(HC) Soria v. People of California ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THEODORE SORIA, No. 2:18-cv-1218 CKD P 12 Petitioner, 13 v. ORDER 14 KATHLEEN ALLISON,1 15 Respondent. 16 17 Petitioner is proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 18 2254. The parties have consented to this court’s jurisdiction pursuant to 28 U.S.C. § 636(c) and 19 Local Rule 302. 20 Following a Sacramento County jury trial concluding December 20, 2011, petitioner was 21 found guilty of rape of an unconscious woman and rape of an intoxicated woman. ECF No. 12- 22 16 at 122. Petitioner was later sentenced to a term of 11 years imprisonment. Id. 23 Petitioner raises 3 claims. For the reasons which follow, the petition for a writ of habeas 24 corpus will be denied. 25 ///// 26 27 1 California Department of Corrections and Rehabilitation (CDCR) Secretary Kathleen Allison is hereby substituted as the respondent in this action pursuant to Rule 2(a) of the Rules Governing 28 Section 2254 Cases. It appears that petitioner is on parole from a sentence he served in CDCR. 1 I. Background 2 On direct appeal, the California Court of Appeal summarized the evidence presented at 3 trial as follows: 4 Prosecution's Case–in–Chief 5 On Saturday, November 28, 2009, around 8:00 or 9:00 p.m., the 44– year–old defendant was home, drinking beer, and playing video 6 games, when his son Theo brought home three friends and a large bottle of vodka. The group of four—all of whom were about 20 years 7 old—consisted of defendant's son, the son's new girlfriend, Karolyn Hawley (Karolyn), the son's friend, Heriberto Corral (Beto), and 8 Beto's girlfriend, J.W., who is the victim. They planned to get drunk. They started drinking the vodka with juice or soda in the son's 9 bedroom. Defendant stayed in the living room, but someone brought him some vodka. The four young people mainly stayed in the son's 10 bedroom but came out on occasion. For example, the victim came out for ice and Karolyn smoked marijuana with defendant in the 11 living room. The victim did not smoke any marijuana. 12 The victim, who liked to get drunk and had previously blacked out from binge-drinking, drank four or five drinks, got drunk and dizzy, 13 and vomited in the bathroom. Beto and Karolyn helped the victim to the bedroom of defendant's daughter, Sophia, who had come home 14 earlier but left to sleep at a friend's house. The victim vomited in Sophia's bedroom, perhaps in a garbage can. Karolyn testified that 15 she asked defendant for a “ratty shirt that he didn't really care about that she could sleep in.” The reason she asked for the shirt was 16 because she thought it would be uncomfortable for the victim to sleep in her clothes, but she told defendant she wanted the shirt for the 17 victim because “she was sick.” According to Karolyn, defendant went to his room, obtained a black shirt, and gave it to her. Karolyn 18 brought the shirt to the victim in Sophia's room, said to change into it, and left the room. The victim fell asleep or passed out on top of 19 the bedcovers, fully clothed. Karolyn and defendant's son fell asleep around midnight in the son's room. Beto stayed up playing a video 20 game with defendant. 21 Around 2:30 or 3:00 a.m., the victim awoke. Her vagina was sore and wet. She was under the bedcovers, wearing only her underwear. 22 Her clothes were on the floor by the bed, as were defendant's slippers.2 The victim did not see any other article of clothing that 23 belonged to defendant in the room. The victim found Beto asleep on the living room couch. She woke him and asked if they had “messed 24 around.” He said no. The victim became scared and said she thought defendant did something to her. The victim and Beto woke up 25 Karolyn and defendant's son, who said his father would not do anything sexual like that. The four talked and eventually fell asleep 26 27 2 Defendant did not allow people to wear shoes in the house. He kept his slippers by the front door for anyone to wear, but the victim had never seen her friends wear the slippers, and Karolyn 28 recalled seeing defendant wearing the slippers earlier in the evening. 1 in the son's room. They awoke around 11:00 a.m. and went out to eat. The victim went home and showered. 2 Later, the victim returned to defendant's home to meet up with Beto. 3 She saw defendant but did not interact with him. She saw Sophia, who was holding defendant's shirt in her hand and asked the victim 4 what happened. Sophia noticed hickeys on the victim's neck. Beto said he was not responsible for the hickeys. Sophia revealed she had 5 once been raped when drunk and that the victim should tell someone. At trial, the victim for the first time stated that Sophia said her father 6 had “hit on” her friends in the past. 7 After Sophia and the victim spoke, Sophia asked defendant, in the victim's presence, why his shirt was in her bedroom. The victim 8 testified defendant replied he brought the shirt to the victim because she was cold. The victim had no recollection of him bringing her a 9 shirt. 10 Later that night, November 29, 2009, the victim told her mother what happened after Beto said he would tell unless the victim told. The 11 three went to the hospital, where they spoke to a police officer who took them to UC Davis Medical Center, where the victim underwent 12 a sexual assault examination. 13 The victim testified that after the night in question, she continued to visit defendant's home until she and Beto broke up in February 2010. 14 Defendant did not act any differently toward her during these visits. 15 Karolyn, who did not believe defendant would ever take advantage of a drunk woman for nonconsensual sex, testified that the defendant 16 did not treat the victim any differently when the victim visited the house after the night in question, and the victim did not seem 17 uncomfortable around defendant during that time. Karolyn, who had been 19 years old at the time, testified that on that night at defendant's 18 home, while she and defendant were smoking marijuana in the living room, she leaned over, exposing her breasts, and defendant said, 19 “nice rack,” which she took as a compliment. Defendant had told both the victim and Karolyn that they were pretty. Karolyn testified 20 she broke up with defendant's son in February 2010. She and defendant remained close platonic friends, going to the gym or lunch 21 together or talking on the phone, but they did not talk about the case. Karolyn was not friends with the victim. 22 In April 2010, the victim, in the presence of a police detective, made 23 a pretext phone call to defendant, which was tape-recorded and played for the jury. Defendant greeted her pleasantly, asked how she 24 was, and said he had not seen her in awhile. She said she was “pretty good” and wanted to ask him “[a]bout that night I was over at your 25 house, and it was Theo, me, Beto [] and Karolyn, and we were drinking with—in Theo's room. I had somebody rape me, but I didn't 26 really know who and I—I mean, I—your shirt and your slippers were in Sophia's room, so I thought—and I'm pretty sure that you had sex 27 with me and I want to know why.” The following ensued: 28 ///// 1 “[Defendant]: Real—really? 2 “[Victim]: Yeah. 3 “[Defendant]: Well, here let me sit down 'cause this is the first I've heard of this. Hold on. Let me go in the other room. Hold on. 4 [Footnote omitted.] Okay. I'm in shock right now. So, anyways, so what happened? 5 “[Victim]: Why—I—why did you have sex with me while I was 6 passed out? 7 “[Defendant]: You know, I don't remember that—that happening. I don't remember that at all. And I—this is the first I've heard of this, 8 and it's—I don't know what to say. I'm shocked and sorry to hear that. 9 “[Victim]: But your shirt was on the floor, on the bedroom floor by 10 Sophia's bed. 11 “[Defendant]: Is that the shirt that Sophia gave me? Because I remember Karolyn giving me—coming up to me and asking me for 12 a shirt, and I gave her a—a—a black one. That's all I remember. 13 “[Victim]: Oh, well, that's the one that I—that was on the floor as well as your slippers. 14 “[Defendant]: And I don't know about my slippers and stuff. I don't 15 know what happened with that. 16 “[Victim]: I don't know. I woke up and they were by the bed. 17 “[Defendant]: I don't remember any of that. I—I—I—all I remember is I was passed out in the living room, and Beto woke me 18 up and he told me to get out of there, and so I went to my room and that's all I remember. 19 “[Victim]: Well, I know someone had taken my clothes off because 20 when I woke up, I didn't have them on, and when I fell asleep, they were on. 21 “[Defendant]: Hum. 22 “[Victim]: So I don't— 23 “[Defendant]: I don't know what to say other than I'm sorry. I don't 24 remember any of that. 25 “[Victim]: I don't really remember. That's why I was calling to ask. 26 “[Defendant]: I don't remember either. I just feel bad now. I mean, I've always respected you and I—I always thought you were 27 attractive, but I don't remember ever carrying out anything like that. 28 ///// 1 “[Victim]: Well, I know I had sex, and I know it was you. It had to be. 2 “[Defendant]: I don't remember. I—I would have to trust your word 3 on that and say sorry 'cause I don't remember anything like that. I'm sorry, [J.]. And I—I really don't remember anything like that. I 4 just—I just apologize. If I did that, then I'm sorry.” 5 The conversation continued in the same vein. The victim asked if defendant had used protection, and he said he did not remember any 6 of that night, other than waking up around 5:00 or 6:00 a.m., when “you guys” left and later came back. The victim said Beto said it 7 happened. Defendant expressed surprise and said Beto never mentioned a word to him. 8 The victim said she thought defendant was lying. Defendant said he 9 was sorry she felt that way. He woke up with all his clothes on in his own bed and “I don't know. Honestly I don't know. I just—I—I—if 10 this all happened like you said, then I—I totally regret my actions, and I apologize whole-heartedly. I don't remember any of that.” The 11 conversation continued: 12 “[Victim]: Do you think I'm attractive? 13 “[Defendant]: I always have, yeah. I just wish I was more in shape and had money and stuff. I think probably I would think 14 (unintelligible) might be a little bit different if I was to ever ask you out. But you were with Beto, so I never even thought of it. [¶] But, 15 yeah, I've always thought you were attractive. Still do. I just—I don't remember any—doing anything stupid like that.” 16 “[Victim]: Well, why would you do that if I was passed out? 17 “[Defendant]: “I don't know. I can't explain my actions if that 18 happened that night like that. I don't remember. I don't remember at all. I'm sorry. I just remember being hella drunk 'cause I remember 19 I was taking hits off that bottle besides drinking that beer. [¶] In fact, the last thing I remember is Beto waking me up when I was passed 20 out on the living room floor still playing the video game. [¶] . . . [¶] I remember all of us drinking and stuff. And I remember Karolyn. I 21 do remember Karolyn trying to make you smoke out of the bong. I remember that. And I remember saying, don't—you know, don't do 22 it if you don't want to. [¶] Let's see what else I remember that night. I remember playing video games. I remember all you guys went 23 inside Theodore's room, and that's about all I remember.” 24 The victim asked if defendant was sorry. He said, “of course I am. I don't want it like that. I've always liked you and stuff, and, you know, 25 I don't want it to be like that. I wish I would have talked to you about this sooner. I didn't know. I swear.” The victim asked about 26 protection. He said he did not remember, but “if you're worried about anything,” he was tested in January when he got into “that 27 other relationship” and was “totally clean.” 28 ///// 1 After more of the same equivocal apologies “if it happened,” defendant asked why the victim was calling now. She said she had 2 a nightmare about it. She asked: 3 “[Victim]: Why did you do this? 4 “[Defendant]: I honestly don't know. I don't know. I—the only thing, like I said, is I've always thought you were pretty and 5 attractive, and I've always liked you as a person. I've always respected you. I think you got your head on your shoulders, and I 6 think Beto's stupid. You know? That's what I thought—always thought about you. I never thought about anything else like that.” 7 The victim said, “I need you to say you're sorry.” Defendant said, “I 8 am. I'm sorry. I'm sorry. I just don't remember any of that. . . .” The victim said she thought he was lying. Defendant said he was sorry 9 she felt that way. The victim finally ended the call. 10 The victim testified she did not really remember defendant being on top of her, as she stated during the pretext call at the detective's 11 prompting. She was not attracted to defendant and felt “grossed out” when he said he was attracted to her. 12 A nurse testified she performed the sexual assault examination on the 13 victim. The victim said she had not had intercourse within the previous five days. The nurse did not notice any bleeding, trauma, 14 or other physical injury, but sexual assault victims commonly present without injury or trauma. Even unconscious, the body can lubricate 15 and have a sexual response. The examination revealed nothing inconsistent with consensual sexual intercourse. The nurse did not 16 observe any sperm on genital swabs under the microscope but forwarded them for DNA testing. However, the nurse did observe 17 an approximately two-centimeter hickey on the victim's neck. 18 A criminalist testified she detected sperm in the vaginal, cervical, and anal swabs taken from the victim. The vaginal and cervical swabs 19 had high concentrations of sperm, while the anal swab had a low concentration, which led the criminalist to opine that the sperm from 20 the anal swab was probably drainage from the vagina rather than evidence of sodomy. 21 Ryan Nickel, a criminalist with the Sacramento County District 22 Attorney's office, testified as a DNA expert. He analyzed a vaginal swab [footnote omitted] first separating a sperm fraction from the 23 victim's epithelial cells, which are the cells lining body cavities. Taking a small portion of the sperm fraction for DNA testing, Nickel 24 obtained a DNA profile from it and compared it to buccal reference samples obtained from defendant, defendant's son, and Beto. Nickel 25 was able to exclude defendant's son and Beto as the major profile contributor of the sperm fraction. 26 Nickel compared the sperm fraction with defendant's buccal swab 27 sample at the standard 15 locations and testified they matched at 14 locations. At one location, locus D–5, there were three alleles instead 28 of the standard two. Two of these alleles were the same as 1 defendant's profile at the D–5 locus, as were the alleles at the other 14 locations. One allele at D–5 was not consistent with defendant's 2 profile. Thus, Nickel concluded, “[t]he major profile from the sperm fraction is the same as [defendant's] reference profile. And the 3 reason I said the major profile is because we have a location . . . at D–5 where a minor allele was detected. And I called this in my report 4 as carryover from the [epithelial] cell fraction. . . . [The victim's] profile is a 12, 12. And that is consistent with that minor allele being 5 carried over to that sperm fraction.” Nickel explained that the differential extraction process “isn't a 100 percent efficient process.” 6 Carryover occurs when the sperm cells are not separated from all of the epithelial cells in the extraction process and, for example, some 7 of the epithelial cells are in the sperm fragment. This kind of carryover is “pretty common” and Nickel had seen it on “multiple 8 occasions.” The third allele was a 12, and the victim was a 12 at that location. Nickel opined that “the most likely explanation, which we 9 see at the laboratory when we do differential extractions all of the time, is carryover.” 10 Nickel testified that there are two other possible explanations for the 11 third allele at D–5. One is that the profile includes a tri-allele. A tri- allele is a very rare phenomenon, but Nickel has occasionally 12 observed them. If the “12” allele at locus D–5 is part of a rare tri- allele, then the DNA profile for the sperm fraction does not match 13 defendant's DNA from the buccal swab, because defendant's DNA from that swab has no tri-alleles at any locus. Nickel said the third 14 allele could be explained by a mutation, though he found no mutation when working on the case, and his notes made no mention of a 15 mutation. Nickel indicated there was no way of knowing if it were a tri-allele belonging to defendant without obtaining a semen sample 16 from defendant for comparison. [Footnote omitted.] Nickel testified defendant's semen sample could be different from his buccal sample 17 by a tri-allele. Semen samples are not ordinarily collected by law enforcement, but the defense could have obtained a sample of 18 defendant's semen and tested it. Nickel said that characterizing the results as a tri-allele would not exclude defendant, despite the 19 absence of a tri-allele in defendant's DNA profile at locus D–5. 20 Another explanation for the third allele reading of “12” at locus D–5 could be that it came from an unknown male contributor or Beto. 21 Beto has a “12” allele at D–5, so it was possible that it was a carryover from Beto. However, had the third allele been Beto's, 22 Nickel would have expected to see other alleles matching Beto's profile. Nevertheless, he could not include or exclude Beto as being 23 the contributor of that allele. 24 On cross-examination, Nickel agreed there was “no scientific basis” for his opinion that the third allele was carryover from the non-sperm 25 fraction. “I didn't determine that it was—but I've seen it in multiple occasions that this crossover does occur, so I decided to call it as a 26 12 from carryover.” Nickel was not aware of any cases documenting a 14–loci match in samples from different people. 27 Nickel acknowledged that laboratory protocol requires repeating the 28 differential extraction process if epithelial cells are detected in a 1 sperm fraction, but he did not do so because he saw no epithelial cells in the small representative sample from the extraction he examined 2 under the microscope. When asked to explain how he could characterize the third allele at locus D–5 as carryover from the 3 epithelial portion of the sample if the differential extraction process was properly performed, Nickel said, “I'm saying there's no way to 4 determine that minor allele at the D–5 location, there's no scientific basis to determine if it's carryover, triallele or another individual.” 5 Nickel's opinion that the third allele was carryover, was based on his professional wisdom gathered from his work, training, experience, 6 and talking to colleagues. 7 Nickel provided several reasons why he decided to characterize the third allele as carryover from the nonsperm fraction. He said he had 8 seen “in multiple occasions that this crossover does occur.” He would expect to see additional alleles at other locations if there was 9 more than one sperm contributor to the vaginal sample. The absence of additional alleles at other locations led him to form the opinion 10 that the additional allele was a carryover from the victim's DNA profile. Thus, despite the other possibilities, based on his training 11 and experience, Nickel opined that defendant was the major DNA contributor of the sperm fraction from the victim's vaginal swab. 12 Using the FBI statistical program, Nickel testified the statistical 13 frequency of occurrence of the same DNA profile as defendant, who does not have an identical twin, would be one in two sextillion 14 African–Americans, one in nine quintillion Caucasians, and one in one quintillion Hispanics. [Footnote omitted.] 15 Defense Case 16 Michelle Okazaki testified she and defendant had been dating since 17 2007, exclusively, “[f]or the most part,” seeing each other “at least once a month” until 2010. She did not hear from him for a long time 18 and assumed he lost interest. She later learned he had been arrested. Eventually, in 2011, he told her about the victim's accusation. 19 Although Okazaki did not know about the accusation until 2011, she testified she saw the victim and Beto at defendant's home a couple of 20 weeks after the night in question, and the victim was comfortable around defendant and even wanted to spend the night at his house 21 rather than ride her bicycle or accept Okazaki's offer to drive her home. Okazaki did not believe defendant would ever take advantage 22 of an intoxicated woman and commit a nonconsensual sex act. 23 Melissa Tiner testified she and defendant knew each other for 14 or 15 years, were best friends, and dated on and off for several months. 24 On the day after the night in question, she picked up defendant for lunch. She had never seen him more hung over. She did not think 25 he would take advantage of a young intoxicated woman and commit a nonconsensual sex act. 26 Two of Sophia's friends testified they had been around defendant 27 when he was drunk and when he was sober and did not believe he would ever take advantage of a young intoxicated woman and 28 commit a nonconsensual sex act. 1 Beto testified that he and the victim both got drunk that night. He had never seen her that drunk. However, he saw her drunk on many 2 occasions, sometimes so drunk that she later had no memory of what she did. Beto checked on the victim after she went to Sophia's room 3 but did not recall whether her clothes were on, but he recalled that she was under the covers. Around midnight, Beto went out to get 4 some food. When he returned, no one was awake. He woke up defendant, who was “passed out” asleep on the living room floor, and 5 told him to go to bed. Defendant replied he was not sleeping and resumed playing video games. Beto watched defendant playing the 6 video games until Beto fell asleep on the couch. At some point, Beto heard defendant walk toward his bedroom, which is on the opposite 7 side of the house from Sophia's room. At some point thereafter, the victim awakened Beto and asked if they had had sex. He said no. 8 She kept asking if he was certain. Eventually, she asked if he thought defendant might have done something to her. When Beto asked why, 9 she said she woke up naked and defendant's slippers were by the bed. 10 After that night, Beto and the victim continued to hang out at defendant's house, though the victim said she did not want to go there 11 anymore. On one occasion, they rode bikes to defendant's house, and defendant gave them a ride home. Beto did not recall the victim 12 wanting to stay the night or Okazaki offering a ride home. 13 Sophia testified defendant was wearing socks on the night in question and did not usually wear slippers with socks. She said she 14 remembered he was wearing socks because “he had a hole in them.” However, she also admitted she previously testified she had no 15 reason to pay attention to what defendant had on his feet. When Sophia returned the next day, her bed was unmade and defendant's 16 shirt was on her floor. She asked her brother and Beto why, and they told her what the victim said about waking up with a sore vagina. 17 When the victim returned, the victim confided the same thing to Sophia, who related that she had been raped in high school, and 18 encouraged the victim to speak with someone. Sophia asked defendant why his shirt was in her room. He said Karolyn wanted 19 the shirt because someone was vomiting. Sophia testified defendant did not remember who was vomiting. “He was kind of all over the 20 place. Somebody needed a shirt kind of thing.” Sophia was concerned that defendant's shirt and slippers had been in her room. 21 She checked the bedding for secretions but did not see anything. She set aside the bedding in case the victim later remembered anything, 22 but when the victim came over the next day, Sophia washed the bedding because she did not think the victim would come back if 23 defendant had raped her. Sophia never asked defendant about what the victim had said. Sophia testified her father was respectful of her 24 privacy. None of her friends ever complained about defendant hitting on them, and she did not believe he would ever take advantage 25 of a young intoxicated woman and commit a nonconsensual sex act. 26 Defendant's son did not testify. 27 Dr. Gregory Sokolov, a psychiatrist, testified as an expert witness on Ambien. He said Ambien is a sedative prescribed for insomnia. 28 Most patients take it right before they go to bed. Patients with 1 anticipatory anxiety about another sleepless night may take it earlier. It is not prescribed for depression, but some patients take both 2 Ambien and an anti-depressant. Ambien is not recommended for anxiety, but some doctors prescribe “off label.” Ambien has a very 3 rare side-effect in that it can cause a sedated hypnotic intoxicated state, during which the patient engages in complex behavior while 4 unconscious of the act, with little or no memory of it later. The behavior includes sleepwalking, sleep-eating, sleep-sex, and sleep- 5 driving. Mixing alcohol with Ambien increases the risk of this complex behavior. Around 2006 or 2007, the federal government 6 required the drug maker to warn doctors of this side-effect. Responding to a hypothetical question involving nonconsensual sex 7 imposed upon another person by a person who took Ambien, drank 60 ounces of beer and four to five vodka cocktails, smoked 8 marijuana, and had no recollection of having sex, Dr. Sokolov opined that the conduct “could be consistent with a sedative hypnotic 9 intoxication and/or complex behavior event,” and from a psychiatric medical perspective, such conduct would be involuntary. 10 Defendant testified. He planned to spend the evening alone on his 11 living room couch playing with his Xbox. He took an Ambien around 4:00 or 5:00 p.m., before he went to the store and bought a 12 video game, a headset, and beer. Defendant testified he got a prescription in 2006 to take Ambien as needed to help with anxiety, 13 stress, depression, and insomnia. He had taken Ambien for a couple of nights before this incident due to stress from being laid off from 14 his job. Ambien sometimes puts him to sleep, but he did not care if he fell asleep because he bought the game rather than renting it and 15 could play it whenever he wanted. Defendant did not learn of the potential rare side effect of Ambien until a prior hearing when the 16 doctor testified. 17 As defendant was getting his game set up, he received a phone call from the victim and Beto, wanting to come over. He reluctantly 18 agreed. His son came home with Karolyn, and the victim and Beto arrived with a large bottle of vodka and some mixers. The four young 19 people mainly stayed in his son's bedroom and went back and forth to the kitchen. Karolyn wanted to smoke marijuana, so she and 20 defendant smoked marijuana in the living room. The two young men moved back and forth between the son's room and the living 21 room to check out the video game defendant was playing. The victim offered defendant vodka and orange juice, and he accepted. 22 He accepted offers of refills and drank “around five-ish” vodka drinks that night. 23 The victim got drunk and loud. Defendant heard someone urging the 24 victim to lie down. He heard sounds like someone was vomiting. He did not try to help, because it had happened before, and the girls 25 usually take care of it. Defendant testified that he had a vague recollection of Karolyn asking him for a shirt, and he gave her one. 26 He had previously testified that he had just washed clothes and obtained the shirt from the laundry. 27 The last thing defendant remembered from that night is Beto helping 28 him up off the floor and into defendant's bedroom, though Beto 1 contradicts it. The next thing defendant remembered is getting a phone call the next morning around 11:00 a.m. from his friend 2 Melissa about a planned lunch with her he had forgotten. He awoke with the worst hangover of his life. He did not have the burning 3 sensation that he gets after sex and there was no other indication he had had sex the previous night. He was fully dressed as he had been 4 dressed the night before. Defendant was wearing a T-shirt, hooded sweatshirt, sweat pants, and socks. That he awoke clothed was 5 significant to him because he takes off his clothes when he has sex and he did not remember taking off his clothes that night. He keeps 6 slippers out for going outside or for women who complain about his rule against wearing shoes in the house. He does not normally wear 7 his slippers around the house but does so on occasion. He testified he does not know how his slippers got into Sophia's room. Nor does 8 he know how his sperm got into the victim's vagina. 9 When defendant returned home from having lunch with Melissa, the victim and the others were playing a video game. The victim acted 10 completely normal, continued to hang out at defendant's home, continued to interact with him as usual, and never said anything 11 about defendant having sex with her. On one of those visits, the victim told Michelle that she, the victim, did not want to go home. 12 About four or five weeks after the night in question, the victim stopped coming to defendant's home. 13 About three or four months after the night in question, defendant 14 received the phone call from the victim accusing him of rape. He was shocked. He did not deny it, because she was a friend, he did 15 not remember anything from that night, and he “had no reason to disbelieve her.” He apologized to be polite and let her know he was 16 sensitive. His daughter went through something like that and he wanted to make sure the victim knew he was concerned about her 17 well-being. He told her he was attracted to her to be kind. He testified, “I was in fear of what was going on as far as her saying that 18 I raped her and so I thought it was the best thing to ease the situation. So being as polite as possible I said that as far as to pretty much 19 defuse the situation because I was clueless on what was going on at that point in time because no one said anything.” 20 Defendant was angry with Beto for not alerting defendant to the 21 victim's allegation, but defendant and Beto later reconciled. 22 Defendant testified his ex-wife complained he had difficulty performing sex acts when drunk. 23 Defendant admitted complimenting Karolyn's breasts. When she 24 asked for marijuana, she leaned over, and one breast fell out in front of his face. He was uncomfortable and did not know what to say, so 25 he paid her the compliment, and she laughed, put her breast back in her blouse, and they never spoke of it again. When asked if he would 26 joke with women about sex, he said, “I've been inappropriate, but I wouldn't cross the line and touch nobody.” 27 Defendant testified he does not believe he had sex with the victim. 28 When asked on direct examination, “You heard the DNA evidence 1 in the case?” defendant answered, “Yeah, I have to accept that.” He testified, “I have no memory of anything that night. Nothing. 2 Anything of having sex. Nothing. I don't remember nothing like that.” When asked if he believed himself capable of taking 3 advantage of a young intoxicated woman without her consent, he said, “No, absolutely not. And all my daughters' friends have partied 4 with me, they've slept on the couch along side with me and there's been no incidents ever since I was even in college ever, anything 5 accusation [sic ] like this. No.” 6 Before this incident, the victim stayed overnight on her first visit to defendant's home; she and two of her girlfriends slept on defendant's 7 bed, and he slept on the couch. 8 Prosecution Rebuttal Case 9 Sacramento Police Department Officer James Sobodash spoke with Beto at the hospital when the victim was there for the sexual assault 10 examination. Beto told Sobodash that he went to Taco Bell around 11:30 p.m. The victim had been put in Sophia's room earlier. When 11 Beto returned around midnight, he checked on the victim. She was covered by a blanket and was wearing her yellow and gray long- 12 sleeved shirt. Beto woke up defendant and watched him play a video game until Beto fell asleep. Beto was awakened by the victim 13 around 2:30 a.m., and she told him about her suspicions. She mentioned that defendant's slippers were by the bed. Beto asked to 14 see them and the victim went into Sophia's room and came out with the slippers. Beto said he started to freak out at that point. 15 Later in the day, when Sophia was talking to the victim, Sophia asked 16 defendant why his shirt was in her bedroom. According to Beto, defendant said the victim had asked for the shirt because she was 17 sick. The victim whispered to Beto that she had never asked defendant for a shirt. 18 Beto told Sobodash that the first time defendant met Karolyn he told 19 her, “Wow, you have a perfect pair of tits, you know that?” 20 ECF No. 11-5 at 3-20. 21 II. Standards of Review Applicable to Habeas Corpus Claims 22 An application for a writ of habeas corpus by a person in custody under a judgment of a 23 state court can be granted only for violations of the Constitution or laws of the United States. 28 24 U.S.C. § 2254(a). A federal writ of habeas corpus is not available for alleged error in the 25 interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. 26 McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.2d 1146, 1149 (9th Cir. 2000). 27 ///// 28 ///// 1 Title 28 U.S.C. § 2254(d) sets forth the following limitation on the granting of federal 2 habeas corpus relief: 3 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 4 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – 5 (1) resulted in a decision that was contrary to, or involved an 6 unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; 7 or 8 (2) resulted in a decision that was based on an unreasonable 9 determination of the facts in light of the evidence presented in the State court proceeding. 10 11 The “contrary to” and “unreasonable application” clauses of § 2254(d)(1) are different, 12 as the Supreme Court has explained: 13 A federal habeas court may issue the writ under the “contrary to” clause if the state court applies a rule different from the governing 14 law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court 15 may grant relief under the “unreasonable application” clause if the state court correctly identifies the governing legal principle from our 16 decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court’s 17 application of clearly established federal law is objectively unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362 18 (2000)] that an unreasonable application is different from an 19 incorrect one. 20 Bell v. Cone, 535 U.S. 685, 694 (2002). 21 “A state court’s determination that a claim lacks merit precludes federal habeas relief so 22 long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” 23 Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 24 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a 25 state prisoner must show that the state court’s ruling on the claim being presented in federal court 26 was so lacking in justification that there was an error well understood and comprehended in 27 existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. 28 ///// 1 The court looks to the last reasoned state court decision as the basis for the state court 2 judgment. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011). 3 The petitioner bears “the burden to demonstrate that ‘there was no reasonable basis for the 4 state court to deny relief.’” Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 5 562 U.S. at 98). 6 III. Petitioner’s Claims 7 A. Insufficient Evidence 8 In his first claim, petitioner asserts there was not sufficient evidence presented at trial to 9 sustain his convictions. Evidence is constitutionally sufficient to support a jury’s finding if when, 10 “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact 11 could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. 12 Virginia, 443 U.S. 307, 319 (1979). 13 The last reasoned decision with respect to petitioner’s insufficiency of the evidence claim 14 was issued by the California Court of Appeal on direct appeal. After recognizing the appropriate 15 standard from Jackson, the Court of Appeal found as follows: 16 Here, the combination of the DNA evidence and other circumstantial evidence was sufficient to support the judgment. The DNA testing 17 of the sperm fragment from the vaginal swab matched defendant at 14 loci. It is uncontroverted that the major profile is not Beto and it 18 is not defendant’s son. That leaves the only other male in the house, defendant. Unless there was some unknown male at the house who 19 had intercourse with the victim who had the exact same profile at every location except one, where a potential triallele is located, then 20 it must have been defendant who was the perpetrator. Nickel was not aware of any cases documenting a 14-loci match in samples from 21 different people. Nor did defendant introduce any evidence indicating as much.3 22 There was also non-DNA evidence. Defendant’s slippers were found 23 next to the bed, as were the victim’s clothes, and when the victim went to bed, she was fully clothed. Defendant had no explanation 24 for why his slippers were by the bed when confronted with this assertion during the pretext call. His shirt was also found on the 25 floor. When confronted by Sophia about the shirt, the victim remembered that defendant said he brought it to her because she was 26 27 3 See People v. Robinson (2010) 47 Cal.4th 1104, 1115 [defendant’s DNA was analyzed at 13 loci and the prosecution expert testified that there had been no reported cases of two people who 28 are not identical twins matching at all 13 loci]. 1 cold, and Beto said defendant claimed the victim had asked him for a shirt. She had not. The jury was not required to accept the 2 explanation defendant gave for this evidence at trial. Moreover, even at trial, defendant never expressly denied the rape. Instead, he just 3 claimed he did not remember it, even though during the pretext call, which came out of the blue months after the night in question, he 4 remembered other details of that night, e.g., that his son’s girlfriend purportedly asked him for a shirt, that he provided her with a shirt, 5 and that the shirt was black; that he took hits off a bottle and also had beer; that he smoked from a bong with his son’s girlfriend; that his 6 son’s girlfriend tried to get the victim to smoke; that the victim declined the marijuana; that he passed out in the living room while 7 playing the video game; that Beto woke him; that he went to bed in his bedroom; and that he woke up fully clothed. There is sufficient 8 evidence to support defendant’s conviction. 9 ECF No. 11-5 at 30-31 10 After reviewing all material portions of the record before the court, the court agrees with 11 the assessment of petitioner’s sufficiency of the evidence claim put forward by the Court of 12 Appeal. For this reason, and because the Court of Appeal’s rejection of petitioner’s sufficiency of 13 the claim is not contrary to Supreme Court precedent, it does not involve an unreasonable 14 application of Supreme Court precedent and it is not based upon an unreasonable determination 15 of the facts, habeas relief is precluded under 28 U.S.C. § 2254(d).4 16 B. Sentencing 17 As indicated above, petitioner was sentenced to 11 years imprisonment. Petitioner was 18 sentenced to the low term of 3 years for rape of an unconscious woman with that term being 19 doubled pursuant to Cal. Penal Code § 667(e)(1) because defendant admitted he had been 20 convicted of assault with a deadly weapon in 1991. ECF No. 11-5 at 20 & 35. Five additional 21 years were added pursuant to § 667(a)(1) also due to petitioner’s assault with a deadly weapon 22 conviction. Id. Petitioner claims the trial court abused its discretion in imposing this sentence by 23 not adequately considering mitigating factors. 24 ///// 25 ///// 26 4 The court notes that before the court of appeal, petitioner challenged the admissibility of the 27 DNA evidence as a violation of due process. ECF No. 11-5 at 23-28. While petitioner argues concerning the value of the DNA evidence, he makes no specific argument that admission of the 28 evidence violates some aspect of federal law. 1 Whether the trial court abused its discretion at sentencing is a matter of California law. 2 Since a petition for a writ of habeas corpus under 28 U.S.C. § 2254 can only be granted for a 3 violation of federal law, relief can not be granted as to petitioner’s sentencing claim. 4 C. Telephone Call and “Adoptive Admission” Instruction 5 Petitioner makes a claim related to the phone call described above between petitioner and 6 the victim. Petitioner asserts that “[t]he pretext call was fabricated by the Detective, and was a 7 method of interrogation to circumvent and prevent request of counsel and due process.” 8 However, petitioner fails to point to anything suggesting that the phone call itself or admission of 9 parts of the call into evidence amount to a violation of any federal right. 10 Petitioner also argues the jury was improperly instructed as to an “adoptive admission” 11 based upon the call. At trial, jurors were instructed as follows: 12 If you conclude that someone made a statement outside of court that accused the defendant of the crime and the defendant did not deny it, 13 you must decide whether each of the following is true: 14 1. The statement was made to the defendant or made in his presence; 15 2. The defendant heard and understood the statement; 16 3. The defendant would, under all the circumstances, naturally have denied the statement if he thought it was true; 17 AND 18 4. The defendant could have denied it but did not. 19 If you decide that all of these requirements have been met, you may 20 conclude that the defendant admitted the statement was true. 21 If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant’s response 22 for any purpose. 23 ECF 12-16 at 32-33. 24 Again, whether this instruction was given in violation of California law is immaterial as a 25 violation of California law alone does not provide a basis for federal habeas relief. 28 U.S.C. § 26 2254(a). Petitioner seems to suggest that the instruction implies that petitioner made certain 27 admissions where he did not, but that is not the case. The instruction did not tell jurors they had 28 to find admissions under certain circumstances. Rather, the import of the instruction was that, 1 | unless certain conditions were met, a statement made in the defendant’s presence and defendant’s 2 | response to that statement (including a lack of a response) could not be considered at all. 3 | Accordingly, this instruction protected petitioner rather than prejudicing his case, and did not 4 | deprive petitioner of a fair trial as he suggests. 5 Furthermore, the last reasoned decision concerning petitioner’s claim was issued by the 6 | California Court of Appeal. ECF No. 11-5 at 31-36. The Court of Appeal’s rejection of the claim 7 | is not contrary to Supreme Court precedent, it does not involve an unreasonable application of 8 || Supreme Court precedent, and it is not based upon an unreasonable determination of the facts. 9 | Accordingly, habeas relief is precluded under 28 U.S.C. § 2254(d). 10 | IV. Conclusion 11 For all of the foregoing reasons, petitioner’s petition for a writ of habeas corpus will be 12 | denied. 13 In accordance with the above, IT IS HEREBY ORDERED that: 14 1. Petitioner’s petition for a writ of habeas corpus (ECF No. 1) is denied; 15 2. This case be closed; and 16 3. The court declines to issue a certificate of appealability as referenced in 28 U.S.C. § 17 | 2253. 18 | Dated: March 31, 2021 Cardy Kt |X 19 CAROLYN K DELANEY 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 sorit2181015.157 24 25 26 27 28 17