Free Response to Order to Show Cause - District Court of California - California

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GERALD A. ENGLER Senior Assistant Attorney General 4 JULIET B. HALEY Deputy Attorney General 5 RENÉ A. CHACÓN, State Bar No. 119624 Supervising Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 6 San Francisco, CA 94102-7004 Telephone: (415) 703-5957 7 Fax: (415) 703-1234 Email: [email protected] 8 9 Attorneys for Respondent 10 11 12 13 FLORENCIO TORRES RODRIGUEZ, 14 Petitioner, 15 v. 16 RICHARD SUBIO, 17 Respondent. 18 19 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANSWER 20 21 22 23 24 25 26 27 28 No. C 07-04796 WHA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GERALD A. ENGLER Senior Assistant Attorney General 4 JULIET B. HALEY Deputy Attorney General 5 RENÉ A. CHACÓN, State Bar No. 119624 Supervising Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 6 San Francisco, CA 94102-7004 Telephone: (415) 703-5957 7 Fax: (415) 703-1234 Email: [email protected] 8 9 Attorneys for Respondent 10 11 12 13 FLORENCIO TORRES RODRIGUEZ, 14 Petitioner, 15 v. 16 RICHARD SUBIO, 17 Respondent. 18 19 20 21 INTRODUCTION Petitioner, Florencio Torres Rodriguez, is presently serving a 10-year sentence for MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANSWER No. C 07-04796 WHA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

22 convictions of four counts of lewd conduct on a child under 14 years of age, Cal. Penal Code § 23 288(a). On September 18, 2007, petitioner filed the instant petition for writ of habeas corpus under 24 28 U.S.C. § 2254. On September 24, 2007, the Court issued the Order to Show Cause finding three 25 cognizable claims: (1) the trial court had improper venue with respect to counts three and four and 26 therefore violated petitioner's due process rights; (2)there was insufficient evidence with respect 27 to count four in violation of due process; and (3) ineffective assistance of counsel in violation of 28 petitioner's Sixth Amendment rights. See Order to Show Cause.
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STATEMENT OF THE CASE By amended information the Santa Clara County District Attorney charged petitioner with

3 four counts of lewd and lascivious conduct on a child under the age of 14 years, Cal. Penal Code § 4 288(a), and alleged substantial sexual conduct with respect to two counts, Cal. Penal Code § 5 1203.066(a)(8). See Respondent's Exhibit A at 130-34 (Clerk's Transcript hereinafter referred to 6 as "CT"). The information also alleged one prior prison term commitment, Cal. Penal Code § 7 667.5(b). CT at 133. 8 On February 18, 2004, a jury found petitioner guilty as charged and found true the

9 substantial sexual conduct allegations with respect to two counts. CT at 247-50, 253. 10 On July 20, 2004, the trial court denied the defense motion for a new trial. CT at 381.

11 The trial court denied petitioner probation and imposed a 10-year prison term. CT at 381, 384-85. 12 On April 17, 2006, the California Court of Appeal affirmed the judgment in an

13 unpublished decision. See Petn. Exh. A. 14 15 Exh. B. 16 On September 18, 2007, petitioner filed the instant petition for writ of habeas corpus under On June 28, 2006, the California Supreme Court denied the petition for review. See Petn.

17 28 U.S.C. § 2254. On September 24, 2007, the Court issued the Order to Show Cause. 18 19 LEGAL STANDARDS This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996

20 (AEDPA), which imposes a "highly deferential" standard for evaluating state court rulings and 21 "demands that state court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 22 U.S. 19, 24 (2002) (per curiam). Under AEDPA, the federal court has no authority to grant habeas 23 relief unless the state court's ruling was "contrary to, or involved an unreasonable application of," 24 clearly established Supreme Court precedent. 28 U.S.C. § 2254(d)(1). A decision constitutes an 25 unreasonable application of Supreme Court law if the state court's application of law to the facts is 26 not merely erroneous, but "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). 27 Thus, "[o]nly if the evidence is `too powerful to conclude anything but' the contrary" should the 28 court grant relief. Edwards v. Lamarque, 476 F.3d 1121, 1126 (9th Cir. 2007) (en banc). The
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1 petitioner bears the burden of showing that the state court's decision was unreasonable. Visciotti, 2 537 U.S at 25. STATEMENT OF FACTS 3 Prosecutor's Case In Chief 4 5 Thirteen-year-old Maile Doe described petitioner as her stepfather. See Respondent's

6 Exhibit E at 63 (hereinafter referred to as "RT"). When she resided in an apartment on Lapala 7 Drive, Maile was 10 years old. RT at 64. Sometime after Halloween, petitioner sexually touched 8 Maile in that apartment. RT at 66, 82. While falling asleep in front of the television with her 9 stepsister Gabrielle, petitioner touched Maile's "private area" or vagina. RT at 68-69. Petitioner 10 then touched her vagina with his penis, penetrating her. RT at 70-71, 273. Petitioner touched 11 Maile's breasts with his mouth. RT at 71-72, 272-73. Petitioner also touched Maile's "butt." RT 12 at 79. The touching stopped when Maile got off the couch. RT at 74. Petitioner invited Maile 13 upstairs. RT at 75. Maile had "wet stuff" on her vagina. RT at 77, 273. 14 In 2001, while Maile was in the fifth grade, the family moved to Kelseyville. RT at 88.

15 There, petitioner sexually touched Maile while the children were "camping outside on the balcony." 16 RT at 92. While asleep on an air mattress, Maile felt "something touch her mouth" that Maile 17 swatted away with her hand. RT at 94. Maile believed it "was [petitioner's] penis." RT at 94. 18 Maile remembered that petitioner put his penis up against her mouth while Maile was in the tent. 19 RT at 150, 276. Petitioner also touched Maile's vagina with his hand and penis, "inside and out." 20 RT at 95, 150. At some point, Maile reported the touches to her mother. RT at 99. Maile had no 21 doubt that petitioner penetrated her vagina with his penis. RT at 106. 22 Thirteen-year-old Gabrielle Doe described petitioner as her father. RT at 157. Maile told

23 Gabrielle that petitioner had touched her inappropriately. RT at 159-60. After the report, Gabrielle 24 saw them together, and they continued to hug each other. RT at 168. 25 On July 21, 2002, San Jose Police officer Rocky Zanotto responded to a child molest

26 report. RT at 178. Maile was crying and did not want to talk at first. RT at 179. She gradually 27 became comfortable talking about the incidents. RT at 181. 28 Officer Louis Lucero taped an interview with Maile. RT at 268. The taped interview was
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1 played for the jury. RT at 296. 2 By stipulation, the parties informed the jury that petitioner was convicted of misdemeanor

3 inflicting corporal injury on Melanie F., misdemeanor battery on Melanie F., and felony inflicting 4 corporal injury resulting in a traumatic condition on Melanie F. See Respondent's Exhibit D at 4-5. 5 The jury was also informed that petitioner was additionally convicted of misdemeanor corporal 6 injury on a spouse who was not Melanie F. RT at 379. 7 Melanie F. described Maile as her daughter. Exhibit D at 6. Petitioner and Melanie F.

8 were married about 10 years. Exhibit D at 7. Melanie F. had convictions for misdemeanor petty 9 theft, misdemeanor embezzlement, and misdemeanor petty theft with a prior. Exhibit D at 8-9. 10 Maile reported being sexually abused by petitioner. Exhibit D at 10. 11 On December 2, 2002, SART examiner Marylou Ritter examined Maile. Exhibit D at 44.

12 There was no evidence of penetrating trauma. Exhibit D at 46. The finding was consistent with 13 Maile's report. Exhibit D at 46-48. 14 District Attorney investigator Carl Lewis qualified as an expert on Child Abuse

15 Accommodation Syndrome. Exhibit D at 79. Child sexual abuse typically occurs when the offender 16 is alone with the child. Exhibit D at 82. Abused children typically do not have sufficient "coping 17 mechanisms," making them feel helpless. Exhibit D at 83. Abused children typically delay 18 reporting because they feel conflicted. Exhibit D at 84. Reporting typically occurs at a time when 19 the child is least likely to be believed. Exhibit D at 85. Pressures increase on the reporting child 20 causing the child to retract. Exhibit D at 86. 21 22 Defense Case Shantayana J. was Maile's classmate in the sixth grade. RT at 320. Maile reported that

23 petitioner had touched her inappropriately. RT at 322. There was no indication that the touch was 24 sexual. RT at 322. Maile also reported that petitioner was trying to kidnap her because he had no 25 visitation rights. RT at 325. 26 Baptist Minister Rodger Wedan described petitioner's parents as members of his church.

27 RT at 329. Petitioner and Melanie F. attended church "regular[ly]" after they moved to Lake 28 County. RT at 329.
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Shannon Lynn Sample described petitioner as her neighbor's son. RT at 397. Sample

2 observed petitioner's interactions with Maile and did not think anything "unusual" about those 3 interactions. RT at 402. 4 Petitioner denied sexually touching Maile. RT at 403, 434. Petitioner described his

5 relationship with Melanie F. as "strenuous sometimes." RT at 404. Petitioner deserved to be 6 punished for his violence against Melanie. RT at 404. Petitioner had a conversation with Melanie 7 when Melanie telephoned petitioner. RT at 405. Melanie had just been subpoenaed and asked 8 petitioner what to do. RT at 406. Melanie complained that she did not want to drive up to the 9 courthouse. RT at 406. Melanie asked petitioner to plea bargain a disposition to keep her from 10 driving up. RT at 407. Petitioner asked Melanie to stop calling him. RT at 407. In response, 11 Melanie said, "`Watch what I'll do.'" RT at 407. 12 Sixteen-year-old Frank is petitioner's son. RT at 489. Frank never saw petitioner sitting

13 alone on the couch with Maile. RT at 493. 14 15 16 17 18 Petitioner asserts that the trial court denied him due process with respect to counts three 19 and four, which occurred in Lake County, for conducting trial in Santa Clara County in an alleged 20 violation of California Penal Code § 784.7. See Petn. at 22-29. The lack of a contemporaneous 21 objection to venue procedurally defaults the federal claim. 22 The California Court of Appeal found the claim defaulted from the lack of a 23 contemporaneous objection: 24 25 26 27 28 Section 784.7, subdivision (a), states in relevant part: "When more than one violation of Section . . . 288 . . . occurs in more than one jurisdictional territory, the jurisdiction of any of those offenses, and for any offenses properly joinable with that offense, is in any jurisdiction where at least one of the offenses occurred, subject to a hearing, pursuant to Section 954, within the jurisdiction of the proposed trial. At the Section 954 hearing, the prosecution shall present evidence in writing that all district attorneys in counties with jurisdiction of the offenses agree to the venue. Charged offenses from jurisdictions where there is no written agreement from the district attorney
Memo. of Ps & As in Support of Answer- No. C 07-04796 WHA

ARGUMENT I. PETITIONER'S DUE PROCESS CHALLENGE TO TRIAL COURT VENUE IS PROCEDURALLY DEFAULTED BY THE LACK OF A CONTEMPORANEOUS OBJECTION

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shall be returned to that jurisdiction." Section 954 states in relevant part: "An accusatory pleading may charge two or more different offenses connected together in the commission, . . . . The court in which a case is triable, in the interest of justice and for good cause shown, may, in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately." Defendant contends that the convictions on counts 3 and 4 must be reversed and dismissed because there is no evidence in the record that the prosecutor complied with the procedural requirements of section 784.7. "There is no record in the clerk's transcript of a Section 954 hearing, or any other hearing, proceeding or documents where the prosecutor in Santa Clara County presented evidence in writing that the district attorney of Lake County agreed to Santa Clara County as the venue for the Lake County charges." Section 784.7 was enacted by the Legislature as an exception to the general rule of territorial jurisdiction or venue in section 777, which states that, "except as otherwise provided by law the jurisdiction of every public offense is in any competent court within the jurisdictional territory of which it is committed." "Section 784.7 was enacted to protect repeat victims of child abuse or molestation and victims of domestic violence, offenses that are often inflicted on the same victim by the same perpetrator, from the need to make multiple court appearances to testify against the perpetrator and to reduce costs of separate trials." (Price v. Superior Court (2001) 25 Cal.4th 1046, 1055.) "The Legislature has made section 784.7 an exception to the general venue statute, and has thereby authorized the prosecution to elect [Santa Clara] County as an alternative venue for trial of the [Lake] County charges." (Id. at p. 1056.) When originally enacted, section 784.7 required that the defendant and the victim be "the same for all of the offenses." (Stats. 1998, ch. 302, § 1.) However, in 2002 the Legislature amended the section to eliminate that requirement. At the same time, the Legislature added the provision relating to the procedures for consolidating the charges. (See Stats. 2002, ch. 194, § 2; People v. Betts (2005) 34 Cal.4th 1039, 1058, fn. 14.) Defendant argues that because the Legislature "twice used the word 'shall' to direct these procedures, it is apparent that the Legislature intended 'shall' to be mandatory. It is also apparent that the Legislature intended jurisdiction of an offense in one county where that prosecutor did not agree in writing to trial of that offense in another county, to reside only in the county where the offense occurred." There is no question that venue was proper in Santa Clara County as long as the procedural requirements of section 784.7 were met. Because two of the four charged section 288 offenses occurred in Santa Clara County, the other two charged section 288 offenses that occurred in Lake County were properly joined and tried in Santa Clara County, "subject to a hearing, pursuant to Section 954" within Santa Clara County. ( § 784.7, subd. (a).) Although there is nothing in the record indicating that a section 954 hearing was held, there is also nothing in the record indicating that defendant ever objected to the lack of a writing from the district attorney of Lake County agreeing to venue in Santa Clara County. The commencement of a proceeding in an improper venue is a defect that can be remedied easily if the issue is timely raised, and a defendant's failure to raise a timely objection to venue will often reflect a strategic decision on the part of the defense. (People v. Simon (2001) 25 Cal.4th 1082, 1104, fn. 15 (Simon).) Defendant contends that, since section 784.7 was amended in 2002, after Simon was decided, he was not required to raise an objection below in order to raise the issue on appeal. If defendant had ever raised an objection prior to trial to the lack of a writing from the district attorney of Lake County agreeing to venue in Santa Clara County, trial on counts 3 and 4 would not have
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occurred in Santa Clara County unless such a writing was presented at a section 954 hearing. Our Supreme Court has stated that, "taking into account the nature and purpose of the venue safeguard and the substantial state interest in protecting the integrity of the process from improper 'sandbagging' by a defendant, we conclude that a defendant who fails to raise a timely objection to venue in a felony proceeding forfeits the right to object to venue-either at trial or on appeal. [Citations.]" (Simon, supra, 25 Cal.4th at p. 1104, fn. omitted.) Accordingly, we find in this case that defendant has forfeited his right to object to the trial in Santa Clara County of the offenses in counts 3 and 4 that occurred in Lake County.

6 See Petn. Exh. A at 7-9. 7 The state appellate court deemed petitioner's challenge to the trial court's venue to be

8 waived because he failed to raise the claim in the state trial court. Petn. Exh. A at 7-9. Accordingly, 9 the federal claim is procedurally defaulted because the state courts "clearly and expressly" found 10 the claim forfeited. Harris v. Reed, 489 U.S. 255, 260-63 (1989). The state procedural rule 11 requiring a contemporaneous objection to venue was clear and well established at the time of 12 petitioner's 2004 trial. See People v. Simon, 25 Cal.4th 1082, 1103-04 (Cal. 2001).1/ 13 Furthermore, petitioner has not demonstrated that this procedural bar is inadequate or that

14 it is inconsistently applied. See Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Bennett v. 15 Mueller, 322 F.3d 573, 585 (9th Cir. 2003). Moreover, petitioner has not met his burden of 16 demonstrating cause for, or prejudice resulting from, this procedural default, nor has petitioner 17 demonstrated that the failure to reach this issue will result in a fundamental miscarriage of justice. 18 See Schlup v. Delo, 513 U.S. 298, 327 (1995). 19 20 21 II. SUBSTANTIAL EVIDENCE SUPPORTS COUNT FOUR Petitioner asserts that count four was not supported by sufficient evidence. See Petn. at

22 27-29. The record demonstrates sufficient evidence. 23 24 1. Petitioner argues that the question of venue was a pure question of law, qualifying his 25 case for an exception to the state's waiver rule. See Petn. at 26. The Court of Appeal found "[t]here 26 is no question that venue was proper in Santa Clara County as long as the procedural requirements of section 784.7 were met." Petn. Exh. A at 8. A defense objection and request for a section 954 27 hearing would have established whether the respective district attorneys had in fact signed a written agreement concerning venue or whether the Santa Clara location was in fact burdensome to the 28 defense. The ultimate questions were entirely fact bound, requiring a defense objection to venue.
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The Due Process Clause "protects the accused against conviction except upon proof

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1 beyond a reasonable doubt of every fact necessary to constitute the crime for which he is charged." 2 In re Winship, 397 U.S. 358, 364 (1970). A state prisoner who alleges that the evidence in support 3 of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact 4 to find guilt beyond a reasonable doubt therefore states a constitutional claim, which if proven, 5 entitles him to federal habeas relief. Jackson v. Virginia, 443 U.S. 307, 321, 324 (1979). A federal 6 court reviewing collaterally a state court conviction does not determine whether the evidence 7 established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992), cert 8 denied, 510 U.S. 843 (1993). The federal court determines only whether, "after viewing the 9 evidence in the light most favorable to the prosecution, any rational trier of fact could have found 10 the essential elements of the crime beyond a reasonable doubt." Id.; (quoting Jackson, 443 U.S. at 11 319). Only if no rational trier of fact could have found proof beyond a reasonable doubt, may the 12 writ be granted. Jackson, 443 U.S. at 324. 13 On habeas review, a federal court evaluating the evidence under In re Winship and

14 Jackson v. Virginia should take into consideration all of the evidence presented at trial. LaMere v. 15 Slaughter, 458 F.3d 878, 882 (9th Cir. 2006). Circumstantial evidence and inferences drawn from 16 that evidence may be sufficient to sustain a conviction. Walters v. Maass, 45 F.3d 1355, 1358 (9th 17 Cir. 1995). If confronted by a record that supports conflicting inferences, a federal habeas court 18 "must presume­even if it does not affirmatively appear on the record­that the trier of fact resolved 19 such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 20 326. A jury's credibility determinations are therefore entitled to near-total deference. Bruce v. 21 Terhune, 376 F.3d 950, 957 (9th Cir. 2004). 22 Here, count four charged a violation of Cal. Penal Code § 288(a), which provides: "Any

23 person who willfully and lewdly commits any lewd or lascivious act, including any of the acts 24 constituting other crimes provided for in Part 1, upon or with the body, or any part or member 25 thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or 26 gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and 27 shall be punished by imprisonment in the state prison for three, six, or eight years." 28 The prosecutor informed the jury that count four related to the penis-to-mouth contact that
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1 occurred in Kelseyville while Maile was camping inside a tent pitched on the balcony. RT at 529. 2 Maile testified that while she was in the fifth grade, the family moved to Kelseyville. RT at 88. 3 Once, when the children were "camping outside on the balcony," Maile was awakened when she felt 4 "something touch her mouth" that Maile swatted away with her hand. RT at 94. Maile believed it 5 "was [petitioner's] penis." RT at 94. Maile remembered that petitioner put his penis up against her 6 mouth while Maile was inside the tent. RT at 150. Maile reported the incident to police. RT at 276. 7 The jury heard Maile's recorded statement reporting that petitioner put his penis to her mouth. See 8 CT at 169 ("He tried to put his dinky in my mouth."). 9 The California Court of Appeal considered the trial record and determined that the record

10 supported count four, finding as follow: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The evidence presented at trial was that defendant and his family moved in with defendant's parents in Lake County in December 2000, and that the family, except for
Memo. of Ps & As in Support of Answer- No. C 07-04796 WHA

The second amended information alleged in count 4 that defendant committed a lewd or lascivious act on a child under 14, in violation of section 288, subdivision (a), between December 1, 2000 and June 30, 2001, in Lake County. The prosecutor informed the jury that count 4 was based on Ma's testimony that defendant "put his penis against her mouth." Defendant contends that, taken as a whole, Ma's testimony is insufficient to establish beyond a reasonable doubt that the object that touched Ma's lips and woke her was defendant's penis, or that it occurred in Lake County, or that it occurred between December 1, 2000 and June 30, 2001. "Given [Ma's] description that the object that touched her lips felt like a fly that tickled, and she 'swished' it off with her hand, it is in fact extremely unlikely that a penis touched her lips." "The location and timing of that incident were so confused that a jury could not find beyond a reasonable doubt that any such incident occurred in Kelseyville, or that it occurred in the time-frame charged." In determining whether the evidence is sufficient to support a conviction, we "review 'the whole record in the light most favorable to the judgment' and decide 'whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' (People v. Johnson [(1980)] 26 Cal.3d 557, 578, 162 Cal. Rptr. 431.) Under this standard, the court does not ' "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." [Citation.] Instead, the relevant question 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.' (Jackson v. Virginia (1979) 443 U.S. 307, 318-319, 61 L. Ed. 2d 560.)" (People v. Hatch (2000) 22 Cal.4th 260, 272.) "The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ' "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" ' [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

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defendant, moved back to San Jose in June 2001. One night, while living in Lake County, Ma was sleeping in a tent on defendant's parents' deck with defendant and her brother when Ma felt what she "thought" was defendant's penis touching her mouth. She swatted it away as though it were a fly, moved away from defendant, and pretended to go back to sleep. Defendant then touched her vagina with his penis. During her interview with Detective Lucero, Ma gave the details of this incident in response to the detective's question whether defendant did anything else to her in Lake County. The fact that, after giving the details of this incident, Ma told the detective that the incident occurred "in the bedroom," does not mean that Ma said that the offense occurred in San Jose rather than Lake County. The transcript of Detective Lucero's interview of M. shows the following:

7 "LUCERO: . . . Where was the second time at? 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 "[Ma]: They were the kind28
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"[Ma]: It, it was me and my brother and him were, were camping. We had, we set out a little camp in the backyard to make it look like we were camping. "LUCERO: Where were you living at? "[Ma]: The same place. "LUCERO: Kelseyville? [Slight pause] Where was your mom at? "[Ma]: Inside, sleeping, because she didn't want to go out. "LUCERO: Okay. "[Ma]: And camp. "LUCERO: Who was camping outside? "[Ma]: Just me, my brother, and him. But my brother was already asleep. "LUCERO: Oh. And what happened? "[Ma]: The same thing. "LUCERO: He managed to take your clothes off? "[Ma]: Uh, pulled them up. "LUCERO: What were you wearing? "[Ma]: My pajamas. "LUCERO: What kinda pajamas were they? "[Ma]: I can't remember, but I know I wear pajamas. "LUCERO: But were they the kind where he could pull 'em, up and your underwears . . .

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"LUCERO: Would be exposed? "[Ma]: No, my, my underwears, he pulled them down (inaudible) like regular clothes. "LUCERO: Uh-huh. And after he pulled 'em down, what did he do? "[Ma]: Tried to pull down my underwear; he pulled 'em down a little bit. "LUCERO: And then what did he do? "[Ma]: Tried to take off his, and put his dinky in my cookie. "LUCERO: And did he? "[Ma]: Yes. "LUCERO: And what did you feel? "[Ma]: Same thing. I was scared. "LUCERO: Did it hurt? "[Ma]: A little bit. "LUCERO: Did you ever bleed? "[Ma]: No. "LUCERO: No? On the second time, in the camp, in the tent, did uh, did you feel that same nasty stuff again? Did Frank ever do anything else to you in Kelseyville? "[Ma]: Yeah.

17 "LUCERO: What else did he do? 18 "[Ma]: He tried to put his dinky in my mouth. 19 "LUCERO: And what happened? 20 "[Ma]: I moved away. 21 "LUCERO: Did he manage to put it in your mouth? 22 "[Ma]: No. 23 "LUCERO: Did it get near your mouth? Where did it touch you at? 24 "[Ma]: Right here. 25 "LUCERO: How many times did he do that, [Ma]? 26 "[Ma]: Just once, that one time. 27 "LUCERO: One. Did he say anything to you? 28
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"[Ma]: No. "LUCERO: Did you say anything to him? "[Ma]: No. I pretended to be asleep. "LUCERO: Oh, okay. Where were you at when he did that? "[Ma]: In the bedroom. "LUCERO: Bedroom? Where was your mom? "[Ma]: I don't know where she was. "LUCERO: And your brother? "[Ma]: I don't remember. "LUCERO: Did his daughter live[] there also? "[Ma]: No, he"LUCERO: No? "[Ma]: She lived with her mom. "LUCERO: Lived with her mom? Had she, has her daugh--, his daughter ever talked to you about anything like this? "[Ma]: No."

16 17 18 We find, in light of the whole record, including Ma's testimony at trial and her recorded interview by Detective Lucero, that there is substantial evidence to support the jury's finding that defendant touched Ma's mouth with his penis in Lake County between December 1, 2000 and June 30, 2001.

19 See Petn. Exh. A at 9-14; see also CT 167-70 (transcript of victim's taped statement). 20 The record shows that there was sufficient evidence from which a rational jury could have

21 concluded beyond a reasonable doubt that petitioner lewdly touched Maile while Maile was camping 22 inside a tent in Kelseyville, California. Thus, the state courts' denial of the claim was not contrary 23 to, or an unreasonably application of Jackson v. Virginia, 443 U.S. 307, nor was it objectively 24 unreasonable in light of the totality of the evidence presented. 25 26 27 28 Petitioner asserts that trial counsel was ineffective for failing to seek release of phone
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III. PETITIONER DOES NOT ESTABLISH INEFFECTIVE ASSISTANCE OF COUNSEL

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1 records "crucial to the defense's attempt to obtain a new trial for Rodriguez." See Petn. at 29. 2 Petitioner argues "[t]he phone records constituted direct objective evidence showing that Melanie 3 was lying under oath, whereas the remaining impeachment referred to by the trial court was of the 4 nonobjective `he said, she said,' nature." Id. at 30. Petitioner also argues that "new trial counsel" 5 was also ineffective for failing to "articulate the fact the evidence was not cumulative because it 6 would have supplied an objective basis upon which to disbelieve Melanie Fountain, a basis that was 7 not simply of `he said, she said.' This also constituted deficient performance that prejudiced 8 Rodriguez." See Petn. at 16. 9 Clearly established federal law permits habeas relief for ineffective assistance of counsel

10 only where counsel's performance was deficient and the petitioner was prejudiced by that 11 deficiency. See Strickland v. Washington, 466 U.S. 668, 693 (1984). To establish deficiency, a 12 petitioner must point to the acts or omissions that rendered the representation objectively 13 unreasonable. Strickland v. Washington, 466 U.S. at 690. Then, ineffective assistance is

14 demonstrated only where, but for the deficient performance, there is a reasonable probability that 15 the result of the proceedings would have been different. Id. at 694. 16 Under AEDPA, the question is whether the state court reasonably applied Strickland,

17 which is a "doubly deferential" standard of review. Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (per 18 curiam). 19 20 A. Factual Background Following jury trial, petitioner retained new counsel, Richard J. Petersen. See CT at 281.2/

21 New counsel petitioned the trial court to release sealed phone records for Melanie F. that had been 22 delivered to the trial court pursuant to a defense subpena. CT at 319-24. Counsel sought in camera 23 review of those records for eventual disclosure to the defense. Id. Counsel declared that "SBC 24 Pacific Bell Telephone Company [records] will prove that the victim's mother, Melanie [F.], was 25 calling the defendant repeatedly up to the day the incident was reported to police. Additionally, she 26 27 2. Current federal habeas counsel is the same retained attorney who substituted into the case 28 following the jury verdict.
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1 had knowledge the defendant was getting remarried to another woman. Melanie [F.] was desperate 2 in her attempts to maintain contact and a relationship with the defendant." CT at 322. 3 On July 20, 2004, new defense counsel asked for an in camera hearing to demonstrate

4 cause and asserted that the trial court possessed sealed "subscriber information for an Ann [F.] at 5 a particular number and a subscriber from New Horizon Manufacture Homes." RT at 615. Defense 6 counsel asked the court to review the sealed records, in camera, so that the "Court can easily see 7 what I am asking for, it is relevant. And if it's not there, then of course, it would be no need to 8 divulge the records." RT at 615. The prosecutor agreed with the proposal that the trial court review 9 the sealed phone records to determine relevance. RT at 616. Thereafter, the trial court excluded the 10 prosecutor and proceeded in camera with new defense counsel. RT at 616. 11 When the trial court returned to open court, the trial court invited new defense counsel to

12 sum up his showing on relevance. RT at 623.3/ Defense counsel summarized, as follows: 13 14 15 16 17 18 19 20 21 22 THE COURT: Well, that's sort of what I said. 23 MR. PETERSON: Yeah. 24 [THE PROSECUTOR]: I was going to say, it's-- 25 26 3. Respondent has never received nor reviewed the phone records or sealed transcript of in camera proceedings. Accordingly, respondent cannot provide this Court with a transcript of those 27 in camera proceedings. However, for purposes of the direct appeal, current habeas counsel received 28 a transcript of the trial court's in camera proceedings.
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MR. PETERSON: Yes, your Honor. The defendant is at his fiancee's home of (707) 528-4059. During that period of time, he received a number of hang-up calls. And he, from the past, believes that it was probably his ex-wife separated from at that time, that was increasingly getting jealous and increasingly getting vindictive because that's what she has done in the past. Calls where people would not answer but would hang on for a while. He believes that the two numbers that she would have used to do such hang-up calls are (408) 448-1798, which is a home number for Ann [F.]. And where she worked, "she" Melanie, worked at area code (408) 977-9190 sequentially to 9199, that's a New Horizon Manufacture Homes. So I was asking for the Court to review the documents to see if, in fact, there were any numbers from that number to those numbers or from those numbers to that number. ... [THE PROSECUTOR]: How would those be relevant at this stage, given that there's no one to impeach or cross-examine regarding this information?

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THE COURT: I guess the point is, do we need to know what is in those records in order to determine the issue of whether or not the failure to get those records and use those records is, you know, essentially ineffectiveness of counsel? MR. PETERSON: I don't know, your Honor, if she was asked, because he, the defense lawyer, knew of this, and that's why he asked for the records but got the wrong set of records. So I don't know if he ever asked in direct examination, "Did you make such calls?" If he asked and she denied. . . . ME PETERSON: It would have been cross. I had it backwards. But if he had asked that and she denied it, of course, it would be substantial impeachment. And if she admitted it, then he would have been able to say, "Why were you calling? What was the purpose of this?" And then it would have shown more fully that there was a build-up of, at least, aggravation on her part. THE COURT: I have no recollection that--there certainly, to my recollection, wasn't any extensive cross-examination, so I don't think that she-- [THE PROSECUTOR]: I don't recall it at all, your Honor. But the bigger picture, and I think this issue was actually addressed in Mr. Peterson's moving papers and my response is, she was impeached on so many levels and in so many ways, and I flat out argued that they should throw out any testimony she provided. So I don't know how adding one more piece of impeachment is making a bad person, who had demonstrated to be less than credible, a determining factor in this case. THE COURT: And I think that the argument that's made is that this evidence would be circumstantial evidence of a motive to fabricate. But as I indicated to him, I think that argument was, in fact, made and made rather well by [trial counsel]. So I'm going to deny the request for the records.

16 RT at 623-25. 17 B. 18 19 The California Court Of Appeal Findings Concerning The Trial Court's Refusal To Disclose The Phone Records The California Court of Appeal rejected petitioner's related claim that the trial court erred

20 by refusing to unseal and disclose to new defense counsel those phone records reviewed in camera. 21 22 23 24 25 26 27 28
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As stated above, prior to trial defense counsel subpoenaed telephone records for phone numbers used by M.F. The court ordered the records released to counsel. While defendant's new trial motion was pending, new defense counsel subpoenaed additional telephone records. New counsel informed the court that prior counsel "subpoenaed phone records but for the wrong dates. So the phone records had no relevance for anything." Based on defendant's claim that he received a number of hang-up calls late at night and early in the morning in the month prior to July 21, 2001, that this activity was consistent with M.F.'s prior conduct, and that M.F. knew that defendant was remarrying on July 22, 2001, new counsel requested release of the additional phone records to see if M.F. made the hang-up calls. The prosecutor argued that M.F. was impeached by defense counsel during the trial in many other ways, and that one more piece of impeachment evidence would not be a determining factor in the case. The court denied the request to release the records, finding that the records would not be impeachment evidence unless M.F. denied making the calls, and that prior defense counsel had already extensively impeached M.F.

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In later denying the motion for new trial the court stated in part: "With regard to, essentially, a lot of the arguments that are made by the defense deal with the jealousy of [M.F.], the fulcrum date regarding the allegations, and the allegations that [M.F.] was controlling, calling the shots, as you mentioned. And they sort of, in my view, can be sort of lumped together in the sense that they are attacking [M.F.'s] character and credibility. [¶] I would have to say that the character and credibility of [M.F.] was destroyed as effectively as I have ever seen any witness'[s] credibility and character destroyed in my entire career. [¶] I doubt that having additional information, arguing that in addition to all these other things that you've heard, keep in mind the significance of the date of the allegations, that would have, in any way - I don't think there's any showing that would have caused the jury to reach a different result." Defendant contends that because no evidence was presented by defense counsel at trial that M.F. knew that defendant was to be remarried the day after she made the child molest report, and because the phone records were a "qualitatively different" type of impeachment evidence, the trial court erred in denying his request to release the phone records. He argues, without citation of authority, that the matter should be returned to the trial court for reconsideration of the new trial motion after release of the subpoenaed phone records. "The defendant generally is entitled to discovery of information that will assist in his defense or be useful for impeachment or cross-examination of adverse witnesses. [Citation.] A motion for discovery must describe the information sought with some specificity and provide a plausible justification for disclosure. [Citation.] The court's ruling on a discovery motion is subject to review for abuse of discretion. [Citation.] "Under the due process clause of the federal Constitution, the government has the obligation to disclose to the defendant evidence in its possession that is favorable to the accused and material to the issues of guilt or punishment. [Citations.] Evidence is material if a reasonable probability exists that a different result would have occurred in the proceeding had the evidence been disclosed to the defense. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. [Citations.]" (People v. Jenkins (2000) 22 Cal.4th 900, 953-954 (Jenkins).) The trial court found that the phone records defendant sought were not material to the defense, as the evidence was cumulative and it was not such as to render a different result probable on retrial of the cause. (Jenkins, supra, 22 Cal.4th at p. 954.; cf., § 1181, subd. 8.) The requested evidence was cumulative to evidence that was presented at trial. The evidence at trial showed that M.F. repeatedly allowed defendant and Ma to be alone together after Ma first reported defendant's conduct to M.F. The evidence further showed that after July 21, 2002, when M.F. made the police report, she did not cooperate with the police. She did not bring Ma in for requested interviews with Detective Lucero, so after several months the detective went to Ma's school to interview Ma in M.F.'s absence. M.F. also failed to bring Ma in for two scheduled physical examinations prior to the examination that occurred on December 2, 2002. Defense counsel also argued to the jury that M.F.'s conduct showed that the reported lewd conduct did not occur. The trial court also found that the requested evidence was not such as to render a different result probable on retrial. We agree with the trial court. In addition to Ma's trial testimony and her taped interview with Detective Lucero detailing the specifics of the two separate incidents of lewd conduct, the jury heard testimony from both G. and S. stating that Ma told them prior to M.F.'s police report that defendant had touched her. Given this evidence at trial supporting the conviction apart from M.F.'s testimony, defense counsel's extensive cross-examination of M.F., and counsel's argument to the jury regarding M.F.'s conduct, we find that the trial court acted within its discretion in determining that
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1 2

defendant had not shown sufficient cause to warrant release of the subpoenaed phone records. Petn. Exh. A at 14-16.

3 C. 4 5 If decipherable, at best, the phone records would show telephone calls made from 6 particular phone lines to a telephone petitioner had access to prior to Maile reporting the sexual 7 abuse to police. The phone records would certainly not disclose the substance of conversations but 8 only the number of calls and possibly their duration. Petitioner suggested that it was Melanie F. who 9 made those calls to himself, but without showing that Melanie F. used those various phone lines 10 exclusively, the phone records would be irrelevant. Thus, counsels' various inactions have not been 11 shown to be prejudicial. Strickland v. Washington, 466 U.S. at 691. 12 At trial, petitioner testified that Melanie F. telephoned and asked him what she should do 13 with the subpena. RT at 405-06. Petitioner said that Melanie complained that she did not want to 14 drive to court and asked petitioner to dispose of the criminal case to keep from inconveniencing her 15 life. RT at 406-07. Petitioner told Melanie to stop calling him. RT at 407. According to petitioner, 16 Melanie answered, "`Watch what I'll do.'" RT at 407. 17 Melanie F. was impeached with convictions for misdemeanor petty theft, misdemeanor 18 embezzlement, and misdemeanor petty theft with a prior. See Respondent's Exhibit D at 8-9. 19 Melanie F. testified that she did not know why she did not report the sexual abuse when Maile first 20 alerted her, or why she did not kick petitioner out of the house. Exhibit D at 17. Melanie F. testified 21 that she did not pursue the issue of possible sexual abuse until Maile complained of continued abuse 22 in July 2002. Exhibit D at 25. On cross-examination, trial counsel explored the reasons why four 23 months passed before investigating police officers had contact with Maile following Melanie F.'s 24 initial telephone report. RT at 201-08. On cross-examination, Melanie F. admitted that while the 25 family lived in Kelseyville, there were times when Maile and petitioner were home alone. RT at 26 218-19. Melanie F. admitted refusing police requests to record a phone conversation with petitioner 27 to obtain incriminating statements. RT at 236. Melanie F. admitted not telling investigating 28
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Petitioner Cannot Demonstrate That Impeachment From The Phone Records Would Have Made A Favorable Difference At Trial

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1 officers that Maile had made earlier reports of abuse that Melanie F. ignored. RT at 249. Melanie 2 F. denied arguing with petitioner about showing up to court and denied threatening him with the 3 statement, "`Watch what I'll do.'" RT at 249-50. 4 The record indeed demonstrates that Melanie F. was sufficiently impeached at trial.

5 Defense counsel argued to the jury that Melanie F.'s acts were inconsistent with a truly concerned 6 mother. RT at 576. Accordingly, defense counsel argued that there was no sexual abuse because 7 the false reports were orchestrated by Melanie F. RT at 562-83. In response, the prosecutor invited 8 the jury to "throw [Melanie F.'s] testimony out." RT at 594. The prosecutor argued that Melanie 9 F. was "a woman who can't take care of herself, who doesn't do what she needs to do, who's had 10 a tough time." RT at 595. The prosecutor argued that Maile remained credible, as did the other 11 children who corroborated her reports of sexual abuse. RT at 595-96. 12 As the trial court and California Court of Appeal found, further impeachment of Melanie

13 F. with the phone records would have had no impact at trial. Accordingly, petitioner does not 14 demonstrate incompetent representation by trial counsel or by new counsel. Petitioner does not 15 demonstrate a reasonable probability of a different result had the phone records been available for 16 impeachment at trial. Strickland, 466 U.S. at 691. 17 The state courts' decision is not contrary to, nor does it involve an unreasonable

18 application of Strickland. 19 20 CONCLUSION Accordingly, respondent respectfully requests that the Court deny the petition for writ of

21 habeas corpus. 22 23 24 25 26 27 28
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RAC:eaw 40198624.wpd

Dated: December 26, 2007 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General JULIET B. HALEY Deputy Attorney General

/s/ René A. Chacón RENÉ A. CHACÓN Supervising Deputy Attorney General Attorneys for Respondent

SF2007402694

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1 2 3 INTRODUCTION 4 STATEMENT OF THE CASE 5 LEGAL STANDARDS 6 STATEMENT OF FACTS 7

TABLE OF CONTENTS Page 1 2 2 3 3 5

Prosecutor's Case In Chief

8 ARGUMENT 9 10 11 12 13 A. 14 B. 15 16 17 CONCLUSION 18 19 20 21 22 23 24 25 26 27 28
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I.

PETITIONER'S DUE PROCESS CHALLENGE TO TRIAL COURT VENUE IS PROCEDURALLY DEFAULTED BY THE LACK OF A CONTEMPORANEOUS OBJECTION SUBSTANTIAL EVIDENCE SUPPORTS COUNT FOUR PETITIONER DOES NOT ASSISTANCE OF COUNSEL Factual Background The California Court Of Appeal Findings Concerning The Trial Court's Refusal To Disclose The Phone Records Petitioner Cannot Demonstrate That Impeachment From The Phone Records Would Have Made A Favorable Difference At Trial ESTABLISH INEFFECTIVE

5 7 13 13 15 17 18

II. III.

C.

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1 2 3 Cases 4 Bennett v. Mueller 322 F.3d 573 (9th Cir. 2003) 5 Bruce v. Terhune 6 376 F.3d 950 (9th Cir. 2004)

TABLE OF AUTHORITIES Page

7 8 2 7 7 8 8, 12 8 2 8 7 7 13, 17, 18 8 2, 3 13

7 Edwards v. Lamarque 476 F.3d 1121 (9th Cir. 2007) (en banc) 8 Gray v. Netherland 9 518 U.S. 152 (1996) 10 Harris v. Reed 489 U.S. 255 (1989) 11 In re Winship, 12 397 U.S. 358 (1970) 13 Jackson v. Virginia 443 U.S. 307 (1979) 14 LaMere v. Slaughter 15 458 F.3d 878 (9th Cir. 2006) 16 Lockyer v. Andrade 538 U.S. 63 (2003) 17 Payne v. Borg 18 982 F.2d 335 (9th Cir. 1992) 19 People v. Simon 25 Cal.4th 1082 (Cal. 2001) 20 Schlup v. Delo 21 513 U.S. 298 (1995) 22 Strickland v. Washington 466 U.S. 668 (1984) 23 Walters v. Maass 24 45 F.3d 1355 (9th Cir. 1995) 25 Woodford v. Visciotti 537 U.S. 19 (2002) (per curiam) 26 Yarborough v. Gentry 27 540 U.S. 1 (2003) (per curiam) 28
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TABLE OF AUTHORITIES (continued) 1 2 3 Statutes 4 28 U.S.C. § 2254 5 § 2254(d)(1) 6 California Penal Code § 288(a) 7 § 667.5(b) § 784.7 8 § 954 § 1203.066(a)(8) 9 Other Authorities 10 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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