id. at 79, 96-97, 101.)
The jury also convicted Petitioner of committing
lewd acts on victim J.W. through the use of force or
fear. J.W. testified that during a camping trip, Petitioner molested him while driving in a vehicle. J.W.
explained that Petitioner told him to get naked while
J.W. drove the car and that he complied “out of fear.”
(Id. at 254, 308-311.) J.W. also stated that “[i]t was
one of those things where, you know, that if you don’t
[] comply, that it’s gonna possibly go the other way
and not be good.” (Id. at 254.)
***
On direct appeal, the appellate court concluded
that “sufficient evidence supports the jury’s findings
that [Petitioner] lewdly touched S.F. two separate
times, and that S.F. was under the age of 14 both
times.” (Docket # 14-6 at 18.) The court applied the
governing standard, indicating that it reviewed “the
record in the light most favorable to the judgment.”
(Id. at 17.) The court noted that “evidence in support
of a jury’s verdict is not insufficient just because the
evidence is conflicting.” (Id. at 16.) The state court also
explained that it cannot “reweigh the evidence, reevaluate S.F.’s credibility, or reverse the convictions” merely
based on inconsistencies with the trial testimony.
(Id.) The appellate court specifically explained that
the offense of lewd touching of a minor under state law
“required proof of the minor’s age at the time of
touching.” (Id. at 16, citing Penal Code § 288, subd. (a).)
App.19a
The court then evaluated the victim’s testimony
regarding the incidents at issue. The court acknowledged the conflicting nature of some of the testimony.
However, “the jury resolved the conflicting testimony
by accepting beyond a reasonable doubt S.F.’s testimony that he was 13 both times [Petitioner] lewdly
touched him.” (Id. at 17.) Moreover, the court noted that
the boy’s testimony was detailed, “markedly different
from the description of the first touching, supporting
the jury’s finding that [Petitioner] lewdly touched S.F.
twice,” and was corroborated by the witness’s prior
statements to the police. (Id. at 17.) From this, the
appellate court held that sufficient evidence supported the jury’s findings regarding the S.F. offenses.
As for the crimes against J.W., state law required
proof that Petitioner “used duress” sufficient to “coerce
a reasonable person” to perform acts to which “one
otherwise would not have submitted.” (Id. at 19
(quoting cases).) The court gave an extensive summary
of the circumstances under state law that establish
duress by “psychological coercion.” (Id. at 18) (citing
People v. Schulz (1992) 2 Cal.App.4th 999, 1005.) The
court noted the following evidence:
J.W.’s young age and short stature during
the incidents;
Petitioner’s “position of authority and
dominance”; and
J.W.’s testimony that he “felt that he had to
do what [Petitioner] told him to do.”
(Id. at 19.) The court reasoned that J.W.’s “testimony
was neither physically impossible nor inherently improbable and was sufficient by itself to support the
conviction” under state law. (Id.)
App.20a
Relevant Law
A criminal defendant may be convicted only by
proof beyond a reasonable doubt of every element
necessary to constitute a charged crime or enhancement. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).
The relevant issue for a reviewing court under Jackson
is “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.” Id. at 319 (emphasis
in original); Garrett v. Madden, 859 F. App’x 156, 158
(9th Cir. 2021) (same).
Review under AEDPA is doubly-deferential. A
federal court’s consideration is limited to the determination of whether the state court’s analysis – which
itself defers to a jury’s verdict – was “objectively unreasonable.” Cavazos v. Smith, 565 U.S. 1, 2 (2011). That
is a federal court cannot “intrude on the jury’s role ‘to
resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to
ultimate facts.’” Musacchio v. United States, 577 U.S.
237, 243 (2016) (quoting Jackson, 443 U.S. at 319).
***
In applying Jackson, the federal court must refer
to the substantive provisions of California criminal law.
Jackson, 443 U.S. at 324 n.16. A state court’s interpretation of state law “binds a federal court sitting in
habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76
(2005); Polina v. Montgomery, 833 F. Appx. 51, 55 (9th
Cir. 2020) (same).
Under Penal Code section 288(a), lewd touching
of a minor under the age of 14 years requires proof of
the minor’s age at the time of the touching.
App.21a
To be convicted of violating Penal Code section
288(b)(1), the prosecution must prove that a defendant
committed a lewd act “upon or with the body of a child
under the age of 14 years [] ‘by use of force, violence,
duress, menace, or fear of immediate and unlawful
bodily injury.’” Baird v. Muniz, No. ED CV 16-2202 R
(KS), 2017 WL 3575876 at *7 (C.D. Cal. 2017) (quoting
statute). Under California law, duress is “a direct or
implied threat of force, violence, danger, hardship or
retribution sufficient to coerce a reasonable person of
ordinary susceptibilities to (1) perform an act which
otherwise would not have been performed or (2) acquiesce in an act to which one otherwise would not have
submitted.” People v. Soto, 51 Cal. 4th 229, 246 (2011)
(quotation omitted); Castro v. Holland, No. ED CV 151094 JAK (SS), 2016 WL 7383799 at *9 (C.D. Cal.
2016).
Duress “involves psychological coercion.” People
v. Schulz, 2 Cal. App. 4th 999, 1005 (1992). This may
be established by considering the “total circumstances”
presented at trial. People v. Pitmon, 170 Cal. App. 3d
38, 51 (1985). Those circumstances may include “the
relationship between the defendant and the victim
and their relative ages and sizes.” People v. Schulz, 2
Cal. App. 4th 999, 1005 (1992).
Analysis
On doubly-deferential review, Petitioner is not
entitled to habeas relief on these claims. The state
court expressly analyzed Petitioner’s claim by reference
to Jackson and state law analogues. In doing so, the
court summarized and reviewed the evidence at trial
in detail.
App.22a
The appellate court then reviewed the evidence of
Petitioner’s conduct through the lens most beneficial to
the jury’s findings. Jackson, U.S. at 319; Cavazos, 132
S. Ct. at 4. The court concluded that S.F.’s conflicting
testimony was sufficient to support the jury’s finding
that Petitioner molested him twice while S.F. was
under the age of 14. Petitioner’s conclusory assertion
that the state court “completely disregards significant
aspects” of the victim’s testimony does not demonstrate
the unreasonableness of the appellate analysis.
(Docket # 16-1 at 20.) What Petitioner now calls “clear
and uncontroverted facts” in the child’s testimony
were fully aired and argued to the jury. (Id.) Neither
the appellate court nor this habeas court are entitled
to second-guess their conclusion. Musacchio, 577 U.S.
at 243.
The same holds true as to the adequacy of the
proof of the duress / fear element of the J.W. offenses
of conviction. Again, the court of appeal summarized
state law and discussed the trial evidence at length.
The state court’s analysis of its own laws is binding on
this federal court. Bradshaw, 546 U.S. at 76. The
court noted the evidence of: J.W.’s age compared to
Petitioner; Petitioner’s position of authority; and J.W.’s
testimony of the duress and coercion he felt when
alone with Petitioner. The court concluded that this
proof was sufficient to support the jury’s finding of
duress. Soto, 51 Cal. 4th at 246; Schulz, 2 Cal. App.
4th at 1005; Pitmon, 170 Cal. App. 3d at 51. Petitioner’s
bare allegation that he did not overtly threaten the
victim (Docket # 16-1 at 21) is inadequate to establish
a violation of the federal constitution.
***
App.23a
Overall, the state court decision: (a) identified the
correct federal standard; (b) reviewed the facts and
evidence at trial; and (c) analyzed the jury’s findings
under relevant state criminal law in detail. Jackson,
443 U.S. at 319; Musacchio, 577 U.S. at 243. The decision was not “so lacking in justification” as to violate
the Constitution or constitute an “extreme malfunction”
of the state criminal justice system. Richter, 562 U.S.
at 102; Burt, 571 U.S. at 19. On deferential review,
habeas relief is not warranted.
Ineffective Assistance of Counsel Claim (Ground
Two)
Petitioner claims that his trial lawyer provided
ineffective assistance. Petitioner contends that his
lawyer failed to properly interview potential witnesses
before trial. He also contends that the lawyer failed to
elicit important information from the victims during
their cross examination. (Docket # 4 at 65-74.)
Relevant Facts and Decision Below
Petitioner’s post-conviction claims of ineffective
assistance center on his contention that he provided
“enormous amounts of information to trial counsel”
before trial. (Docket # 14-15 at 87 (state habeas petition).) This included “an extensive list of witnesses who
were commonly involved in and around his life” at the
time of the accusations. (Id.)
Petitioner broadly claims that the trial lawyer
failed to “engage in a full-fledged investigation” even
though Petitioner had “the expectation that all witnesses would be interviewed” in the run-up to trial.
These individuals either had beneficial things to offer
about Petitioner (including several young men who
App.24a
denied that Petitioner assaulted them) or did not observe
that the victims “exhibit any indicators of sexual,
physical, or verbal abuse.” (Id. at 80.)
Additionally, Petitioner critiques the manner by
which the lawyer questioned the victims at trial. Petitioner contends that the lawyer “did not take the
opportunity to fully probe the obvious motivations” of
the victims regarding their related civil claims against
Petitioner. Petitioner also faults his lawyer for not
fully questioning the victims to discover their age
(relevant to the enhanced criminal convictions) at the
time of the abuse. (Id. at 95.)
On direct appeal, the appellate court considered
Petitioner’s claims regarding the questioning of the
victims. (Docket # 14-6 at 20.) The appellate opinion
set forth the governing law, noting that, under Strickland, Petitioner needed to demonstrate (i) deficient
performance by the lawyer and (ii) prejudice resulting
from the lawyer’s conduct. (Docket # 14-6 at 20.) The
court also noted the deference a reviewing court
affords to a trial lawyer’s tactical decisions. (Id.)
The appellate court concluded that the lawyer’s
performance was not deficient because “four of the five
victims told the jury they were suing [Petitioner] for
money, and defense counsel argued they had a motivation to lie.” (Id. at 21.) Moreover, noting that conclusory
allegations are insufficient, the court concluded that
Petitioner “has not shown what other information
defense counsel would have found or elicited with
further investigation or cross-examination.” (Id. at 21.)
The court reasoned that because Petitioner “cannot
show what additional evidence could have been produced, [Petitioner] cannot show any likelihood of a more
favorable result if his counsel had acted differently.”
App.25a
(Id. at 21.) As such, the court held that Petitioner
failed both Strickland prongs. (Id.)
***
In the post-appeal habeas proceedings, the state
appellate court rejected Petitioner’s claims about the
alleged inadequacy of the lawyer’s pretrial investigation
as “procedurally barred as untimely.” The appellate
court concluded that Petitioner “knew no later than
the time of trial” which witnesses had been identified,
interviewed, or not approached by the lawyer. However,
Petitioner “did not raise the new claims of ineffective
assistance of counsel until more than three years after
he was sentenced.” (Docket # 14-14 at 4.) On that basis,
the court rejected the claim on untimeliness grounds.
Further, on the merits, the court concluded that
the “new evidence” was “merely cumulative, corroborative, [or] collateral” to the evidence presented at trial.
(Id. at 8.) Additionally, the proffered testimony from
third parties regarding the victims was likely “inadmissible hearsay” and “at most impeaching[,] and thus
insufficient to warrant habeas corpus relief” under
state law. (Id. at 6.) Overall, “[g]iven the strong evidence [presented] against” Petitioner at trial, the court
concluded that it was “not reasonably probable the
jury would have returned verdicts more favorable” to
Petitioner had the lawyer presented the proffered testimony to the jury. (Id. at 8.)
Relevant Law
To establish ineffective assistance in violation
of the federal constitution, “a defendant must show
both deficient performance by counsel and prejudice.”
Knowles v. Mirzayance, 556 U.S. 111, 122 (2009);
App.26a
Strickland v. Washington, 466 U.S. 668 (1984). “Failure
to satisfy either prong of the Strickland test obviates
the need to consider the other.” Rios v. Rocha, 299
F.3d 796, 805 (9th Cir. 2002).
Deficient performance is defined as representation
that falls below an objective standard of reasonableness.
Strickland, 466 U.S. at 688. A trial lawyer is “strongly
presumed to have rendered adequate assistance,” and
should not have a reviewing court “second-guess counsel’s assistance.” Cullen v. Pinholster, 563 U.S. 170,
189 (2011). Consequently, an attorney’s “tactical decisions at trial, such as refraining from cross-examining
a particular witness or from asking a particular line
of questions, are given great deference and must []
meet only objectively reasonable standards.” Dows v.
Wood, 211 F.3d 480, 487 (9th Cir. 2000). How “thorough
and vigorous” the attorney examines a witness is subject to this deference. Id.
A defense lawyer has a duty to conduct a reasonable investigation before trial. Atwood v. Ryan, 870
F.3d 1033, 1057 (9th Cir. 2017). However, when a lawyer has reason to be believe that “pursuing certain
investigations would be fruitless or even harmful,” the
attorney’s “failure to pursue those investigations may
not later be challenged as unreasonable”; a trial decision made after adequate investigation is “virtually
unchallengeable.” Strickland, 466 U.S. at 691. The failure to interview or elicit trial testimony from a key
witness may lead to a finding of deficient performance.
Howard v. Clark, 608 F.3d 563, 571 (9th Cir. 2010). It
must be apparent, though, that the person involved
was a “crucial witness” for the defense or “star witness
for the prosecution” that a “reasonable attorney would
[] have attempted to interview.” Id. at 570.
App.27a
As to prejudice, a challenger must demonstrate
that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Padilla v. Kentucky,
599 U.S. 356, 366 (2010); Strickland 466 U.S. at 694.
Speculation that a defendant might have suffered prejudice “is plainly insufficient to establish prejudice.”
Gonzalez v. Knowles, 515 F.3d 1006, 1016 (9th Cir.
2008). A cursory, vague, or unsupported claim of ineffective assistance is insufficient to establish a Strickland
violation. James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994);
Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011)
(same). The failure of an attorney to introduce cumulative impeachment evidence does not establish prejudice. Carriger v. Lewis, 917 F.2d 329, 332-34 (9th Cir.
1992); Smit v. Lizarraga, No. ED CV 16-233 RSWL
(AGR), 2018 WL 7506176 at *14 (C.D. Cal. 2018)
(“Any additional cross examination would have been
cumulative and would not materially change the
nature of the impeachment already before the jury.”)
***
“Surmounting Strickland’s high bar is never an
easy task.” Padilla, 559 U.S. at 371. Establishing that
a state court’s application of Strickland was unreasonable under AEDPA “is all the more difficult.” Richter,
562 U.S. at 105. The standards created by Strickland
and Section 2254(d) are both “highly deferential”; when
the two apply in tandem, “review is doubly so.” Id.
(cleaned up); Demetrulias v. Davis, 14 F.4th 898, 912
(9th Cir. 2021) (same).
Analysis
On doubly-deferential review, Petitioner is not
entitled to habeas relief on his claims for ineffective
App.28a
assistance of counsel. The appellate court analyzed
Petitioner’s claims by direct reference to the deficient
performance / prejudice standard under Strickland
and state law analogues. The state court then reviewed
the substance of the proffered claims in light of the
testimony and argument presented at trial.
The appellate court did not unreasonably conclude
that Petitioner failed to show that his trial lawyer was
ineffective. As to Petitioner’s claims regarding the
financial motives of the victims and the legitimacy of
their assertions about their age, the state court noted
on direct appeal that the trial lawyer questioned these
witnesses on both topics. He also expressly stated in
closing arguments that the victims had financial incentive to lie. The state court was entitled not to critique
the specifics of the lawyer’s cross-examination further. Dows, 211 F.3d at 487. Moreover, under AEDPA,
this Court must defer to the state court’s reasonable
conclusion that Petitioner was not prejudiced by the
lawyer’s questioning. Strickland, 466 U.S. at 688;
Pinholster, 563 U.S. at 189; Padilla, 599 U.S. at 366;
Gonzalez, 515 F.3d at 1017.
***
The remainder of Petitioner’s ineffective assistance
claim is barred from federal review. The state appellate
court expressly distinguished between the claims
asserted on direct appeal (questioning of victims at
trial) and those on habeas (adequacy of pretrial investigation and preparation).2 The claims regarding the
2 In his reply, Petitioner acknowledges that he failed to properly
exhaust his victim-cross-examination claims on direct appeal,
but attempted to preserve them on habeas review. (Docket # 161 at 18-19.) He then asserts that the claims are not subject to any
App.29a
alleged failure to interview witnesses were rejected as
untimely, and not for the reasons emphasized in Petitioner’s submissions. (Docket # 16-1 at 19-20.)
Under AEDPA, federal courts cannot consider a
claim if a state court denies relief due to “a procedural
barrier to adjudication of the claim on the merits.”
Walker v. Martin, 562 U.S. 307, 315 (2011). California’s
timeliness bar is an adequate and independent basis
to preclude federal habeas review. Walker, 562 U.S. at
317. Petitioner offers no basis to disregard the timeliness bar. Coleman v. Thompson, 501 U.S. 722, 750
(1991); Ayala v. Chappell, 829 F.3d 1081, 1095 (9th Cir.
2016).
In any event, after invoking the timeliness bar,
the state court soundly rejected Petitioner’s ineffective
assistance claim on the merits. Again applying the
familiar Strickland factors, the state court determined
that the additional evidence that Petitioner now contends his lawyer should have presented was cumulative, impeachment, or just not crucial to the defense.
That’s not an unreasonable application of federal law.
Carriger, 917 F.2d at 332-34; Smit, 2018 WL 7506176
at *14. Notably, none of the individuals identified in
Petitioner’s submissions remotely approaches the
level of “crucial” or “star witness” for either party
procedural defect. No matter. The appellate court’s decision on
direct appeal adequately examined those claims. Whether
reviewed under AEDPA deference or de novo in this Court, there
is not a basis to conclude that the lawyer was ineffective as
alleged. Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004) (“De
novo review, rather than AEDPA’s deferential standard, is
applicable to a claim that the state court did not reach on the
merits.”); Fox v. Johnson, 832 F.3d 978, 985 (9th Cir. 2016)
(same).
App.30a
regarding the molestation at issue. Howard, 608 F.3d
at 570. The state court’s analysis of the defense lawyer’s investigation and trial tactics survives AEDPA
review. Early v. Packer, 537 U.S. 3, 8 (2002) (state
court need not cite controlling Supreme Court cases “so
long as neither the reasoning nor the result of the
state court decision contradicts them”); Andrews v.
Davis, 944 F.3d 1092, 1116-17 (9th Cir. 2019).
***
A state court “need not fear reaching the merits
of a federal claim in an alternative holding” beyond its
analysis of procedural problems with the action.
Harris v. Reed, 489 U.S. 255, 263 n.10 (1989) (emphasis
in original). Whether the state court denied habeas
relief for substantive reasons, procedural defects, or
both, this Court’s limited review cannot lead to federal
relief. Petitioner has not surmounted the “formidable
barrier” to warrant a habeas grant. Burt, 571 U.S. at
19.
Insufficient Notice (Ground Three)
Petitioner contends that the prosecution changed
its theory of criminal liability as to two of the charges
during closing arguments, in violation of his right to
due process. (Docket # 4 at 74.)
Relevant Facts and Decision Below
At the preliminary hearing, a detective testified
about Petitioner’s sexual assault on victim J.W. (the
basis for Counts 4 and 5). The testimony was “brief,
lacking detail.” (Docket # 14-6 at 22.) However, the
detective recounted the boy’s statements that Petitioner
App.31a
molested him numerous times during the time period
charged in the criminal complaint.3 (Id. at 23.)
During the trial, J.W. testified in considerably
more detail about the molestation that occurred in
Petitioner’s vehicle. (Docket # 14-1 at 254 et seq.) In
closing argument, the prosecution argued that the evidence of Petitioner’s sexual assaults in the vehicle
constituted the criminal lewd acts charged in Counts
4 and 5. (Id. at 1290.) The trial judge overruled the
defense’s objection that the prosecution improperly
amended the charges against Petitioner. (Id. at 130509.)
***
On direct appeal, the state appellate court affirmed
the conviction. Relying on state law decisions, the
court observed that a sex crime prosecution involving
children may be based on “generic” testimony from the
victims. (Docket # 14-6 at 23.) The court concluded that
due process is not violated when a criminal defendant
receives “notice of the nature of the charges against
him” and “sufficient notice of the time period in which
the act or acts occurred.”
The appellate court determined that the detective’s
pretrial testimony and the charging document provided
that notice. “Once J.W. described that event, [Petitioner] had notice of the specific circumstances” of the
alleged offense. The court buttressed that conclusion
3 The preliminary hearing transcript lodged with the Court at
Docket # 14-2 is incomplete and does not appear to contain this
testimony. However, the parties do not appear to challenge the
factual recitation of the state appellate court that contrasted the
preliminary hearing testimony with the trial proceedings.
(Docket # 4 at 81.)
App.32a
by observing that Petitioner did not object to either
the victim’s trial testimony or the nature of the charge
until closing argument, suggesting that he “had notice
of the specific circumstances” underlying the charges.
Beyond the pretrial disclosures and the testimony
admitted at trial, the court concluded that Petitioner
had no further right to “specific notice of the time,
place, and circumstances of the offenses” under state
law. (Id.)
Relevant Law
The Constitution guarantees that a defendant be
“informed of the nature and cause” of criminal charges
to be presented at trial. U.S. Const., Amend. VI. It is
clearly established federal law that a criminal defendant have “reasonable notice of a charge against him,
and an opportunity to be heard in his defense.” In re
Oliver, 333 U.S. 257, 273 (1948); Cole v. Arkansas,
333 U.S. 196, 201(1948); Gautt v. Lewis, 489 F.3d 993,
1002 (9th Cir. 2007) (criminal defendant has fundamental right to notice of charges “to permit adequate
preparation of a defense”).
Due process requires that the formal charge set
forth the elements of the offense “with sufficient clarity
to apprise a defendant of what he must be prepared to
defend against.” Givens v. Housewright, 786 F.2d
1378, 1380 (9th Cir. 1986) (information inadequate to
inform defendant of special elements of murder charge).
In addition to the charging document, a defendant
may be adequately informed of the nature of the
charges by “a complaint, an arrest warrant, [] a bill of
particulars[, or] during the course of a preliminary
hearing.” Sheppard v. Rees, 909 F.2d 1234, 1236 n.2
(9th Cir. 1989). A defendant may also receive “consti-
App.33a
tutionally adequate notice” of a theory regarding the
commission of the charged crime “from the testimony”
of witnesses during the trial. Morrison v. Estelle, 981
F.2d 425, 428 (9th Cir. 1992); Murtishaw v. Woodford,
255 F.3d. 926, 954 (9th Cir. 2001) (defendant’s “actions
at trial” in responding to prosecution evidence “suggest
that he actually had notice of the felony murder
theory”). There is, however, no clearly established
statement of law from the Supreme Court that a
criminal defendant “can [] be deprived of adequate
notice by a prosecutorial decision to focus on another
theory of liability at trial.” Lopez v. Smith, 574 U.S. 1,
4 (2014).
Analysis
On deferential AEDPA review, the Court finds no
basis for habeas relief. The state appellate court
considered Petitioner’s claim under the correct constitutional standard, citing state court analogues to federal law. The state court expressly concluded that
Petitioner received adequate notice of the criminal
charges from the complaint, the preliminary hearing
testimony, and the trial testimony. That was not an
unreasonable application of federal constitutional
law. Cole, 333 U.S. at 201; Gautt, 489 F.3d at 1002;
Morrison, 981 F.2d at 428; Murtishaw, 255 F.3d. at
954.
***
Petitioner’s remaining arguments sound in state
law. He contends that he was denied the “right” under
Penal Code section 1009 to have the charges “amended” in a manner consistent with “the evidence taken
App.34a
at the preliminary hearing.”4 (Docket # 4 at 81-82.)
However, application of that statute during trial is an
operation of state law that cannot give rise to a federal
constitutional violation. Estelle v. McGuire, 502 U.S. 62,
67-68 (1991). Moreover, Petitioner fails to convincingly
demonstrate that he was “arbitrarily” deprived of a
“liberty interest” guaranteed under state law. Hicks v.
Oklahoma, 447 U.S. 343, 346 (1980); Piper v. Uribe,
584 F. App’x 722 (9th Cir. 2014) (federal review of
Hicks deprivation claim involves deferential AEDPA
consideration of reasonableness of “arbitrary” deprivation). To the contrary, both the trial and appellate
courts gave fair, non-arbitrary consideration to Petitioner’s complaint regarding the notice issue. Petitioner identifies no constitutional basis to challenge
those rulings.
Conclusion
IT IS THEREFORE RECOMMENDED that the
District Judge issue an order: (1) accepting the findings and recommendations in this Report; (2) directing
that judgment be entered denying the Petition; and (3)
dismissing the action with prejudice.
/s/ Michael R. Wilner
U.S. Magistrate Judge
Dated: July 13, 2023
4 The Court notes, but declines to rule on, the Attorney General’s
contention that Section 1009 is irrelevant to the case because the
prosecutor did not file an amended charging document during
trial. (Docket # 13 at 34 n.5.)
App.35a
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS, SUPREME
COURT OF CALIFORNIA,
2021 CAL. LEXIS 3895
(JUNE 9, 2021)
SUPREME COURT OF CALIFORNIA
________________________
In re SHAWN EDWARD SHAFFER
on Habeas Corpus
________________________
No. S267603
[*1] The request for judicial notice is granted.
The petition for writ of habeas corpus is denied.
App.36a
ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS, COURT OF APPEAL OF
THE STATE OF CALIFORNIA, FOURTH
APPELLATE DISTRICT, DIVISION ONE
(JANUARY 26, 2021)
COURT OF APPEAL, FOURTH APPELLATE
DISTRICT DIVISION ONE STATE OF
CALIFORNIA
________________________
In re SHAWN EDWARD SHAFFER
on Habeas Corpus
________________________
No. D078470
(Riverside County Super. Ct. No. RIF1501703)
Before: IRION, Acting P.J.
ORDER DENYING PETITION
FOR WRIT OF HABEAS CORPUS
THE COURT:
The petition for writ of habeas corpus and request
for judicial notice have been read and considered
by Presiding Justice McConnell and Associate Justices
Haller and Irion. The request for judicial notice is
granted and judicial notice is taken of the record, briefs,
and opinion filed in appeal No. D075130. (Evid. Code,
§§ 452, subd. (d), 459, subd. (a); In re Clark (1993) 5
Cal.4th 750, 798, fn. 35.)
App.37a
Shawn Edward Shaffer was sentenced to prison
on May 4, 2017, for six years four months plus 75
years to life after a jury found him guilty of 13 sex
crimes against five minors. On appeal, Shaffer claimed:
(1) the evidence was insufficient to support some of
the convictions, including the evidence that one of the
victims (S.F.) was younger than 14 years when Shaffer
committed lewd and lascivious acts against the victim;
(2) trial counsel was ineffective for failing adequately
to investigate and to expose on cross-examination the
financial motivation of the victims, who were suing
Shaffer for damages, falsely to accuse him of sex
crimes; and (3) he was given insufficient notice of the
incident that underlay the charges that he committed
lewd and lascivious acts against one of the victims
(J.W.) by use of force, violence, duress, menace, or fear.
This court rejected those claims of error and affirmed
the judgment of conviction. (People v. Shaffer (July 23,
2019, D075130) [nonpub. opn.].)
Shaffer collaterally attacked the judgment in the
superior court by filing a petition for writ of habeas
corpus on June 9, 2020. He alleged trial counsel provided ineffective assistance by failing adequately to
investigate the victims’ accusations, failing to present
all available defenses to their accusations, and failing
adequately to expose their financial motivation to
make false accusations. Shaffer further alleged he had
discovered “new evidence” that undermined the integrity of the jury’s verdicts. He also alleged, as he had
on appeal, that he had been given insufficient notice
of two of the charges against him. The superior court
summarily denied the petition on October 14, 2020.
By the present petition, Shaffer renews the
claims the superior court rejected. He complains he
App.38a
was deprived of his constitutional right to the effective
assistance of counsel at trial (U.S. Const., 6th & 14th
Amends.; Cal. Const., art. I, § 15), because counsel
failed to interview all the potential witnesses Shaffer
had identified, failed thoroughly to interview those
counsel did contact, failed adequately to cross-examine
the victims about their financial motivations to make
false accusations of molestation against Shaffer, and
failed adequately to cross-examine S.F. about his age
when Shaffer molested him. Shaffer next contends that
during a post-trial investigation he discovered “new
evidence” that undermines the jury’s verdicts (Pen.
Code, § 1473, subd. (b)(3)), including a statement from
victim S.L.’s high school football coach that S.L. never
displayed signs of sexual abuse, statements from
S.L.’s high school friend that S.L. regularly consumed
alcohol and drugs and never mentioned or displayed
signs of sexual abuse, and a statement from a man
who worked with the father of two of the victims (M.S.
and S.S.) for Shaffer’s business that Shaffer did not
arrange the father’s work schedule so that he (Shaffer)
would have easy access to M.S. and S.S. on weekends.
Shaffer also repeats the argument raised and rejected
on appeal that the prosecutor deprived him of liberty
without due process of law (U.S. Const., § 14th Amend.,
§ 1) by urging the jury to convict him of the lewd and
lascivious act charges involving J.W. based on an incident different from that presented at the preliminary
examination. Shaffer asks this court to issue an order
to show cause, hold an evidentiary hearing, set aside
the jury’s verdicts, and order his release from prison.
Shaffer is not entitled to habeas corpus relief. His
claims that trial counsel was ineffective on crossexamination for not adequately exposing the victims’
App.39a
financial motivation to fabricate their accusations of
molestation and that the prosecutor provided inadequate notice of the factual basis of the lewd and
lascivious act charges involving J.W. are procedurally
barred as repetitive. “[L]egal claims that have previously been raised and rejected on direct appeal ordinarily
cannot be reraised in a collateral attack by filing a
petition for writ of habeas corpus.” (In re Reno (2012)
55 Cal.4th 428, 476.) The claim counsel was ineffective for not adequately cross-examining S.F. on his
age when he was molested by Shaffer is procedurally
barred as successive. On appeal Shaffer challenged
the sufficiency of the evidence to support S.F.’s age at
the time of the molestation and criticized counsel’s
cross-examination on the victims’ financial motivation.
Based on the record on appeal, Shaffer easily could
have asserted a related claim that counsel’s crossexamination on the issue of S.F.’s age was inadequate.
“[A] litigant is not entitled to raise an issue on habeas
corpus after having failed to raise the same issue on
direct appeal.” (Id. at p. 490.) Shaffer has not identified
any jurisdictional error, fundamental constitutional
error striking at the heart of the trial process, or
change in law that would permit him to avoid the
procedural bars to these claims. (Id. at pp. 478, 490491.)
The remaining claims of ineffective assistance of
counsel and of new evidence that undermines the jury’s
verdicts are procedurally barred as untimely. A prisoner
collaterally attacking a presumptively valid final
judgment of conviction must do so “without substantial delay,” which “‘is measured from the time the petitioner or his or her counsel knew, or reasonably
should have known, of the information offered in sup-
App.40a
port of the claim and the legal basis for the claim.’”
(Robinson v. Lewis (2020) 9 Cal.5th 883, 897.) Shaffer
knew no later than the time of trial which potential
witnesses he identified had and had not been contacted by counsel, including those whom Shaffer considered
“critically important” and “vital” before trial and who
provided “a trove of information which categorically
dismantled the claims of the accusers” in the post-trial
investigation. In a declaration submitted in support of
the habeas corpus petition filed in this court, Shaffer
describes the dissatisfaction with counsel’s performance
he felt before and during trial. Shaffer, however, did
not raise the new claims of ineffective assistance of
counsel or new evidence until more than three years
after he was sentenced, when he filed his petition for
writ of habeas corpus in the superior court. Since then,
another seven months have passed. Shaffer offers no
explanation for this delay, even though “‘[it] has long
been required that a petitioner explain and justify any
significant delay in seeking habeas corpus relief.’” (In
re Reno, supra, 55 Cal.4th at p. 459.) On this record,
“we find lack of diligence in pursuing relief once the
legal issue was discovered.” (People v. Miller (1992) 6
Cal.App.4th 873, 883.)1
1 The timeliness rules for collateral attacks on convictions are
not mere technicalities and serve important purposes. “By requiring that such challenges be made reasonably promptly, we
vindicate society’s interest in the finality of its criminal judgments, as well as the public’s interest ‘in the orderly and reasonably prompt implementation of its laws.’ [Citation.] Such timeliness rules serve other salutary interests as well. Requiring a
prisoner to file his or her challenge promptly helps ensure that
possibly vital evidence will not be lost through the passage of
time or the fading of memories. In addition, we cannot overestimate
the value of the psychological repose that may come for the
App.41a
Even if the claim of new evidence and the related
claim of ineffective assistance of counsel were not
procedurally barred, the claims would be denied for
failure to state a prima facie case for relief. A writ of
habeas corpus may issue if “[n]ew evidence exists that is
credible, material, presented without substantial delay,
and of such decisive force and value that it would have
more likely than not changed the outcome at trial.”
(Pen. Code, § 1473, subd. (b)(3)(A).) “For purposes of
this section, ‘new evidence’ means evidence that has
been discovered after trial, that could not have been
discovered prior to trial by the exercise of due diligence, and is admissible and not merely cumulative,
corroborative, collateral, or impeaching.” (Id., § 1473,
subd. (b)(3)(B).) The evidence on which Shaffer relies
does not satisfy these statutory criteria.
As discussed above regarding the untimeliness of
the habeas corpus petition, the information Shaffer
now offers as “new evidence” could have been obtained
“prior to trial by the exercise of due diligence” had counsel interviewed all the witnesses Shaffer had identified.
(Pen. Code, § 1473, subd. (b)(3)(B).) By waiting more
than three years after sentencing to present the evi-
victim, or the surviving family and friends of the victim, generated
by the knowledge the ordeal is finally over.” (In re Sanders (1999)
21 Cal.4th 697, 703.) These concerns are present here. Shaffer
was convicted in 2017 of sex crimes he committed against five
minors between 2001 and 2010. Society has a strong interest in
promptly punishing him for these crimes and incapacitating him
from committing others. The memories of victims and witnesses
have undoubtedly faded since trial, and the victims and their
families are entitled to whatever peace they may derive from
knowing the criminal case is over.
App.42a
dence, Shaffer did not proceed “without substantial
delay.” (Id., § 1473, subd. (b)(3)(A).)
The evidence from S.L.’s high school football
coach that S.L. was “troubled” and had “complications”
with his family but exhibited no indications of “sexual,
physical, or verbal abuse” comes in the form of a declaration of an investigator who interviewed the coach
and is therefore inadmissible hearsay. (Evid. Code,
§ 1200.) Even if admissible, such evidence at most
impeaches S.L.’s trial testimony that Shaffer orally
copulated, sodomized, and otherwise sexually molested
him when he was a minor, and so does not qualify as
“new evidence” warranting habeas corpus relief. (Pen.
Code, § 1473, subd. (b)(3)(B).)
Similarly, the statements of S.L.’s high school
friend (C.C.) that he “never witnessed any inappropriate
behavior at Mr. Shaffer’s house,” and that S.L. was a
“troublemaker at school and caused constant disruptions,” “consume[d] alcohol and drugs on a regular
basis,” but “never express[ed] concerns over Mr.
Shaffer’s behavior” or “exhibited the characteristics of
an abused person,” are at most impeaching and thus
insufficient to warrant habeas corpus relief. (Pen. Code,
§ 1473, subd. (b)(3)(B).) Furthermore, two other high
school friends of S.L. (C.M. and D.W.) testified at trial
that at Shaffer’s house and on camping trips Shaffer
never acted inappropriately toward them or S.L. and
that S.L. never raised any concerns to them about how
Shaffer treated him. Since C.C.’s testimony would have
been merely cumulative and corroborative of C.M.’s
and D.W.’s trial testimony, it is not “new evidence”
within the meaning of Penal Code section 1473. (Ibid.)
The declaration from the coworker of the father
of two of the victims that Shaffer did not schedule the
App.43a
father to work weekends so that Shaffer would have
access to the victims is not “new evidence” either. The
victims’ father’s work schedule was not an issue raised
at Shaffer’s criminal trial. The work schedule was
first raised in the related civil action, when M.S. testified at his deposition that Shaffer arranged the
schedule so that M.S.’s father worked on weekends
and M.S. and his brother S.S. could go to Shaffer’s
house or on camping trips with Shaffer without their
parents. The father’s work schedule would have been
a collateral issue in the criminal action, and the father’s
coworker’s testimony on that issue at most would have
impeached M.S.’s credibility. The testimony therefore
does not warrant habeas corpus relief. (Pen. Code,
§ 1473, subd. (b)(3)(B).)
In sum, none of the evidence now offered by
Shaffer “would have more likely than not changed the
outcome at trial” had it been presented. Therefore, this
evidence is insufficient to overturn the judgment of
conviction on the ground of “new evidence.” (Pen.
Code, § 1473, subd. (b)(3)(A).
Finally, the evidence now offered by Shaffer also
is insufficient to overturn the judgment on the ground
trial counsel was ineffective for failing to discover and
present the evidence at trial. To prevail on this ground,
Shaffer must show there is a reasonable probability
that had the evidence been presented at trial the
outcome would have been different. (Strickland v.
Washington (1984) 466 U.S. 668, 694; People v.
Williams (1988) 44 Cal.3d 883, 937.) “A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” (Strickland, at p. 694.)
Given the strong evidence against Shaffer presented
at trial, as discussed in the opinion on appeal, and the
App.44a
merely cumulative, corroborative, collateral, or impeaching nature of the additional evidence he now offers, as
discussed above, it is not reasonably probable the jury
would have returned verdicts more favorable to Shaffer
had the additional evidence been presented at trial.
(See In re Reno, supra, 55 Cal.4th at p. 470 [counsel’s
failure to present cumulative evidence was not prejudicial]; People v. Green (1982) 130 Cal.App.3d 1, 11
[generally “‘evidence which merely impeaches a witness
is not significant enough to make a different result
probable’”].)
The petition is denied.
/s/ Irion
Acting P. J.
Copies to: All parties
App.45a
ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS, SUPERIOR COURT OF
THE STATE OF CALIFORNIA,
COUNTY OF RIVERSIDE
(OCTOBER 14, 2020)
SUPERIOR COURT OF THE STATE OF
CALIFORNIA FOR THE COUNTY OF RIVERSIDE
________________________
In re SHAWN EDWARD SHAFFER
on Habeas Corpus
________________________
Habeas Case Number: RIC2001531
Criminal Case Number: RIF1501703
Before: Kira L. KLATCHKO, Judge,
Riverside County Superior Court.
Petitioner Shaffer was convicted of multiple sex
offenses against five young boys. After reviewing and
considering the Petition for Writ of Habeas Corpus
filed by Petitioner on June 9, 2020, the Court requested
an informal response. Respondent filed an informal
response, Petitioner did not file a timely reply. Based
on its review of the petition and informal response, the
Court finds Petitioner has failed to set forth a prima
facie case and denies habeas relief for the reasons
more particularly set forth below.
Petitioner Shaffer seeks habeas relief on the basis
that his trial counsel was ineffective. Specifically, he
asserts trial counsel failed to investigate all allegations, failed to adequately examine witnesses, failed to
App.46a
present defenses all available defenses, and “failed to
examine the motivations of the complainants.” Shaffer
raised these same issues on appeal from the verdict in
appellate case D075130M; the Court of appeal found
“neither deficient performance nor prejudice.” (People v.
Shaffer, D075130 (unpub. Aug. 14, 2019) p. 20 [“Shaffer
contends his counsel was constitutionally ineffective
for failing to conduct adequate cross-examination of,
investigate, or emphasize the purported financial
motivation of the four victims who have filed a civil
lawsuit against Shaffer.”].) Habeas is not a tool for relitigating issues that were, or could have been, raised
on appeal. (In re Waltreus (1965) 62 Cal.2d 218, 225;
In re Dixon (1953) 41 Cal.2d 756, 759.) Shaffer has not
sought to address these arguments in light of new evidence unavailable at the time of the appeal, and the
Court has no basis to reconsider the decision rendered
by the appellate court with respect to these issues.
The same is true of Shaffer’s contention that he did
not have sufficient notice of the charges against him.
{Memorandum p. 78.} As summarized by the Court of
Appeal: “On appeal, [Shaffer] claims insufficient evidence of five convictions; ineffective assistance of
counsel in the manner of cross-examining the wit
nesses; and insufficient notice of two counts.” (People
v. Shaffer, D075130 (unpub. Aug. 14, 2019) pp. 1-2,
22-23.)
Shaffer also asserts that “new evidence was discovered which undermines the integrity of the jury’s
verdict.” {Memorandum p. 73.} Penal Code section 1473
provides in part:
(b) A writ of habeas corpus may be prosecuted
for, but not limited to, the following reasons:
. . . [¶] (3)(A) New evidence exists that is
App.47a
credible, material, presented without substantial delay, and of such decisive force and
value that it would have more likely than not
changed the outcome at trial. [¶] (B) For purposes of this section, “new evidence” means
evidence that has been discovered after trial,
that could not have been discovered prior to
trial by the exercise of due diligence, and is
admissible and not merely cumulative, corroborative, collateral, or impeaching. [As amended
by S.B.1134 § 1 (eff. Jan. 1, 2017).]
Shaffer asserts that but for the ineffective assistance of counsel, this “new” evidence would have been
discovered. Under both the Sixth Amendment to the
United States Constitution and Article I, Section 15
of the California Constitution, a criminal defendant
has the right to the effective assistance of counsel.
(Strickland v. Washington (1984) 466 U.S. 668, 686
(“Strickland”); People v. Ledesma (1987) 43 Cal.3d
171, 215-218 (“Ledesma”); In re Cordero (1988) 46
Cal.3d 161, 179-180 (“Cordero”). This right entitles a
criminal defendant to the reasonably competent assistance of an attorney acting as a diligent and conscientious advocate. (Ledesma, supra, 43 Cal.3d at p.215;
Cordero, supra, 46 Cal.3d at p. 180.)
To prevail on a claim of ineffective assistance of
counsel, a petitioner must show that prejudice resulted
from attorney representation that “fell below an objective standard of reasonableness” measured against
“prevailing professional norms.” (Strickland, supra,
466 U.S. at pp. 687-688, 694.) Prejudice generally requires an affirmative showing that, absent counsel’s
alleged errors, there is a reasonable probability of a
more favorable outcome. (Cordero, supra, 46 Cal.3d at
App.48a
p. 180; Ledesma, supra, 43 Cal.3d at 218.) A “reasonable probability” is not a showing that “counsel’s conduct
more likely than not altered the outcome in the case,” but
simply “a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at
pp. 693-694; Anderson, supra, 25 Cal.4th at p. 569;
Cordero, supra, 46 Cal.3d at p. 180.)
In assessing prejudice, the question is not whether
a court can be certain counsel’s performance had no
effect on the outcome, or whether it is possible a reasonable doubt might have been established if counsel
acted differently. (Harrington v. Richter (2011) 562 U.S.
86, 111.) Instead, the question is whether it is “reasonably likely” the result would have been different. (Ibid.)
“The likelihood of a different result must be substantial, not just conceivable.” (Id. at p. 512, citing Strickland, supra, 466 U.S. at p. 693.) “An error by counsel,
even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if
the error had no effect on the judgment.” (Strickland,
supra, 466 U.S. at p. 691.) Courts should “‘indulge a
strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.”‘
(In re Champion (2014) 58 Cal.4th 965, 1004, quoting
Strickland, supra, 466 U.S. at p. 689.)
Here, Shaffer has failed to show that it is “reasonably likely” that, but for counsel’s allegedly deficient
performance, a more favorable outcome would have
resulted. He has also failed to show that this allegedly
“new” evidence could easily have been discovered at or
prior to trial by the exercise of due diligence, and that
it “is admissible and not merely cumulative, corroborative, collateral, or impeaching.” (Pen. Code, § 1473(b).)
The Court finds that, even assuming his factual alle-
App.49a
gations are true, Shaffer has not stated a prima facie
case for relief. (See In re Clark (1993) 5 Cal.4th 750,
769, fn. 9; In re Lawler (1979) 23 Cal.3d 190, 194.)
Shaffer alleges the existence of “new” evidence
that could have been uncovered and used at trial but
for counsel’s ineffective representation, as follows:
(1) testimony of S.L.’s football coach at Santiago
High School, who “is experienced in detecting
the types of issues Mr. Shaffer’s accusers
allege . . . [and] did not observe the key
indicators of sexual, physical, or verbal abuse,
such as changes of appearance or behavior.”
{Memorandum p. 75}
(2) testimony of Charles Anthony Cools, Jr., who
was S.L.’s friend and “would spend time at
Mr. Shaffer’s house and never saw or heard
of anything inappropriate. . . . [¶ ] [and] S.L.
never mentioned issues with Mr. Shaffer and
did not exhibit any indications of abuse.”
{Memorandum p. 76.)
(3) evidence that Mr. S, father of two of the
minor victims M.S. and S.S. was not working
for UDC (Shaffer’s family’s company) on the
weekends when his children were molested
by Shaffer, evidencing that Shaffer did not
intentionally schedule Mr. S to work in order
to gain access to the children. {Memorandum
pp. 77-78.}
To understand this allegedly “new” evidence,
some context is required. S.L. was one of Shaffer’s minor
victims. Based on his conduct towards S.L., Shaffer
was convicted of two counts of committing sodomy
with a child under 16, oral copulation with a child
App.50a
under 16 by a person over 21, and two counts of committing a lewd act on a child under 14. (People v.
Shaffer, D075130 (unpub. Aug. 14, 2019) pp. 2-3.) S.L.
came to know Shaffer through his friendship with two
of Shaffer’s other minor victims, M.S. and S.S., whose
father Mr. S worked for the company run by Shaffer’s
family. At the time they started spending time with
Shaffer, M.S. was 13, SS was 10, and S.L. was 11 years
old. (Id. at p. 4) Years after the abuse occurred, these
individuals came forward, they also participated in a
civil lawsuit against Shaffer, a fact that was disclosed
at trial. (Id. at pp. 9-13.) Based on his conduct towards
M.S., Shaffer was convicted of committing a lewd act
on a child 14 or 15 years old and more than 10 years
younger than defendant. Based on his conduct towards
S.S., Shaffer was convicted of committing a lewd act
on a child under 14. (Id. at p. 2.)
In this context the “new” evidence cited by Shaffer
is, on its face, merely cumulative, corroborative, collateral, or impeaching and is not of such force or value
that it would have changed the outcome of the trial or
even raised a doubt about Shaffer’s guilt. Based on
the evidence presented at trial, as summarized by
the court of appeal in its opinion, testimony by one of
S.L.’s friends and his football coach about how they
viewed his behavior and state of mind would be, if
anything at all, impeaching. It would certainly not
qualify as any type of expert opinion, as Shaffer infers
by reference to coach Steinberg has being “experienced”
in detecting abuse. The same is true of the evidence re
Mr. S’s work schedule. Whether Shaffer engineered
Mr. S’s work schedule so that he could have an excuse
to spend more time alone with Mr. S’s children or not,
the evidence before the jury was that Shaffer spent a
App.51a
significant amount of time alone with M.S. and S.S.,
certainly outside of the hours when Mr. S is alleged to
have been at work. Many of the visits were overnight
visits and occurred “almost every weekend for about
four years.” (People v. Shaffer, D075130 (unpub. Aug.
14, 2019) pp. 9-11.) Shaffer also spent time with M.S.
and S.S. while their parents were present, as Shaffer
was friends with Mr. S, and close friends with Mr. S’s
wife. (Id. at p.3-4.) Shaffer has failed to establish a
prima facie case for habeas relief based on new evidence and has failed to establish a prima facie case for
habeas relief based on constitutionally ineffective
assistance of counsel.
The Petition is denied.
/s/ Kira L. Klatchko
Judge
Riverside County Superior Court
Dated: 10/14/20
Judge Kira L. Klatchko Riverside
App.52a
ORDER DENYING PETITION FOR REVIEW,
SUPREME COURT OF CALIFORNIA,
2019 CAL. LEXIS 7678
(OCTOBER 9, 2019)
IN THE SUPREME COURT OF CALIFORNIA
En Banc
________________________
THE PEOPLE,
Plaintiff and
Respondent,
v.
SHAWN EDWARD SHAFFER,
Defendant and
Appellant.
________________________
Case No. S257772
Court of Appeal, Fourth Appellate District,
Division One - No. D075130
Before: CANTIL-SAKAUYE, Chief Justice.
The petition for review is denied.
/s/ Cantil-Sakauye
Chief Justice
App.53a
ORDER MODIFYING OPINION AND DENYING
REHEARING, COURT OF APPEAL OF THE
STATE OF CALIFORNIA, FOURTH
APPELLATE DISTRICT, DIVISION ONE,
2019 CAL. APP. UNPUB. LEXIS 5439
(AUGUST 14, 2019)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
COURT OF APPEAL, FOURTH APPELLATE
DISTRICT DIVISION ONE
STATE OF CALIFORNIA
________________________
THE PEOPLE,
Plaintiff and
Respondent,
v.
SHAWN EDWARD SHAFFER,
Defendant and
Appellant.
________________________
Case No. D075130
(Super. Ct. No. RIF1501703)
NO CHANGE IN JUDGMENT
Before: MCCONNELL, P.J.,
App.54a
THE COURT:
1. On page 17, delete the second sentence in the
first full paragraph and replace it with the following:
“We note, however, this testimony by S.F. was
in response to a question about the details of
the second touching.”
2. On page 17, delete the second full paragraph.
The petition for rehearing is denied.
There is no change in the judgment.
/s/ McConnell
Presiding Judge
Copies to: All parties
App.55a
OPINION, COURT OF APPEAL OF THE STATE
OF CALIFORNIA, FOURTH APPELLATE
DISTRICT, DIVISION ONE,
2019 CAL.APP. UNPUB. LEXIS 4863
(JULY 23, 2019)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
COURT OF APPEAL, FOURTH APPELLATE
DISTRICT DIVISION ONE
STATE OF CALIFORNIA
________________________
THE PEOPLE,
Plaintiff and
Respondent,
v.
SHAWN EDWARD SHAFFER,
Defendant and
Appellant.
________________________
Case No. D075130
(Super. Ct. No. RIF1501703)
Appeal from a Judgment of the Superior Court of
Riverside County, Mac R. Fisher, Judge.
Before: BENKE, J., HALLER, J.,
McCONNELL, P.J.,
App.56a
Defendant and appellant Shawn Edward Shaffer
was convicted of 13 sex offenses against five young
boys. On appeal, he claims insufficient evidence of five
convictions; ineffective assistance of counsel in the
manner of cross-examining the witnesses; and insufficient notice of two counts. We reject his claims for
the reasons stated below.
BACKGROUND
Shaffer was convicted of the following crimes,
listed by victim:
S.F.: two counts of committing a lewd act on a
child under 14 (Pen. Code, § 288, subd. (a)),1 counts 1
and 2;
J.W.: oral copulation of a minor (§ 288a, subd.
(b)(l)),2 a lesser included offense of count 3 (oral
copulation of a person under the age of 14 and more
than 10 years younger than defendant (§ 288a, subd.
(c)(l)); two counts of committing a lewd act on a child
under 14 with force (§ 288, subd. (b)(l)), counts 4 and
5; committing a lewd act on a child 14 or 15 years old
and more than 10 years younger than defendant (§ 288,
subd. (c)(l)), count 6;
M.S.: committing a lewd act on a child 14 or 15
years old and more than 10 years younger than
defendant (§ 288, subd. (c)(l)), count 7;
1 Further statutory references are to the Penal Code unless
otherwise specified.
2 Section 288a was renumbered section 287 as amended by Stats.
2018, ch. 423 (Sen. Bill No. 1494), § 49, effective January l, 2019.
Count 3 refers to section 288a in effect between June l, 2004 and
September l, 2006, as alleged in the Information.
App.57a
S.S.: committing a lewd act on a child under 14
(§ 288, subd. (a)), count 8;
S.L.: two counts of committing sodomy with a
child under 16 (§ 286, subd. (b)(2)), counts 9 and 10;
oral copulation with a child under 16 by a person over
21 (§ 288a, subd. (b)(2)),3 count 11; and two counts of
committing a lewd act on a child under 14 (§ 288,
subd. (a)), counts 12 and 13.
The jury also found that Shaffer committed offenses
against more than one victim within the meaning of
section 667.61, subdivision (e)(4).
The trial court sentenced Shaffer to state prison
for a total determinate term of six years four months
followed by a consecutive indeterminate term of 75
years to life. Shaffer filed a timely notice of appeal.
FACTUAL BACKGROUND
Shaffer’s parents owned a company called UDC
Corporation (UDC). Shaffer worked there all his life.
Mr. S., the father of M.S. and S.S., was employed by
UDC and was friends with Shaffer. Mrs. S. came to
think of Shaffer as one of her best friends. In March
2004, when M.S. was 13 years old and his younger
brother S.S. was 10 years old, the S. family went on a
camping trip with Shaffer for the first time. Thereafter,
they frequently went camping together for about three
years from 2004 to 2008.
Shaffer, who lived alone, also invited the S. family
over to his house. Shaffer had a large yard with a pool,
hot tub and skate ramp. He also had a recreational
3 Count 11 refers to section 288a that was in effect between July
21, 2008 and July 20, 2010, as alleged in the Information.
App.58a
vehicle, pool table, ping-pong table, radio-controlled
cars, motorcycles, dirt bicycles, and other entertainment
items. Shaffer was very friendly with M.S. and S.S.
M.S. and S.S. went to Shaffer’s house every weekend
when they were not camping because there were so
many fun things to do there.
M.S. and S.S. invited along their neighborhood
friends, S.F., J.W., C.G., S.L. and others. Shaffer, who
was born in 1960, was about 44 years old when he
started hosting the boys overnight. M.S. was born in
1990. He was the oldest of the boys and was 13 years
old when he started spending a lot of time with Shaffer.
His brother S.S. was born in 1994. J.W. was born in
1991 and was the first to regularly go to Shaffer’s
house with M.S. and S.S., starting when he was 12
years old. S.F. and C.G. were both born in 1993 and were
a year older than S.S. S.F. began going to Shaffer’s
house when he was 13 years old. C.G. spent the night
at Shaffer’s house only once, when he was 12. S.L.,
who was born in 1994, was the youngest of the boys
and started going to Shaffer’s house on a regular basis
when he was about 11 years old.
The boys all told similar stories at trial. When
Shaffer and the boys were alone at the house, Shaffer
told them to swim naked or to take their swim trunks
off when they went in the hot tub. Shaffer also told
them to shower in pairs when they got out of the hot
tub. He either watched them shower or joined them in
the shower and helped to wash them or told them to
wash each other. Shaffer often tugged or flicked their
penises and commented on the size of their penises
while they were showering.
In the evenings, Shaffer played pornographic
movies for the boys. He told them to take off their
App.59a
pants and to masturbate while watching movies.
Shaffer watched the boys masturbate and eventually
he masturbated the boys while they watched the
movies.
Each victim testified to the details of the sexual
abuse he suffered.
Counts 1 and 2: Shaffer Touched S.F.’s Penis
Twice When S.F. Was Under the Age of 14 Years
Old
S.F. testified that he went to Shaffer’s house most
weekends over the span of eight months to a year. S.F.
first spent the night at Shaffer’s house when he was
13 years old, along with M.S., S.S. and J.W. Shaffer
suggested that the boys all go into the hot tub naked.
This did not sound right to S.F., but he went along
with it because he did not want to be the odd one out.
Afterward, Shaffer told S.F. and S.S. to shower
together. Shaffer washed S.S., including his penis. The
boys and Shaffer watched a pornographic movie. S.S.
and J.W. each masturbated.
S.F. spent the next weekend at Shaffer’s house as
well. The same activities occurred in the evening—
sitting naked in the hot tub, joint showers, and
watching a pornographic movie. This time, S.F.
masturbated while watching the movie as the other
boys did. Shaffer commented on S.F.’s penis then
grabbed S.F.’s penis and stroked or massaged the
head of S.F.’s penis for about three seconds. S.F. told
Shaffer he was uncomfortable with Shaffer touching
his penis. Shaffer tried to convince him that this was
common among men. S.F. did not tell his parents because he felt inexperienced, scared and alone. He
questioned his sexuality and felt that he would be
App.60a
judged. At the time, M.S., S.S., and J.W. were the only
friends he had and he did not want to lose contact with
them.
Shaffer groped S.F. a second time when S.F. was
masturbating while watching a pornographic movie
with the other boys. S.F. described Shaffer reaching
over and grabbing S.F.’s penis, squeezing it, and
letting his fingers drag along S.F.’s penis while pulling
his hand away. S.F. said he was “in the transition time
between 13 and 14 or 14.” The prosecutor asked him
to remember his age. S.F. said he was under 14 years
old this second time that Shaffer touched him. Four
years before trial, in 2013, S.F. told a detective that
he was under 14 when Shaffer touched his penis.
In the years following Shaffer’s abuse, when S.F.
was between the ages of 14 and 16, his grades plummeted, and he began experiencing anxiety, depression,
lack of sleep, stomach problems and vomiting. S.F.
became addicted to drugs, including heroin, in his later
teen years. He stole to support his drug habit and had
two theft convictions. At the time of trial, he had been
off heroin for two years.
In early 2012, J.W. told his aunt about Shaffer.
His aunt called S.F.’s mother and suggested she ask
S.F. about Shaffer. S.F.’s mother asked him if Shaffer
had done anything to him. S.F. denied anything
happened because he was not ready to talk about the
abuse. He told his mother about the abuse a few
months later, however, because he wanted to assure
his parents that they were good parents, and that his
drug addiction and other bad behavior was not due to
anything they had done. He was crying and withdrawing into himself when he told his mother. Ten
years after the abuse, at the time of trial, S.F. said it
App.61a
“hurts my stomach. It hurts everything . . . [to remember those] fucked-up images. They’re something that
children shouldn’t have to see.”
An attorney contacted S.F. about a civil lawsuit
against Shaffer. S.F. joined the lawsuit. He testified
he was not making up the descriptions of abuse to get
money from Shaffer. He wanted justice.
Counts 3, 4, 5 and 6-Shaffer Orally Copulated
J.W.; Twice Grabbed J.W.’s Penis by Force or
Fear When J.W. Was Under the Age of 14; and
Committed a Lewd Act on J.W. When J.W. Was
14 or 15 and Shaffer Was More Than 10 Years
Older
J.W. was described as “short and chubby” when
he was 12 years old and started spending time with
Shaffer. He was about four feet five inches tall. His
mother died when he was five years old. He lived with
his father and stepmother, but was raised mostly by
his aunt and uncle, who lived across the street from
his house. J.W. was one of the first friends to be taken
to Shaffer’s house, as he was “pretty much at [the S.]
house on a daily basis. . . . He went everywhere with
[the S. family].” Mrs. S. identified a picture of J.W. at
Vail Lake when he was “twelve-ish.”
The joint showers, pornographic movies and
sexual touching began soon after J.W. started going to
Shaffer’s house. Shaffer forced J.W. to masturbate
him when J.W. was 13 to 14 years old. Shaffer grabbed
J.W.’s hand and put it on Shaffer’s penis. J.W. did
nothing so Shaffer held J.W.’s hand and moved it up
and down on Shaffer’s penis. J.W. communicated to
Shaffer that he did not want to be touched or
masturbated. He was fidgety, threw his leg up, and
App.62a
showed by body language that he did not want to participate. Against J.W.’s resistance to being touched,
Shaffer grabbed J.W.’s penis and masturbated him more
than 25 times before J.W. turned 14. J.W. always
indicated by body language he did not want to participate.
Shaffer orally copulated J.W. about 10 times,
against his will, including five times before he turned
14. These instances occurred at Shaffer’s house and
when camping, including in the Jeep at Vail Lake and
in the Jeep at Ocotillo Wells. Shaffer’s sexual assaults
of J.W. stopped only when J.W. was 15 years old and
he no longer spent time with Shaffer.
J.W. described a camping trip to Vail Lake that
he made with Shaffer and the S. family when he was
13 years old. The S. family went off in their Jeep,
leaving J.W. alone with Shaffer. Shaffer let J.W. drive
his Jeep. At some point J.W. spilled soda on his
clothes. Shaffer told him to take his clothes off so that
he would not get soda all over the Jeep. J.W. did not
want to drive naked, but did so out of fear. J.W. felt
that he had to do what Shaffer told him to do. Shaffer
told J.W. to masturbate while driving and J.W.
complied. Shaffer touched J.W.’s penis, and grabbed
J.W.’s hand and put it on Shaffer’s penis, over his
clothes. Shaffer panicked when they got back to the
campsite and saw that the S. family was there. He told
J.W. to hurry and put his clothes back on.
J.W. testified about a time when he was 14 and
Shaffer called him into his bedroom early one morning.
J.W. went to Shaffer’s bedroom although he did not
want to go. Shaffer touched his own penis and told
J.W. to masturbate, and to masturbate Shaffer. J.W.
said he did not want to. Shaffer grabbed J.W.’s hand
App.63a
and put it on Shaffer’s penis. J.W. pulled his hand
back and scooted away from Shaffer, showing by his
body language that he did not want to be touched.
Shaffer put his mouth on J.W.’s penis and orally
copulated him for a couple of minutes. Shaffer told
J.W. to orally copulate Shaffer, but J.W. refused.
J.W. became addicted to heroin and painkillers to
cover up his physical and emotional pain. He stole to
get money to buy drugs and had theft convictions. He
had not used drugs for about four months before trial.
J.W. told his aunt and uncle about the sexual
assaults in early 2012. He was inconsolable, curled up
in a fetal position, crying, and utterly in pain. A police
detective interviewed him in 2013 but did not follow
up on this investigation, until M.S., S.S. and S.L.
reported the crimes in 2015.
J.W. explained that he minimized the sexual
assaults when talking to the police detective and
through the beginning of his testimony because he
was too embarrassed to talk about the abuse in front
of people. Both when talking to the officer and in
court, J.W. was reluctant to admit how many times
Shaffer assaulted him.
J.W. had no civil lawsuits against Shaffer.
Count 7-Shaffer Committed a Lewd Act on M.S.
When M.S. was 14 or 15 Years Old and More
Than 10 Years Younger Than Shaffer
M.S. testified he was 13 when he met Shaffer, and
from then on he went to Shaffer’s house or camping
with him almost every weekend for about four years.
He testified that one time, Shaffer tried to wash him
in the shower, and that Shaffer tugged his penis with
App.64a
two fingers and his thumb. Another time when the
boys and Shaffer were watching a pornographic
movie, M.S. moved into the kitchen to masturbate in
private. Shaffer grabbed M.S.’s penis and told him to
go sit on the couch with the other boys. M.S. also testified that Shaffer touched M.S.’s penis in the hot tub.
M.S. did not tell his parents about the abuse
when it occurred because he was terrified of their
reaction and what could happen to his father’s job, as
it was the only job his father ever had. M.S. told his
parents in 2015, after S.S. told them that Shaffer had
abused him. M.S. broke down, cried, bawled and raged
when telling his parents about the abuse.
M.S. was a plaintiff in a civil lawsuit against
Shaffer. He testified that his testimony was not
influenced by the suit.
Count 8-Shaffer Committed a Lewd Act on S.S.
When He Was Under 14
S.S. was 10 years old when he began going to
Shaffer’s house regularly. He saw his first pornographic
film at Shaffer’s house. During movie time, Shaffer
would rub S.S.’s penis with his hand to get it hard,
starting when S.S. was 10. Shaffer masturbated S.S.
at least 50 times through the years. S.S. had to take
showers with other boys and Shaffer. During the
showers, Shaffer would “continuously touch” and
“flick our peckers.”
S.S. said that he sometimes went into Shaffer’s
bedroom with him. S.S. said he only let Shaffer
masturbate him, nothing else. Shaffer also masturbated
S.S. in the motorhome when camping. The mastur-
App.65a
bation by Shaffer started when S.S. was 10 and went
on until he was 14 or 15 years old.
Some of the other boys saw Shaffer’s abuse of S.S.
One time when M.S. was not present, J.W. saw
Shaffer masturbate S.S. while they were watching a
pornographic movie. S.S. was naked, lying across
Shaffer’s lap as Shaffer sat on the couch. M.S. saw
Shaffer tug on the penises of the younger boys, S.S.
and S.L., when they were about 11 years old. M.S. also
saw Shaffer take S.S. and J.W. individually into his
bedroom when S.S. was 10 or 11 years old, and J.W.
was 12 or 13 years old. S.L. saw Shaffer touch S.S.’s
penis in the hot tub.
S.S. told his parents about the assaults in 2015.
He was crying and slobbering, his nose was running,
he was blurting everything out, slurring his words
and could barely get his words out because he was
talking so fast. The family later went to the police, and
brought S.L. along. An officer interviewed S.S. in
2015. S.S. testified that he did not tell the truth to the
officer because he felt uncomfortable telling another man
about the extent of the abuse. The statement he gave
to the police was “very wrong” and inaccurate in that
he did not describe the full extent of the abuse. S.S.
was afraid that the officer would judge him based on
what happened in the past.
S.S. was suing Shaffer for money. He said he was
more interested in prosecuting Shaffer, however, than
in getting money from Shaffer.
App.66a
Counts 9, 10, 11, 12 and 13: Shaffer Twice
Sodomized and Once Orally Copulated S.L. When
S.L. Was Under 16 and Twice Committed Lewd
Acts on Him When S.L. Was Under 14
S.L. was the youngest child of the group of boys,
about six months younger than S.S. He lived with his
mother; his father was absent from his life. His
mother moved frequently, uprooting S.L. S.L. lived in
the neighborhood of M.S., S.S., J.W. and S.F. for about
a year, when he was nine or 10, and became friendly
with the boys. He moved to Menifee the following
year. After he moved away from the neighborhood,
when he was about 11, the S. family introduced S.L.
to Shaffer and took him to Shaffer’s house. He went
camping with Shaffer or to Shaffer’s house every
weekend for a couple of years from then on. Shaffer
drove to Menifee to pick up S.L. every weekend and
drove him to Shaffer’s house in Corona.
A few months after his first visit to Shaffer’s
house, Shaffer started touching S.L. S.L. was 11-l/2 or
12 years old when the sexual abuse started. Shaffer
touched and stroked S.L.’s penis multiple times when
they were both naked in the hot tub. Shaffer also frequently touched and stroked S.L.’s penis with his hand
in the shower, and masturbated the boys, including
S.L., when they watched pornographic movies. By the
time S.L. was 13, there was little or no more masturbation while watching pornography.
S.S. testified that he saw Shaffer touch S.L.
sexually through the ages of 10 to 14 years old. This
occurred in different places: in the living room, in the
office, in the shower, outside of the house, and while
camping.
App.67a
When S.L. turned 14, he moved into Shaffer’s
house because it was more stable than living with his
mother. Shaffer took care of S.L. S.L. thought of Shaffer
as a father. M.S., S.S., J.W., and S.F. had all stopped
going to Shaffer’s house before S.L. moved in. S.L.
lived with Shaffer for a year and a half. During this
time, Shaffer continued to sexually touch S.L.’s penis
while in the hot tub and in the shower.
Shaffer sodomized S.L. twice, both times when S.L.
was 14 years old. The first time occurred in Shaffer’s
bedroom after S.L. had been living with him for four
or five months. Shaffer put his penis inside S.L.’s anus
for two or three minutes. The second time occurred
about a month later when Shaffer and S.L. were
cleaning the motorhome in the garage. Shaffer again
put his penis inside S.L.’s anus for more than two
minutes. The penetration hurt both times, and S.L.
had bleeding afterwards.
Shaffer orally copulated S.L. when S.L. was 14
years old. In the bedroom, S.L. put his mouth on
Shaffer’s penis and Shaffer put his mouth on S.L.’s
penis. In 2015, S.L. told a detective that Shaffer orally
copulated him three times a week for about two years.
S.L. moved back with his mother in Barstow or
Victorville after about a year and a half at Shaffer’s.
S.S. called S.L. in 2015 and talked with S.L.
about going to the police. S.L. testified he went to the
police because what happened was not right. Someone
from a law firm later called S.L. and told him about
the civil lawsuit against Shaffer. S.L. joined as a plaintiff in the suit. He knew that he was suing Shaffer but
was not aware of the details. S.L. had not talked to
anyone in the S. family or to S.F. about the suit. S.L.
App.68a
said that he was not making these claims against
Shaffer to obtain money.
Additional Information
C.G. was the same age as S.F. and was friends
with S.F., S.L., M.S., S.S., and J.W. When he was
about 12 or 13 years old, he went to Shaffer’s house
three to four times per month for about three to five
months. He went camping with Shaffer and the S.
family once.
C.G. testified that at Shaffer’s home, Shaffer told
the boys to take their shorts off after swimming. C.G.
was apprehensive, but S.S. told him that all the boys
did it. C.G. also found it not normal that Shaffer told
the boys to shower together.
C.G. spent the night at Shaffer’s house only once.
That night, Shaffer put on a pornographic movie and
told the boys to take their pants off and masturbate.
C.G. left the room. He never went back to Shaffer’s
house.
R.W. also testified. His father, like Mr. S., worked
at UDC, and his family was very friendly with the S.
family. R.W. went camping with the S. family and
Shaffer occasionally. Once when R.W. took a shower
in Shaffer’s motorhome and got out of the shower,
Shaffer was standing nearby with a towel, but did not
give the towel to R.W. Instead, Shaffer commented on
R.W.’s penis and told the other boys, M.S. and S.S., to
look at R.W.’s penis. R.W. told Shaffer that comment
was inappropriate.
App.69a
DISCUSSION
1.
Sufficient Evidence Supports Counts 1, 2, 4, 5,
and 13
Shaffer contends that there was insufficient evidence that he committed two lewd acts on S.F. when
S.F. was under the age of 14 (counts 1 and 2); that he
twice lewdly touched J.W. with force or fear when
J.W. was under 14 (counts 4 and 5); and that he committed a lewd act on S.L. when S.L. was under 14
(count 13). We disagree.
A. Legal Principles
On review for sufficient evidence we apply a wellsettled standard. “[W]e must determine 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. We review the entire record in the light
most favorable to the judgment below to determine
whether it discloses sufficient evidence— that is, evidence
that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence
proves guilt beyond a reasonable doubt. [Citation.] We
neither reweigh the evidence nor reevaluate the
credibility of witnesses. [Citation.]” (People v. Jennings
(2010) 50 Cal.4th 616, 638 (Jennings); Jackson v.
Virginia (1979) 443 U.S. 307, 318–319 (Jackson).) “By
their very nature, sex crimes are usually committed
in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often
presents conflicting versions of the event and requires
the trier of fact to make difficult credibility determinations.” (People v. Falsetta (1999) 21 Cal.4th 903,
App.70a
915.) “ ‘Resolution of conflicts and inconsistencies in
the testimony is the exclusive province of the trier of
fact. [Citation.] Moreover, unless the testimony is
physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.’ “ (People v. Brown (2014) 59 Cal.4th 86, 106
(Brown).)
In support of his claims of insufficiency of evidence, Shaffer relies on the evidence most favorable to
him and points out inconsistent statements made by
the witnesses. His arguments are neither persuasive nor
in compliance with the well-known rules of review of
sufficiency of evidence. (See, e.g. Jennings, supra, 50
Cal.4th at pp. 638–639; Jackson, supra, 443 U.S. at
pp. 318–319; Brown, supra, 59 Cal.4th at p. 106.)
The response of the Supreme Court in Brown to
an argument similar to Shaffer’s is apt: “Defendant
argues at length that witnesses testifying about these
statements were untrustworthy, had given inconsistent statements, had delayed reporting, and were
drug users. The jury heard the direct testimony and
extensive cross-examination of each witness. It heard
evidence from rebuttal witnesses. The credibility question was vigorously argued. The final determination
as to the weight of the evidence is for the jury to make.
We do not reweigh it and substitute our view for theirs.”
(Brown, supra, 59 Cal.4th at p. 106.)
The jury heard inconsistent statements from the
witnesses and determined which statements were
true and which were not. We have examined the
claims and found none that were physically impossible
or inherently improbable. We have no power to
overturn the jury’s credibility findings. (Brown, supra,
59 Cal.4th at p. 106.)
App.71a
B. Counts 1 and 2, Lewd Touching of S.F.
When He Was Under 14
Lewd touching of a minor under the age of 14 requires proof of the minor’s age at the time of the
touching. (§ 288, subd. (a).) S.F. testified first that he
was “probably 13 or 14” when the first touching
happened. After giving it “a lot of thought,” S.F. said
definitively that he was 13 years old when Shaffer
touched his penis. Similarly, he said that he was “in
the transition time between 13 and 14 or 14” at the
time of the second touching but then confirmed that
he was under 14. Four years before trial, S.F. told an
officer that he was under the age of 14 when Shaffer
touched him.
Shaffer points out that there was conflicting information about S.F.’s age when Shaffer touched S.F.’s
penis. The evidence in support of a jury’s verdict is not
insufficient just because the evidence is conflicting.
The jury resolved the conflicting testimony by accepting
beyond a reasonable doubt S.F.’s testimony that he
was 13 both times Shaffer lewdly touched him. We
cannot second-guess the jury’s finding. We cannot
reweigh the evidence, reevaluate S.F.’s credibility, or
reverse the convictions. (Brown, supra, 59 Cal.4th at
p. 106; Jennings, supra, 50 Cal.4th at p. 639.)
Shaffer also argues that there was insufficient
evidence to show that he lewdly touched S.F. twice.
He points to the evidence most favorable to himself—
that S.F. initially said he was touched only once. After
reviewing his 2013 statement to a police officer, however, S.F. said that his memory was refreshed and
that he had been touched a second time. Further, he
described Shaffer’s acts in detail. S.F. said that the
first time Shaffer touched his penis, Shaffer commented
App.72a
on it, then grabbed it and stroked or massaged the
head for about three seconds. The second time Shaffer
“groped” his penis, the boys were again masturbating
while watching pornography. Shaffer made a “reach,
grab, squeeze motion. And that’s coming off, like,
lightly letting go, but keep dragging your fingers
across. . . . ” The description of the second touching
was markedly different from the description of the
first touching, supporting the jury’s finding that
Shaffer lewdly touched S.F. twice.
Appellate counsel claims that after testifying
that he was touched twice, S.F. said, “I’ll be honest, I
don’t remember.” Counsel has taken this quote completely out of context. S.F. said he “could not remember” in response to a question about whether Shaffer
had an erection when he touched S.F.’s penis. The
question and answer were:
“Q.: Did you notice if [Shaffer] had an erection at
the time?
“A.: I’ll be honest. Right now, I don’t remember.”
Counsel’s assertion that S.F. said he could not
remember the second touching misstates the record.
Further, in his reply brief, appellate counsel quoted
S.F. as saying that he “really has no memory of that
particular episode.” This purported quote is not in
record.
We review the record in the light most favorable
to the judgment and find sufficient evidence supports
the jury’s finding that Shaffer lewdly touched S.F. two
separate times, and that S.F. was under the age of 14
both times. (Brown, supra, 59 Cal.4th at pp. 105–106;
Jennings, supra, 50 Cal.4th at pp. 638–639.)
App.73a
C. Counts 4 and 5, Lewd Touching of J.W.
With Force or Fear When He Was Under
14
Shaffer contends there was insufficient evidence
of force or fear to support the jury’s findings in counts
4 and 5 that Shaffer committed two lewd acts on J.W.
with force or fear. Sufficient evidence of duress supports the jury’s findings.
Section 288, subdivision (b), prohibits lewd acts
“by use of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or
another person. . . . ” (§ 288, subd. (b).) Duress as used
in the statute can be committed by use of threats,
psychological pressure, or intimidation sufficient to
“‘“coerce a reasonable person of ordinary susceptibilities to (l) perform an act which otherwise would
not have been performed or, (2) acquiesce in an act to
which one otherwise would not have submitted.”’”
(People v. Soto (2011) 51 Cal.4th 229, 246 (Soto),
emphasis omitted.) Because duress involves psychological coercion, relevant factors include the relative
size and age between the defendant and the victim, a
position of dominance and authority, and the isolation
of the victim. (People v. Schulz (1992) 2 Cal.App.4th
999, 1005.) J.W. was 12 or 13 years old and of short
stature; Shaffer was over 40. Shaffer was in a position
of authority and dominance when J.W. was at Shaffer’s
house and in his motorhome, particularly when J.W.
was alone with Shaffer in Shaffer’s bedroom and on
camping trips.
J.W. testified that each of the multiple times
Shaffer grabbed J.W.’s penis before he was 14, J.W. was
fidgety, threw his leg up, and generally showed, by his
body language, that he did not want to be touched or
App.74a
masturbated. He testified that Shaffer orally copulated
him about five times, against his will, before he turned
14, when J.W. was alone with Shaffer at his house and
when camping, including in the Jeep at Vail Lake and
in the Jeep at Ocotillo Wells. J.W. explained the
duress and coercion that he felt when left alone with
Shaffer at Vail Lake and Shaffer made him take his
clothes off in the Jeep. He stated that “[i]t was one of
those things where, you know, that if you don’t . . .
comply, that it’s gonna possibly go the other way and
not be good. [¶ ] So, once again, like out of fear, you
know, I did.” J.W. said he felt that he had to do what
Shaffer told him to do.
J.W.’s testimony supported the jury’s finding that
Shaffer used duress to “‘“coerce a reasonable person of
ordinary susceptibilities to . . . acquiesce in an act to
which one otherwise would not have submitted.”’”
(Soto, supra, 51 Cal.4th at p. 246.) His testimony was
neither physically impossible nor inherently improbable and was sufficient by itself to support the conviction. (Brown, supra, 59 Cal.4th at p. 106.)
D. Count 13, Lewd Touching of S.L. When
S.L. Was Under 14
Shaffer claims there was insufficient evidence
that he lewdly touched S.L. more than once before S.L.
turned 14, count 13. Shaffer makes this argument,
again, by mischaracterizing the record, asserting that
S.L. testified to being touched only once before he
moved in with Shaffer when S.L. was 14.
S.L. testified that from the time he was 11-l/2 or
12, Shaffer touched and stroked S.L.’s penis multiple
times in the hot tub; Shaffer frequently touched and
stroked S.L.’s penis when S.L. was in the shower; and
App.75a
Shaffer masturbated S.L. numerous times while they
watched pornographic movies. S.L.’s testimony as a
whole and in context supported the jury’s finding that
Shaffer lewdly touched S.L. more than once when S.L.
was under 14 years old.
2.
Ineffective Assistance of Counsel
Shaffer contends his counsel was constitutionally
ineffective for failing to conduct adequate cross-examination of, investigate, or emphasize the purported
financial motivation of the four victims who have filed
a civil lawsuit against Shaffer. We find neither
deficient performance nor prejudice.
“‘“To establish ineffective assistance of counsel, a
defendant must show that (l) counsel’s representation
fell below an objective standard of reasonableness
under prevailing professional norms, and (2) counsel’s
deficient performance was prejudicial, i.e., there is a
reasonable probability that, but for counsel’s failings,
the result would have been more favorable to the
defendant. [Citation.] ‘A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.’ (Strickland v. Washington [(1984)] 466 U.S.
668, 694 [Strickland].)” “[Citation.]” (People v. Rices
(2017) 4 Cal.5th 49, 80.) “In reviewing a claim of
ineffective assistance of counsel, we give great deference to counsel’s tactical decisions.” (People v. Johnson
(2015) 60 Cal.4th 966, 980.) We presume that counsel’s
performance fell within the wide range of professional
competence unless the defendant shows otherwise.
The defendant has the burden of presenting evidence
showing what information could have been discovered
and showing that the additional information would
have created a reasonable probability, not just a
App.76a
possibility, of a more favorable result. (People v. Carrasco (2014) 59 Cal.4th 924, 983–991 (Carrasco).)
Conclusory allegations are not sufficient. (See In re
Reno (2012) 55 Cal.4th 428, 469, 493 [vague and
conclusory claims, not supported by persuasive factual
allegations, are not sufficient to show error].)
S.S., M.S., S.L. and S.F. all testified that they had
filed a civil lawsuit against Shaffer.4 They also testified
that they were more interested in justice from Shaffer
than money and their testimony was not influenced
by the suit. Defense counsel argued during closing
argument that these four victims had a financial
incentive to lie about their criminal allegations to support their civil lawsuit.
Shaffer’s claim fails on both prongs of ineffective
assistance. He cannot show deficient performance.
Four of the five victims told the jury that they were
suing Shaffer for money, and defense counsel argued
they had a financial motivation to lie. Shaffer has not
shown what other information defense counsel would
have found or elicited with further investigation or
cross-examination. Conclusory allegations are not sufficient. Because he cannot show what additional evidence could have been produced, Shaffer cannot show
any likelihood of a more favorable result if his counsel
had acted differently. (Carrasco, supra, 59 Cal.4th at
pp. 983–991; Reno, supra, 55 Cal.4th at pp. 469, 493.)
Moreover, the testimony of J.W. and C.G., who were
not suing Shaffer, corroborated the acts described by
S.S., M.S., S.F. and S.L. Shaffer has not shown incompetence of counsel.
4 J.W. did not sue Shaffer.
App.77a
3.
Notice of Charges
Shaffer further contends that he was denied the
due process right to notice of the charges against him.
He asserts that even though he had notice that he had
been charged with two counts of committing lewd acts
on J.W. with force or duress, his rights were violated
because the prosecution “altered” its theory of the
crimes, thereby depriving him of notice of the acts.
The right to due process of law requires that one
accused of a crime must be advised of the nature and
cause of the charges against him so that he has a reasonable opportunity to prepare and present his
defense and not be taken by surprise by evidence
offered against him at trial. (People v. Jones (1990) 51
Cal.3d 294, 317 (Jones); People v. Fernandez (2013)
216 Cal.App.4th 540, 554 (Fernandez).) In cases
involving sexual molestation of children, the function
of the accusatory pleading is to give notice to the
defendant of the nature of the offense charged and
whether it occurred within the applicable limitations
period. (Jones, at p. 317; Fernandez, at p. 555.) Notice
of the specific time and place of the commission of the
acts is not necessary because time and place are not
elements of the crime. (Jones, at p. 317; Fernandez, at
pp. 554–555.)
As J.W. testified, he minimized the sexual assaults
when talking to the detective. The detective’s testimony
at the preliminary hearing was brief, lacking detail.
Detective Andy Bryant testified at the preliminary
hearing that J.W. told him that Shaffer would take
J.W.’s hand and put it on Shaffer’s penis and “he [i.e.,
J.W.] didn’t want to do that, but he did do that three
times out of fear.” This testimony gave sufficient notice
to Shaffer of the nature of the charges of committing
App.78a
lewd acts with force, duress or fear. (Jones, supra, 51
Cal.3d at p. 317; Fernandez, supra, 216 Cal.App.4th
at pp. 554–555.) Bryant’s testimony also gave notice
of the time period during which these crimes occurred.
He testified that J.W. said Shaffer touched him
sexually every weekend for a month in the summer
when he was 13 and orally copulated him about 10
times between the summer he was 13 and the summer
he was 14. J.W. specifically told the officer that he was
13 during one of the times that he had to masturbate
Shaffer.
When multiple sexual offenses against a child
occur over a period of time, and especially when the
trial is several years later, much of the evidence may
be generic, that is, not well differentiated in the testimony by the victim. In such cases due process requires
that the defendant be given notice of the nature of the
charges against him sufficient to give him a reasonable opportunity to prepare and present a defense
against the charges, and sufficient notice of the time
period in which the act or acts occurred so that he
could assert any limitations defense that was applicable. (Jones, supra, 51 Cal.3d at p. 317; Fernandez,
supra, 216 Cal.App.4th at pp. 554–555.) Shaffer
received this notice from Detective Bryant’s testimony
at the preliminary hearing.
Shaffer had no right to specific notice of the time,
place, and circumstances of the offenses. (Jones, supra,
51 Cal.3d at p. 317.) Shaffer did not object when J.W.
testified that Shaffer grabbed J.W.’s hand and put it
on Shaffer’s penis while J.W. was driving the Jeep
naked. Nor did he request additional time to prepare
a defense to this incident. Once J.W. described that
event, Shaffer had notice of the specific circumstances
App.79a
of one of his lewd touchings of J.W. by force or fear.
Further, Shaffer’s defense was a full denial that he
committed any sexual offenses against any of the
children. He did not address this incident during his
testimony but broadly asserted that he had no sexual
encounters with the boys at all. No error occurred.
DISPOSITION
The judgment is affirmed.
Benke
Judge
We Concur:
McConnell
Presiding Judge
Haller
Judge
App.80a
ORDER DENYING MOTION FOR
RECONSIDERATION, U.S. COURT OF
APPEALS FOR THE NINTH CIRCUIT
(JUNE 9, 2025)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________
SHAWN EDWARD SHAFFER,
Petitioner-Appellant,
v.
RAYMOND MADDEN, Warden,
Respondent-Appellee.
________________________
No. 24-2343
D.C. No. 2:22-cv-02451-SPG-MRW
Central District of California, Los Angeles
Before: TASHIMA and LEE, Circuit Judges.
ORDER
The motion (Docket Entry No. 5) for reconsideration is denied. See 9th Cir. R. 27-10.
No further filings will be entertained in this closed
case.
App.81a
CLERK LETTER,
SUPREME COURT OF THE UNITED STATES
(JULY 21, 2025)
Supreme Court of the United States
Office of the Clerk
Washington, DC 20543-0001
________________________
Clerk
U.S. Court of Appeals for the Ninth Circuit
95 Seventh Street
San Francisco, CA 94103-1526
Re: Shawn Edward Shaffer v. James Hill, Warden
Application No. 25A58
(Your No. 24-2343)
Dear Clerk:
The application for an extension of time within
which to file a petition for a writ of certiorari in the
above-entitled case has been presented to Justice
Kagan, who on July 17, 2025, extended the time to and
including November 6, 2025.
This letter has been sent to those designated on
the attached notification list.
Sincerely,
Scott S. Harris
Clerk
By:
/s/ Pipa Fisher
Case Analyst
App.82a
NOTIFICATION LIST
Mr. David Michael Murphy
Murphy & Fink LLP
466 Foothill Blvd #430
La Canada, CA 91011
Clerk
U.S. Court of Appeals for the Ninth Circuit
95 Seventh Street
San Francisco, CA 94103-1526
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.