(HC) Harlow v. Ndoh ( 2021 )

Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 1 of 32 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN F. HARLOW, No. 2:17-CV-0922 MCE DB 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 THE PEOPLE OF THE STATE OF CALIFORNIA, 15 Respondent. 16 17 18 Petitioner, a state prisoner, proceeds pro se and in forma pauperis with a petition for a writ 19 of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges a judgment of convictions entered 20 on January 25, 2013 in the Sacramento County Superior Court. Petitioner stands convicted of 21 twelve counts of lewd and lascivious acts with a child under fourteen years of age, three counts of 22 lewd and lascivious acts with a child fourteen years of age, and one count of using a minor to 23 perform prohibited acts. Petitioner claims: (1) the trial court’s admission of uncharged sexual 24 offenses violated state evidentiary rules and his Fourteenth Amendment due process rights, and 25 defense counsel’s failure to object constituted ineffective assistance; (2) the trial court’s 26 admission of Child Sexual Abuse Accommodation Syndrome (“CSAAS”) evidence violated his 27 Fourteenth Amendment due process rights, and defense counsel’s failure to object on due process 28 grounds constituted ineffective assistance; (3) the use of a hypothetical question during expert 1 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 2 of 32 1 testimony to which defense counsel did not object violated his rights under the Sixth and 2 Fourteenth Amendments; and (4) trial counsel further rendered ineffective assistance by failing to 3 properly prepare for trial. For the reasons set forth below, it is recommended that the petition be 4 denied. 5 BACKGROUND 6 I. Facts Established at Trial 7 The California Court of Appeal for the Third Appellate District provided the following 8 summary of the facts presented at trial: 9 Defendant married the minor’s mother when the minor was two years old. When she was 15 years old, the minor told her mother, during a 10 heated argument, that defendant had been molesting her for four years. That was the first time the minor told anyone about the abuse. 11 The mother contacted the police and defendant was placed under 12 arrest. 13 The mother told police she saw defendant looking at images of naked prepubescent girls. At a subsequent interview, the mother said she 14 confronted defendant about seeing child pornography on his computer and defendant did not deny it. According to the mother, 15 defendant said he found prepubescent girls attractive looking. 16 Police interviewed the minor three times. The minor provided more details about the sexual abuse each time police interviewed her, but 17 she did not recant her accusations against defendant. There were inconsistencies in the minor’s accounts and she could not specifically 18 remember what happened during each incident of molestation. 19 Police searched defendant’s home and seized a white massager, which the minor told detectives defendant had used on her. Police 20 also seized defendant’s red Samsung cell phone, a computer, a digital camera, and three DVDs containing adult pornography. No data 21 could be retrieved from defendant’s cell phone. There was evidence on the computer that someone had visited websites containing 22 sexually explicit materials, and one website possibly contained child pornography, but there was no child pornography on the computer or 23 the digital camera. The computer contained a program called Evidence Eliminator, which can be used to permanently erase files 24 from the computer and can be set to automatically run at specified times. 25 At trial the minor testified defendant began to molest her when she 26 was 11 years old. The first act of molestation occurred in “the downstairs” room, where the family kept a computer that defendant 27 used primarily. Defendant showed the minor pornography on the computer while she sat on his lap, and defendant touched the minor’s 28 vaginal area with his hand, under the minor’s clothes. Defendant 2 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 3 of 32 1 masturbated while touching the minor. After the first incident, defendant touched the minor in the same manner multiple times a 2 month. Defendant ejaculated sometimes. 3 Defendant began molesting the minor in the living room when she was 11 or 12 years old. The acts in the living room occurred multiple 4 times a month. The minor described a typical molest incident in the living room as involving defendant rubbing her stomach, then 5 moving his hand to her breasts or her vaginal area, sometimes over her clothing but most of the time under her clothing. The minor said 6 defendant may have put his fingers inside her vagina a couple of times. Defendant last touched the minor’s vaginal area and breasts 7 about a week before his arrest. 8 Defendant put a massager on the minor’s vaginal area more than once in the living room. He masturbated while using the massager on the 9 minor. Sometimes defendant ejaculated. 10 Defendant began molesting the minor in her bedroom when she was about 11 or 12 years old and continued until she was 15 years old. 11 The minor described an average incident of molestation in her bedroom as follows: Defendant entered her bedroom after everyone 12 else went to bed. He rubbed the minor’s back or stomach, then her breasts or vaginal area. He ejaculated during one of these night visits. 13 He molested the minor in her bedroom about seven or eight times a month. 14 Defendant also took photographs of the minor in her bedroom on 15 more than one occasion. The minor agreed to go to her room with defendant to have her photographs taken because she was scared to 16 say no, even though defendant never threatened her or instructed her not to tell anyone. Defendant used his red cell phone or a black and 17 silver camera to take the photographs. The minor was naked in most of the photographs. Defendant instructed the minor to get on her 18 hands and knees for some of the photographs. He masturbated sometimes while taking the photographs. He ejaculated five times 19 while taking photographs of the minor. He showed the minor some of the photographs he had taken of her on his computer. The 20 photographs showed the minor’s vagina, butt, and bare breasts. Defendant stopped taking photographs of the minor when she was 21 about 14 years old. 22 The minor identified People’s exhibit number 16, which police recovered from defendant’s computer, as a photograph focusing on 23 her butt. The photograph was taken with a Samsung SCH-U450 device. 24 The minor testified everything she had described to the jury was true. 25 She said she loved defendant despite what he was doing to her. She never tried to avoid him. She hoped he would change. She 26 maintained she still loved and missed defendant. 27 The minor’s mother testified she saw defendant rub the minor’s back and saw the minor sitting on defendant’s lap watching something on 28 the computer, but she never saw defendant do anything that made her 3 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 4 of 32 1 suspect he was molesting the minor. According to the mother, the minor never appeared afraid of defendant and never seemed 2 uncomfortable or afraid of going to her bedroom when defendant was at home. 3 The mother testified she lied to police about seeing child 4 pornography on the family’s old computer. She admitted she was angry with defendant and wanted to hurt him. She also said she was 5 not thinking clearly at the time police interviewed her. The mother said she never saw child pornography on defendant’s computer, and 6 she never heard defendant say he found prepubescent girls attractive. She admitted she still loved defendant and wanted him released. 7 The prosecutor played audio recordings of the mother’s statements 8 to police during the trial. The mother acknowledged the voice on the recordings belonged to her. She agreed she sounded calm in the 9 recorded interviews, and it sounded like she took the time to think things through before she spoke. 10 The People called Dr. Anthony Urquiza as an expert on CSAAS. We 11 will discuss Dr. Urquiza’s testimony in sections II and III infra. 12 Defendant testified at the trial. He denied committing the charged offenses. He agreed the minor sat on his lap and he sometimes rubbed 13 the minor’s back, upper chest, stomach, or legs. But he did not think there was anything inappropriate about those acts. Although he 14 viewed pornography on his computer, he never did so when his children were around and he never looked at child pornography. 15 Defendant denied ever watching pornography with the minor, getting aroused when he rubbed her, taking photographs of her while she was 16 naked, using a massager on her, masturbating in front of her, or ejaculating on her. He denied ever telling the minor’s mother he 17 found prepubescent girls attractive. He did not recognize People’s exhibit 16 and did not know who took that photograph. He installed 18 Evidence Eliminator on his computer for his sign business, not to erase child pornography or inappropriate photographs of the minor. 19 Defendant could not think of any reason why the minor would accuse him of sexual abuse. 20 21 (ECF No. 13-7 at 6-15); People v. Harlow, No. C073330, 2016 WL 73637, at *1-3 (Cal. Ct. App. 22 Feb. 25, 2016). 23 II. Procedural Background 24 A. Judgment 25 A jury convicted petitioner of twelve counts of lewd and lascivious acts with a child under 26 fourteen years of age, three counts of lewd and lascivious acts with a child who was fourteen 27 years of age and one count of using a minor to perform prohibited acts. (ECF No. 13-7 at 1.) The 28 trial court imposed an aggregate prison term of thirty years and eight months. (Id. at 6.) 4 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 5 of 32 1 B. State Appeal, State Habeas, and Federal Proceedings 2 Petitioner timely appealed his convictions, raising grounds one through three discussed 3 herein. On February 25, 2016, the California Court of Appeal for the Third Appellate District 4 rejected the claims and affirmed the judgment. Petitioner sought review in the California Supreme 5 Court. (ECF No. 13-8.) On May 11, 2016, the California Supreme Court summarily denied 6 review. (ECF No. 13-9.) 7 On September 27, 2016, petitioner filed his first habeas corpus petition in this court. See 8 Harlow v. People of the State of California, No. 2:16-cv-02306. The petition was dismissed 9 because not all claims were exhausted. 10 On January 19, 2017, petitioner sought habeas corpus relief in the California Court of 11 Appeal, Third Appellate District, raising therein the claim that is ground four of this petition. 12 (ECF No. 13-10.) The state court of appeal summarily denied the petition on January 26, 2017. 13 (ECF No.13-11.) On February 16, 2017, petitioner presented the same claim to the California 14 Supreme Court. (ECF No. 13-12.) The California Supreme Court summarily denied the petition 15 on April 12, 2017. (ECF No. 13-13.) 16 The present petition was filed on April 24, 2017. (ECF No. 1.) Respondent has filed an 17 answer. (ECF No. 12.) 18 STANDARDS OF REVIEW APPLICABLE TO HABEAS CORPUS CLAIMS 19 An application for a writ of habeas corpus by a person in custody under a judgment of a 20 state court can be granted only for violations of the Constitution or laws of the United States. 28 21 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or 22 application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 23 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000). 24 Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas 25 corpus relief: 26 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 27 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – 28 5 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 6 of 32 1 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 2 determined by the Supreme Court of the United States; or 3 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the 4 State court proceeding. 5 For purposes of applying § 2254(d)(1), “clearly established federal law” consists of 6 holdings of the United States Supreme Court at the time of the last reasoned state court decision. 7 Greene v. Fisher, 565 U.S. 34, 37 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) 8 (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent “‘may be 9 persuasive in determining what law is clearly established and whether a state court applied that 10 law unreasonably.’” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th 11 Cir. 2010)). However, circuit precedent may not be “used to refine or sharpen a general principle 12 of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not 13 announced.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (citing Parker v. Matthews, 567 U.S. 37 14 (2012)). Nor may it be used to “determine whether a particular rule of law is so widely accepted 15 among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as 16 correct.” Id. at 1451. Further, where courts of appeals have diverged in their treatment of an issue, 17 it cannot be said that there is “clearly established Federal law” governing that issue. Carey v. 18 Musladin, 549 U.S. 70, 76-77 (2006). 19 A state court decision is “contrary to” clearly established federal law if it applies a rule 20 contradicting a holding of the Supreme Court or reaches a result different from Supreme Court 21 precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003) 22 (quoting Williams, 529 U.S. at 405-06). “Under the ‘unreasonable application’ clause of § 23 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct 24 governing legal principle from th[e] [Supreme] Court’s decisions, but unreasonably applies that 25 principle to the facts of the prisoner’s case.’” Lockyer v. Andrade, 538 U.S. 63, 75 (2003) 26 (quoting Williams, 529 U.S. at 413); Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). “[A] 27 federal habeas court may not issue the writ simply because that court concludes in its independent 28 judgment that the relevant state-court decision applied clearly established federal law erroneously 6 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 7 of 32 1 or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 411; see 2 also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Andrade, 538 U.S. at 75 (“It is not enough 3 that a federal habeas court, in its independent review of the legal question, is left with a firm 4 conviction that the state court was erroneous.” (Internal citations and quotation marks omitted.)). 5 “A state court’s determination that a claim lacks merit precludes federal habeas relief so long as 6 ‘fairminded jurists could disagree’ on the correctness of the state court's decision.” Harrington v. 7 Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 8 Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner 9 must show that the state court's ruling on the claim being presented in federal court was so 10 lacking in justification that there was an error well understood and comprehended in existing law 11 beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. 12 There are two ways a petitioner may satisfy subsection (d)(2). Hibbler v. Benedetti, 693 13 F.3d 1140, 1146 (9th Cir. 2012). He may show the state court’s findings of fact “were not 14 supported by substantial evidence in the state court record” or he may “challenge the fact-finding 15 process itself on the ground it was deficient in some material way.” Id. (citing Taylor v. Maddox, 16 366 F.3d 992, 999-1001 (9th Cir. 2004)); see also Hurles v. Ryan, 752 F.3d 768, 790-91 (9th Cir. 17 2014) (If a state court makes factual findings without an opportunity for the petitioner to present 18 evidence, the fact-finding process may be deficient and the state court opinion may not be entitled 19 to deference.). Under the “substantial evidence” test, the court asks whether “an appellate panel, 20 applying the normal standards of appellate review,” could reasonably conclude that the finding is 21 supported by the record. Hibbler, 693 F.3d at 1146 (9th Cir. 2012). 22 The second test, whether the state court’s fact-finding process is insufficient, requires the 23 federal court to “be satisfied that any appellate court to whom the defect [in the state court’s fact- 24 finding process] is pointed out would be unreasonable in holding that the state court’s fact-finding 25 process was adequate.” Hibbler, 693 F.3d at 1146-47 (quoting Lambert v. Blodgett, 393 F.3d 943, 26 972 (9th Cir. 2004)). The state court’s failure to hold an evidentiary hearing does not 27 automatically render its fact-finding process unreasonable. Id. at 1147. Further, a state court may 28 make factual findings without an evidentiary hearing if “the record conclusively establishes a fact 7 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 8 of 32 1 or where petitioner’s factual allegations are entirely without credibility.” Perez v. Rosario, 459 2 F.3d 943, 951 (9th Cir. 2006) (citing Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003)). 3 If a petitioner overcomes one of the hurdles posed by section 2254(d), this court reviews 4 the merits of the claim de novo. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see 5 also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc). For claims upon which a 6 petitioner seeks to present evidence, the petitioner must meet the standards of 28 U.S.C. § 7 2254(e)(2) by showing that he has not “failed to develop the factual basis of [the] claim in State 8 court proceedings” and by meeting the federal case law standards for the presentation of evidence 9 in a federal habeas proceeding. See Cullen v. Pinholster, 563 U.S. 170, 186 (2011). 10 This court looks to the last reasoned state court decision as the basis for the state court 11 judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). 12 “[I]f the last reasoned state court decision adopts or substantially incorporates the reasoning from 13 a previous state court decision, [this court] may consider both decisions to ‘fully ascertain the 14 reasoning of the last decision.’” Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en 15 banc) (quoting Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005)). “When a federal claim 16 has been presented to a state court and the state court has denied relief, it may be presumed that 17 the state court adjudicated the claim on the merits in the absence of any indication or state-law 18 procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption may be 19 overcome by showing “there is reason to think some other explanation for the state court’s 20 decision is more likely.” Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). 21 Similarly, when a state court decision on a petitioner’s claims rejects some claims but does not 22 expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that 23 the federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289, 293 (2013). 24 When it is clear that a state court has not reached the merits of a petitioner’s claim, the deferential 25 standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court reviews the 26 claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 27 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003). 28 //// 8 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 9 of 32 1 ANALYSIS 2 Petitioner asserts four grounds for relief: (1) the state court’s admission of evidence of 3 uncharged sexual offenses violated state law and his Fourteenth Amendment due process rights, 4 and counsel’s failure to object constituted ineffective assistance; (2) the state court’s admission of 5 CSAAS evidence violated his Fourteenth Amendment due process rights, and counsel’s failure to 6 object on due process grounds constituted ineffective assistance; (3) the use of a hypothetical 7 question to which defense counsel did not object during expert testimony violated his Sixth and 8 Fourteenth Amendment rights; and (4) trial counsel further rendered ineffective assistance by 9 failing to properly prepare for trial. (ECF No. 1.) 10 I. Admission of Evidence of Uncharged Sexual Conduct 11 In his first ground, petitioner claims the admission of evidence of uncharged sexual 12 conduct pursuant to section 1108 of the California Evidence Code violated state law and his right 13 to due process under the Fourteenth Amendment. Petitioner further claims his trial counsel 14 rendered ineffective assistance in failing to properly object. (ECF No. 1 at 9-10.) 15 California Evidence Code section 1108 provides, in pertinent part, “[i]n a criminal action 16 in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of 17 another sexual offense or offenses is not made inadmissible by Section 1101 [prohibiting 18 evidence of a person’s character or a trait of his or her character], if the evidence is not 19 inadmissible pursuant to Section 352.” Cal. Evid. Code § 1108(a). Under California Evidence 20 Code section 352, evidence is inadmissible “if the probative value of the evidence is substantially 21 outweighed by the probability that its admission will necessitate undue consumption of time or 22 create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” 23 Cal. Evid. Code § 352. 24 Petitioner challenges statements by the mother of the minor that (1) she “had at some time 25 in the past seen child pornography on his computer” and (2) “[petitioner] admitted to her that he 26 found prepubescent girls attractive.” (ECF No. 1 at 9.) Petitioner contends evidence his wife saw 27 child pornography on his computer should have been excluded under the balancing test of 28 California Evidence Code section 352 since the images his wife allegedly saw were not 9 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 10 of 32 1 themselves admitted. As to the evidence that petitioner had stated he found prepubescent girls 2 attractive, petitioner argues it should not have been admitted under California Evidence Code 3 section 1108 because it was “a mere statement of one’s thoughts”, which is not a crime, and his 4 trial attorney failed to object on this basis. (ECF No. 1 at 9-10.) 5 A. State Court Opinion 6 Petitioner raised this claim in his direct appeal. In the last reasoned state court decision, 7 the California Court of Appeal considered and rejected the claim: 8 A 9 The People moved in limine to admit evidence that the mother saw defendant looking at child pornography on his computer, and that 10 defendant admitted he found prepubescent girls attractive. The People sought to admit the evidence under Evidence Code section 11 1101, subdivision (b) to show intent, and under Evidence Code section 1108 to show defendant’s propensity to commit sexual 12 offenses like those charged in this case and that defendant committed the charged offenses. 13 The trial court conducted an evidentiary hearing to decide the 14 People’s motion. The mother testified at that hearing that she may have lied to police about seeing child pornography on defendant’s 15 computer and about defendant admitting he found prepubescent girls attractive. She claimed she was distraught and wanted defendant to 16 “rot in jail for the rest of his life” when she made her statements to police. The mother said she still loved defendant and wanted him to 17 go home. 18 The prosecutor played audio recordings of the statements the mother provided to police. The mother identified her voice on the audio 19 recordings. In one recorded interview, the mother said she saw defendant looking at “child porn” on his computer. She knew what 20 she saw was “child porn” because what she saw made her uncomfortable. The images she saw were of naked “pre-puberty” 21 girls, that is, girls who looked like they were eight to 10 years old who “were not developed.” In another recorded interview, the mother 22 said she confronted defendant about seeing child pornography on his computer and defendant did not deny it. The mother again described 23 the images she saw as images of naked “pre-puberty” girls. She specified the girls in the images had not started to develop breasts 24 and had no pubic hair. The mother said defendant told her he found girls that age attractive. The mother said the girls in the images were 25 around the minor’s age and younger. 26 After hearing argument from counsel, the trial court ruled the proffered evidence was admissible under Evidence Code section 27 1108, but not under Evidence Code section 1101, subdivision (b). 28 //// 10 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 11 of 32 1 B 2 Defendant argues that on its face, Evidence Code section 1108 violates the due process clause of the United States Constitution. 3 Defendant did not raise the due process claim in the trial court, but even if it is not forfeited, the claim lacks merit. The California 4 Supreme Court has rejected a due process challenge to Evidence Code section 1108, holding that a trial court’s discretion to exclude 5 propensity evidence under Evidence Code section 352 saves Evidence Code section 1108 from a due process challenge. (People 6 v. Falsetta (1999) 21 Cal.4th 903, 915–919 (Falsetta); see People v. Wilson (2008) 44 Cal.4th 758, 796–797.) 7 Defendant acknowledges this court is bound by the Supreme Court’s 8 decision, but states he “offers the present analysis to preserve his ability to take his challenge to a higher court if need be.” We follow 9 Falsetta and reject defendant’s claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) 10 C 11 Defendant also contends his alleged statement that he found 12 prepubescent girls attractive is not admissible under Evidence Code section 1108 because the alleged statement is not a sexual offense. 13 The People argued in the trial court that defendant committed the 14 uncharged crime of possession of child pornography in violation of section 311.11. That statute prohibits the knowing possession or 15 control of “any matter ... that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a 16 person under 18 years of age, knowing that the matter depicts a person under 18 years of age personally engaging in or simulating 17 sexual conduct.” (§ 311.11, subd. (a).) “‘Sexual conduct’ means any of the following, whether actual or simulated: sexual intercourse, oral 18 copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the 19 vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of 20 sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd 21 or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or 22 between humans and animals. An act is simulated when it gives the appearance of being sexual conduct.” (§ 311.4, subd. (d).) 23 On appeal the Attorney General argues defendant’s alleged 24 admission was offered to show defendant knowingly possessed child pornography; the admission was not offered as “stand alone 25 propensity evidence.” The Attorney General points out that the trial court’s uncharged conduct instructions referenced the crime of 26 possession of child pornography only. The trial court did not instruct the jury on an uncharged offense with regard to defendant’s alleged 27 admission. 28 //// 11 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 12 of 32 1 Defendant forfeited his appellate claim by not raising it in the trial court. (Evid. Code, § 353, subd. (a); People v. Miramontes (2010) 2 189 Cal.App.4th 1085, 1099; People v. Pierce (2002) 104 Cal.App.4th 893, 898.) Notwithstanding forfeiture, we agree with the 3 Attorney General on the merits of defendant’s claim. Defendant’s alleged statement that he found young girls attractive was not offered 4 as a sexual offense separate from possession of child pornography. Defendant’s alleged statement is probative of whether defendant 5 knowingly possessed images of nude prepubescent girls and whether the images were for the purpose of sexual stimulation of the viewer. 6 We do not consider defendant’s ineffective assistance of counsel claim because we considered the merits of his claim that his alleged 7 statement is not a sexual offense and concluded there is no error. 8 D 9 Defendant further argues that the trial court abused its discretion in admitting the uncharged sexual conduct evidence under Evidence 10 Code section 352. 11 In general, evidence of a defendant’s conduct other than what is currently charged is not admissible to prove that the defendant has a 12 criminal disposition or propensity. (Evid. Code, § 1101, subd. (a); People v. Kipp (1998) 18 Cal.4th 349, 369.) But as we have 13 explained, in a case where the defendant is charged with a sexual offense, Evidence Code section 1108 authorizes the admission of 14 evidence of the defendant’s other sexual offenses if the evidence is not inadmissible under Evidence Code section 352. 15 In enacting Evidence Code section 1108, the Legislature recognized 16 “‘sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial[, 17 thus,] often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations.’” (People 18 v. Villatoro (2012) 54 Cal.4th 1152, 1160, 1164; Falsetta, supra, 21 Cal.4th at p. 911.) Evidence Code section 1108 allows the trier of 19 fact to consider uncharged sexual conduct evidence as evidence of the defendant’s propensity to commit sexual offenses in evaluating 20 the defendant’s and the victim’s credibility and in deciding whether the defendant committed the charged sexual offense. (Villatoro, 21 supra, 54 Cal.4th at pp. 1160, 1164, 1166–1167; Falsetta, supra, 21 Cal.4th at pp. 911–912, 922.) 22 However, uncharged sexual conduct evidence is inadmissible if the 23 probative value of the evidence is substantially outweighed by the probability that its admission will necessitate undue consumption of 24 time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, §§ 352, 1108, subd. 25 (a).) The probative value of uncharged sexual conduct evidence is increased by the relative similarity between the charged and 26 uncharged offenses, the close proximity between the uncharged and charged acts, and the independent sources of evidence in each 27 offense. (Falsetta, supra, 21 Cal.4th at p. 917.) The prejudicial impact of uncharged sexual conduct evidence is reduced if the 28 uncharged act resulted in a criminal conviction and a substantial 12 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 13 of 32 1 prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the uncharged act, and that 2 the jury’s attention would not be diverted by having to determine whether defendant committed the uncharged act. (Ibid.) We review 3 a trial court’s Evidence Code section 352 determination under the deferential abuse of discretion standard. (People v. Avila (2014) 59 4 Cal.4th 496, 515 (Avila).) 5 Defendant says evidence that he looked at child pornography had no probative value because the mother’s description was too generalized 6 to permit any conclusion about the exact content of the images she saw, and labeling the images as child pornography in the absence of 7 the actual images was highly inflammatory. Defendant appears to challenge the trial court’s preliminary determination that the 8 mother’s statements to police were sufficient for a jury to find, by a preponderance of the evidence, that defendant committed a sexual 9 offense. 10 A “‘[trial] court should exclude the proffered evidence only if the “showing of preliminary facts is too weak to support a favorable 11 determination by the jury.”’” (People v. Jandres (2014) 226 Cal.App.4th 340, 353.) We review the trial court’s determination of 12 this preliminary fact for abuse of discretion. (Ibid.) 13 The prosecutor had the burden to prove the uncharged section 311.11 violation by a preponderance of the evidence. (People v. Cottone 14 (2013) 57 Cal.4th 269, 286–287; People v. Reliford (2003) 29 Cal.4th 1007, 1015–1016.) Preponderance of evidence means the 15 evidence on one side has more convincing force than that opposed to it. (People ex rel. Brown v. Tri–Union Seafoods, LLC (2009) 171 16 Cal.App.4th 1549, 1567; see People v. Williams (1920) 184 Cal. 590, 594 [preponderance means evidence on one side “‘outweighs, 17 preponderates over, is more than, the evidence on the other side, not necessarily in number of witnesses or quantity, but in its effect on 18 those to whom it is addressed’”].) 19 The trial court said the mother’s testimony at the evidentiary hearing was confusing in that she said she could not remember what she saw 20 and what defendant said. The trial court concluded, however, the fairest implication from the evidence was the mother made her 21 statements to police before she had time to reflect and fabricate. The trial court said it would be up to the jury to decide what to make of 22 the mother’s testimony. The trial court impliedly ruled a jury could reasonably find that the mother’s statements to police were credible 23 and that such statements proved by a preponderance of the evidence that defendant violated section 311.11. Based on our review of the 24 record, we cannot say the proffered evidence was too weak to support a jury finding, by a preponderance of the evidence, that defendant 25 violated section 311.11. We find no error in this regard. 26 We also conclude defendant fails to demonstrate error under Evidence Code section 352. Evidence that defendant knowingly 27 possessed images of naked young girls and that he found those girls attractive had some tendency in reason to show that defendant was 28 predisposed to engage in the charged sexual offenses. (Avila, supra, 13 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 14 of 32 1 59 Cal.4th at p. 519 [evidence that the defendant possessed child pornography was probative of his intent to commit lewd acts on the 2 minor]; People v. Memro (1995) 11 Cal.4th 786, 864–865, abrogated on a different ground in People v. McKinnon (2011) 52 Cal.4th 610, 3 638–639, fn. 18 [possession of child pornography was admissible to show the defendant had a sexual attraction to young boys and 4 intended to act on that attraction]; People v. Yovanov (1999) 69 Cal.App.4th 392, 404–405 [possession of pornographic magazines 5 containing articles about fathers having sex with their daughters indicated the defendant’s continuing interest in deviant sexual 6 activity].) To establish the count one through 15 charges of lewd and lascivious acts with the minor, the People had to prove defendant 7 committed prohibited acts with the intent of arousing, appealing to, or gratifying his or the minor’s lust, passions, or sexual desires. (§ 8 288, subds. (a), (c).) To establish the count 16 charge, the People had to prove defendant knowingly used the minor to pose for a 9 photograph involving sexual conduct, such as the exhibition of the genitals or pubic or rectal area for the purpose of the viewer’s sexual 10 stimulation. (§ 311.4, subd. (c).) Defendant’s commission of the uncharged section 311.11 offense is probative of whether defendant 11 possessed the requisite lewd intent in counts one through 15 and, with regard to count 16, whether he posed the minor for a prohibited 12 sexual purpose. (Avila, supra, 59 Cal.4th at p. 519; Memro, supra, 11 Cal.4th at pp. 864–865.) 13 The charged and uncharged acts involve sexual interest in young 14 girls or sexual gratification from conduct involving such girls. The similarity between the charged and uncharged offenses is a factor for 15 the trial court to consider in weighing the probative value and prejudicial impact of the uncharged conduct evidence. (Falsetta, 16 supra, 21 Cal.4th at p. 917; People v. Robertson (2012) 208 Cal.App.4th 965, 991 (Robertson).) 17 Evidence of the uncharged offense is also probative because 18 defendant denied engaging in any sexual acts with the minor. At trial, defendant’s counsel accused the minor of lying. He argued the 19 minor’s behavior did not indicate she had been sexually abused. He pointed out inconsistencies in the minor’s reports concerning 20 molestation. He also argued there was no semen evidence, no trace of the photographs the minor said defendant took of her, and no 21 corroborating witness. Uncharged sexual offense evidence is highly probative where the defendant denies the charged offense occurred 22 and there is no forensic evidence proving the charged offense occurred. (Robertson, supra, 208 Cal.App.4th at p. 993; People v. 23 Hollie (2010) 180 Cal.App.4th 1262, 1275; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 (Waples).) 24 Defendant argues the uncharged act is not similar to the charged 25 offenses because the minor was not a prepubescent girl when defendant allegedly molested her. Defendant cites the minor’s 26 testimony that he began to molest her when she was 11 years old, and the molestation continued until she was 15 years old. However, 27 defendant fails to cite the portion of the record supporting his conclusion about when the minor reached puberty. We will not 28 consider claims made without citation to the record. (People v. Myles 14 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 15 of 32 1 (2012) 53 Cal.4th 1181, 1222, fn. 14 (Myles); Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743.) 2 Defendant further claims, in summary fashion, that the uncharged 3 conduct is remote in time. Defendant forfeited the claim by failing to develop it with analysis and citation to authority. (People v. Freeman 4 (1994) 8 Cal.4th 450, 482, fn. 2; People v. Galambos (2002) 104 Cal.App.4th 1147, 1159.) Were we to consider the claim on its 5 merits, we could not say the uncharged conduct (which occurred approximately 11 years prior to trial and about five years before 6 defendant began to inappropriately touch the minor) is too remote or the gap between the uncharged act and the beginning of the charged 7 conduct is so significant as to reduce the probative value of the uncharged conduct evidence. (People v. Ewoldt (1994) 7 Cal.4th 380, 8 405 [uncharged act occurred 12 years prior to trial]; People v. Branch (2001) 91 Cal.App.4th 274, 278, 281, 284 [uncharged sexual acts 9 committed over 30 years before the charged offenses occurred were properly admitted under Evidence Code sections 1101 and 1108]; 10 Waples, supra, 79 Cal.App.4th at pp. 1392–1393, 1395 [uncharged sexual acts that occurred 18 to 25 years before the charged offenses 11 were not too remote for purposes of Evidence Code section 352]; People v. Soto (1998) 64 Cal.App.4th 966, 977–978, 990–992 12 [uncharged sexual conduct that occurred 20 to 30 years before the trial were properly admitted under Evidence Code sections 1108 and 13 352].) 14 Defendant did not argue in the trial court that the uncharged conduct evidence is unduly prejudicial because he was not convicted of that 15 conduct. Thus, the trial court did not address whether the lack of a conviction for the uncharged conduct would unduly prejudice 16 defendant. The claim is forfeited. (People v. Abel (2012) 53 Cal.4th 891, 924 [“‘What is important is that the objection fairly inform the 17 trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be 18 excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling.’”].) 19 Nonetheless, we would reject the claim on its merits. We found 20 nothing in the record showing the jury was made aware of or considered the lack of a conviction for the uncharged offense. The 21 prosecutor and defense counsel’s closing argument discussions about the uncharged conduct evidence do not refer to whether defendant 22 was prosecuted or punished for the uncharged act. Additionally, the trial court instructed the jury on the limited use of uncharged conduct 23 evidence. The trial court also instructed the jury on the elements of each charged offense, and said the People must prove each charge 24 beyond a reasonable doubt and the uncharged conduct evidence does not, by itself, prove defendant was guilty of the charged offenses. As 25 instructed, the jury was not permitted to convict defendant of the current charges simply because he previously committed a sexual 26 offense. The instructions counterbalanced any risk the jury might punish defendant for his uncharged act. (Falsetta, supra, 21 Cal.4th 27 at p. 920; People v. Frazier (2001) 89 Cal.App.4th 30, 42.) 28 //// 15 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 16 of 32 1 Defendant has not demonstrated that the trial court abused its discretion in admitting the uncharged sexual conduct evidence. 2 3 (ECF No. 13-7 at 6-15.) 4 B. Discussion 5 1. Evidentiary Admission 6 Fundamentally, except as to the due process challenge, petitioner’s first claim contends 7 the state court erred in its application of state evidentiary rules, specifically California Evidence 8 Code sections 352 and 1108. It is well established, however, that alleged errors of state law do not 9 warrant federal habeas relief. E.g., Estelle, 502 U.S. at 67. Even if erroneous, the state court’s 10 evidentiary rulings under sections 352 and 1108 of the California Evidence Code are grounds for 11 federal habeas relief only if the error rendered the state proceedings so fundamentally unfair as to 12 violate due process. Drayden v. White, 232 F.3d 704, 710 (9th Cir. 2000); Jammal v. Van de 13 Kamp, 926 F.2d 918, 919 (9th Cir. 1991); see also Estelle, 502 U.S. at 68. 14 To the extent petitioner challenges California Evidence Code section 1108 as violating 15 due process on its face, the claim fails. An evidentiary rule allowing admission of prior sexual 16 offenses to show propensity to commit a charged sexual offense does not violate due process if 17 the evidence remains subject to balancing for prejudice. See United States v. LeMay, 260 F.3d 18 1018, 1026-27 (9th Cir. 2001) (holding there is nothing “inherently unfair” about Federal Rule of 19 Evidence 414 allowing prior acts of child molestation to show propensity). As noted by the state 20 appellate court in rejecting petitioner’s claim, propensity evidence admitted under California 21 Evidence Code section 1108 remains subject to balancing for prejudice under California Evidence 22 Code section 352. (ECF No. 13-7 at 7.) This saves section 1108 from a facial due process 23 challenge. See LeMay, 260 F.3d at 1026-27; Baker v. Pliler, No. C 02-5210 VRW, 2004 U.S. 24 Dist. LEXIS 22035, *62-63 (N.D. Cal. Oct. 5, 2004) (rejecting facial due process claim to 25 California Evidence Code section 1108 based on the balancing for prejudice of California 26 Evidence Code section 352). 27 Petitioner does not develop an argument explaining how his due process rights were 28 violated. He also does not identify any Supreme Court holding supporting his claim. A federal 16 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 17 of 32 1 court sitting in habeas corpus should not grant relief based on petitioner’s vague references to the 2 principles of due process. 3 The Supreme Court “has never expressly held that it violates due process to admit other 4 crimes evidence for the purpose of showing conduct in conformity therewith, or that it violates 5 due process to admit other crimes evidence for other purposes without an instruction limiting the 6 jury’s consideration of the evidence to such purposes.” Garceau v. Woodford, 275 F.3d 769, 774 7 (9th Cir. 2001), overruled on other grounds by 538 U.S. 188 (2003); see also Estelle, 502 U.S. at 8 75 n. 5 (1991) (declining to reach the issue); Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008) 9 (denying the petitioner’s habeas claim that the introduction of propensity evidence violated his 10 due process rights under the Fourteenth Amendment because the asserted right has not been 11 clearly established by the Supreme Court, as required by AEDPA); Alberni v. McDaniel, 458 12 F.3d 860, 863-67 (9th Cir. 2006) (same). 13 Since it is an open question under Supreme Court precedent whether the admission of 14 propensity evidence may violate due process, federal habeas relief cannot lie for petitioner’s 15 claim that the admission of his wife’s statements about seeing child pornography on his computer, 16 and that he told her he found prepubescent girls attractive, violated due process. See Foote v. Sue 17 Del Papa, 486 F.3d 1166, 1168-69 (9th Cir. 2007) (holding that under the AEDPA, a claim fails if 18 it implicates an “open question” in the Supreme Court’s jurisprudence). On the same basis, the 19 state court’s rejection of the due process claim in petitioner’s first ground for relief is not contrary 20 to or an unreasonable application of clearly established United States Supreme Court precedent. 21 See 28 U.S.C. § 2254(d). 22 2. Ineffective Assistance of Counsel 23 Petitioner contends his trial counsel rendered ineffective assistance in failing to object to 24 the admission of evidence of his statement that he found young girls attractive. (ECF No. 1 at 10.) 25 This evidence was admitted in the form of an audio recording of statements the mother provided 26 to police. (ECF No.13-7 at 7.) The mother identified her voice on the audio recordings. (Id.) In 27 one recorded interview, the mother said she confronted petitioner about seeing child pornography 28 on his computer and he did not deny it. (Id.) At a subsequent interview, the mother said when she 17 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 18 of 32 1 confronted petitioner about the child pornography she saw, he said he found girls that age 2 attractive. (Id.) Petitioner contends his trial counsel should have objected to the admission of the 3 latter evidence of the statement because a “mere statement of one’s thoughts” does not constitute 4 a crime under California Evidence Code section 1108. (ECF No. 1 at 10.) 5 To demonstrate a denial of the Sixth Amendment right to the effective assistance of 6 counsel, a petitioner must establish that counsel’s performance fell below an objective standard of 7 reasonableness, and that he suffered prejudice from the deficient performance. Strickland v. 8 Washington, 466 U.S. 668, 690 (1984). Deficient performance requires a showing that counsel’s 9 performance was “outside the wide range of professionally competent assistance.” Id. at 687 & 10 697. Prejudice is found where there is a reasonable probability that, but for counsel’s 11 unprofessional errors, the result of the proceeding would have been different. Id. 12 Here, the state court reasonably rejected petitioner’s ineffective assistance claim premised 13 on counsel’s failure to object to the challenged statement that petitioner said he found young girls 14 attractive. Although petitioner may have an arguable basis to claim that his alleged statement does 15 not constitute a crime under California law such that it was itself an uncharged offense within the 16 meaning of section 1108 of the California Evidence Code, his presentation of the ineffective 17 assistance claim fails to recognize the state appellate court upheld admission of this statement not 18 as an independent crime under section 1108, but rather, as evidence he knowingly possessed child 19 pornography, which was the sole independent crime admitted under section 1108. (ECF No. 13- 7 20 at 9 [“Defendant’s alleged statement that he found young girls attractive was not offered as a 21 sexual offense separate from possession of child pornography. Defendant’s alleged statement is 22 probative of whether defendant knowingly possessed images of nude prepubescent girls and 23 whether the images were for the purpose of sexual stimulation of the viewer.”].) The record 24 supports the state court’s conclusion that the statement at issue was not itself admitted as an 25 independent crime under section 1108. Significantly, the jury instructions on uncharged sexual 26 conduct referred to the crime of possession of child pornography, only, as the sole identified 27 uncharged offense. (ECF No. 13-3 at 146-47 (IRT 414-15).) The jury instructions on uncharged 28 sexual conduct did not inform the jury that the statement at issue was an uncharged offense. (Id.) 18 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 19 of 32 1 Under these circumstances, petitioner fails to demonstrate a successful objection under 2 California Evidence Code section 1108, specifically, to the admission of his alleged statement he 3 found young girls attractive would have resulted in exclusion of the evidence. Thus, petitioner 4 fails to show deficient performance or that prejudice under Strickland, 466 U.S. at 690, resulted. 5 II. Admission of CSAAS evidence 6 In his second ground, petitioner claims the trial court’s decision to allow the prosecution’s 7 expert witness, Dr. Urquiza, to testify regarding Child Sexual Abuse Accommodation Syndrome 8 (CSAAS) violated his Fourteenth Amendment due process rights. Petitioner argues the CSAAS 9 tool is “junk science” without general acceptance in the relevant scientific community. (ECF No. 10 1 at 12.) Petitioner asserts the CSAAS evidence is irrelevant and deals with matters not beyond 11 common knowledge of jurors. (Id.) Petitioner claims his trial counsel’s failure to object to the 12 admission of CSAAS evidence on due process grounds constituted ineffective assistance of 13 counsel. (ECF No. 1 at 12-13.) 14 A. State Court Opinion 15 The California Court of Appeal rejected this claim on direct appeal: 16 A 17 Defendant moved in limine to exclude the proposed testimony of Dr. Urquiza under Evidence Code section 352. Defendant argued Dr. 18 Urquiza’s proposed testimony would not assist the jury because CSAAS was a “very vague theory” and victims exhibited different 19 symptoms. Defendant said it was up to the jury, not Dr. Urquiza, to determine whether the minor was credible and whether defendant 20 molested the minor. Defendant also argued Dr. Urquiza’s proposed testimony was not relevant because CSAAS was based on cases 21 where corroborative evidence was present, but there was no corroborative evidence in this case. 22 The People countered that Dr. Urquiza’s proposed testimony would 23 give the jury tools to understand whether the minor was credible. The People offered Dr. Urquiza’s testimony to dispel myths that child 24 sexual abuse victims disclosed the abuse immediately and did not continue to love their abuser. 25 The trial court admitted Dr. Urquiza’s testimony. It said the doctor’s 26 testimony would help the jury understand why the minor did not disclose the abuse for a long time and why she professed feelings of 27 love for her abuser. The trial court subsequently instructed the jury, pursuant to CALCRIM No. 1193, that Dr. Urquiza’s testimony about 28 CSAAS was not evidence that defendant committed any of the 19 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 20 of 32 1 charged crimes. The trial court told the jury to consider Dr. Urquiza’s testimony only for the purpose of deciding whether the minor’s 2 conduct was not inconsistent with the conduct of someone who had been molested, and in evaluating the minor’s credibility. 3 The jury heard the testimony of the minor and her mother before 4 hearing from Dr. Urquiza. The minor and her mother’s testimonies showed the minor waited four years before disclosing that defendant 5 had sexually abused her. The minor testified she still loved defendant even though he had molested her. The mother testified, on cross- 6 examination, that the minor never seemed uncomfortable or fearful with defendant, and the minor did not use the lock on her bedroom 7 door. The mother said she doubted the minor’s allegations of sexual abuse because the minor enjoyed spending time with defendant, 8 always hugged defendant, and wanted to sit next to him on the couch. 9 Dr. Urquiza explained CSAAS was a tool developed to educate therapists about common characteristics of children who had been 10 sexually abused. Dr. Urquiza clarified that CSAAS was not a test or diagnostic tool to determine whether a child had in fact been 11 molested. He said CSAAS assumed a child had been sexually abused. 12 Dr. Urquiza described the five parts of CSAAS: secrecy, 13 helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and retraction. He said a child sexual abuse 14 victim may not report the abuse for a variety of reasons, including feelings of shame and fear of losing the affection the abuser 15 provided. Dr. Urquiza explained it was not uncommon for a child sexual abuse victim to love her abuser despite the abuse. 16 Dr. Urquiza told the jury research showed a child sexual abuse victim 17 typically did not protect herself from abuse when the abuser was someone with whom the victim had an ongoing relationship. And it 18 was a myth that a child sexual abuse victim will take measures to protect herself. 19 With regard to accommodation, Dr. Urquiza explained some children 20 coped with sexual abuse by disengaging from their feelings. Those children described their experience of being sexually abused without 21 emotion or with a flat affect. 22 With regard to delayed and unconvincing disclosure, Dr. Urquiza said it was common for a child sexual abuse victim to delay reporting 23 the abuse for a significant period of time, and a child victim usually disclosed later if she lived in the same house as the abuser. Dr. 24 Urquiza further explained that child victims sometimes provided vague and brief accounts initially, and then gave more details when 25 they felt more comfortable about disclosing. Dr. Urquiza also said it was a myth that children wanted to remember what happened to them 26 and, thus, remembered details about their abuse. He said children typically had difficulty remembering the frequency, duration, and 27 details of an act, especially if an act happened many times and they kept the abuse secret. 28 20 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 21 of 32 1 With regard to recantation, Dr. Urquiza said research showed 20 to 25 percent of children who disclosed later recanted, and a child 2 sexual abuse victim may recant because of family pressure or because the child still loved the abuser. 3 B 4 Evidence Code section 801, subdivision (a), permits the introduction 5 of testimony by a qualified expert when that testimony is related to a subject that is sufficiently beyond common experience that the 6 opinion of the expert would assist the trier of fact. “‘[T]he admissibility of expert opinion is a question of degree. The jury need 7 not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion 8 testimony would ever be heard. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be 9 admitted whenever it would ‘assist’ the jury. It will be excluded only when it would add nothing at all to the jury’s common fund of 10 information, i.e., when “the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion 11 as intelligently as the witness.”’” (People v. McAlpin (1991) 53 Cal.3d 1289, 1299–1300 (McAlpin).) We review a trial court’s 12 decision to admit expert testimony for abuse of discretion. (Id. at p. 1299; People v. Wells (2004) 118 Cal.App.4th 179, 186.) 13 This and other Courts of Appeal have concluded that although 14 inadmissible to show that a child has been sexually abused, CSAAS evidence is admissible for the limited purpose of dispelling 15 misconceptions about how child victims react to sexual abuse. (People v. Perez (2010) 182 Cal.App.4th 231, 245 (Perez); In re S.C. 16 (2006) 138 Cal.App.4th 396, 418; People v. Patino (1994) 26 Cal.App.4th 1737, 1744 (Patino); People v. Housley (1992) 6 17 Cal.App.4th 947, 954–957 (Housley); People v. Harlan (1990) 222 Cal.App.3d 439, 449–450; People v. Bowker (1988) 203 Cal.App.3d 18 385, 391–392 (Bowker) [setting forth limitations on the admission of CSAAS evidence]; People v. Gray (1986) 187 Cal.App.3d 213, 217– 19 218 (Gray).) “‘Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to 20 explain the emotional antecedents of abused children’s seemingly self-impeaching behavior.’” (McAlpin, supra, 53 Cal.3d at p. 1301.) 21 The California Supreme Court in McAlpin, supra, 53 Cal.3d 1289 and People v. Brown (2004) 33 Cal.4th 892 (Brown) approved 22 Bowker, supra, 203 Cal.App.3d 385 and other cases permitting limited admissibility of CSAAS evidence. (Brown, supra, 33 Cal.4th 23 at pp. 905–907; McAlpin, supra, 53 Cal.3d at pp. 1301–1302.) 24 Defendant does not contend the trial court admitted CSAAS evidence outside the bounds articulated in Bowker. Instead, he argues CSAAS 25 evidence is not admissible because the premise underlying its admissibility—that people commonly believe certain myths about 26 child sexual abuse—is no longer valid. Defendant claims intense media discussion about child sexual assault cases has rendered the 27 subjects addressed by CSAAS within the common knowledge of the typical juror; thus, CSAAS is no longer the proper subject of expert 28 opinion testimony. Defendant also claims CSAAS is junk science 21 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 22 of 32 1 and is not generally accepted in the relevant scientific community as a diagnostic tool for making child sexual abuse determinations. 2 Defendant fails to cite any portion of the record supporting his 3 assertions that misconceptions about child sexual abuse and child sexual abuse victims no longer exist, that the subjects CSAAS 4 addresses are sufficiently within common experience that expert opinion would not assist the trier of fact, or that CSAAS is junk 5 science. For this reason, we need not consider his claims. (Myles, supra, 53 Cal.4th at p. 1222, fn. 14; Miller v. Superior Court, supra, 6 101 Cal.App.4th at p. 743) Additionally, defendant did not raise the claims he urges on appeal in the trial court. He did not, therefore, 7 preserve the claims for appellate review. (Evid. Code, § 353, subd. (a); People v. Seijas (2005) 36 Cal.4th 291, 302.) 8 In any event, we found no evidence in the record supporting 9 defendant’s assertions. To the contrary, Dr. Urquiza testified people he talked to in his work still did not understand the common 10 characteristics exhibited by victims of child sexual abuse. For example, most people did not understand why a child sexual abuse 11 victim may love her abuser. Dr. Urquiza opined that sexual abuse cases receiving media attention did not educate the public about the 12 experience of child sexual abuse victims. 13 Moreover, the California Supreme Court has recognized that CSAAS expert testimony is needed to disabuse jurors of commonly held 14 misconceptions about child sexual abuse. (Brown, supra, 33 Cal.4th at pp. 905–906.) This court recognized the same need in People v. 15 Sandoval (2008) 164 Cal.App.4th 994 and In re S.C., supra, 138 Cal.App.4th 396. And in 2010, the Sixth District Court of Appeal 16 rejected claims nearly identical to those defendant raises in this case. (Perez, supra, 182 Cal.App.4th at pp. 243–245; see Gray, supra, 187 17 Cal.App.3d at p. 220 [“‘[T]he subject of child molestation and more particularly, the sensitivities of the victims, is knowledge sufficiently 18 beyond common experience such that the opinion of an expert would be of assistance to the trier of fact.’”].) 19 Defendant relies principally on Commonwealth v. Dunkle (1992) 529 20 Pa. 168 [602 A.2d 830] (Dunkle) to argue CSAAS has not gained general acceptance in the scientific community, is not probative, and 21 does not deal with subjects beyond common experience such as to justify expert opinion testimony. More than 20 years ago, Dunkle 22 held that expert testimony concerning typical behavior patterns exhibited by sexually abused children is inadmissible because such 23 evidence was not generally accepted in the field in which it belonged, was not probative of child sexual abuse, and concerned subjects 24 which were within the range of common experience. (Id. at pp. 834– 838.) 25 We do not follow Dunkle for a number of reasons. Effective August 26 28, 2012, Pennsylvania permits expert testimony that will assist the trier of fact in understanding victim responses to sexual violence and 27 the impact of sexual violence on victims during and after being assaulted. (42 Pa.C.S. § 5920, subd. (b).) It remains to be seen 28 whether CSAAS evidence is admissible in Pennsylvania under the 22 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 23 of 32 1 new statute. Additionally, as an out-of-state case, Dunkle is not binding on us. (People v. Troyer (2011) 51 Cal.4th 599, 610.) More 2 importantly, the California Supreme Court’s approval of Bowker and McAlpin in Brown, supra, 33 Cal.4th 892, implicitly rejected the 3 opinion expressed in Dunkle that CSAAS evidence is inadmissible. We adhere to the Supreme Court’s view that CSAAS expert 4 testimony is admissible. (Brown, supra, 33 Cal.4th at pp. 905–906.) 5 People v. Robbie (2001) 92 Cal.App.4th 1075, another case defendant cites, deals with profile evidence, in particular testimony 6 about the conduct and characteristics of those who commit a certain type of rape. (Id. at pp. 1084–1085.) Robbie does not discuss CSAAS 7 evidence or the misconceptions relating to child sexual abuse victims. 8 We also found no evidence in the record that CSAAS is junk science 9 and has been rejected by the scientific community or its creator Dr. Roland Summit. Dr. Urquiza testified there was a lot of research 10 supporting CSAAS. Dr. Urquiza said four individuals wrote two published articles criticizing the unconvincing disclosure and 11 retraction aspects of CSAAS. The doctor did not testify that CSAAS had been rejected in the scientific community or by Dr. Summit. 12 Defendant did not present in the trial court any of the journal articles he cites in his appellate opening brief. With regard to whether 13 CSAAS is generally accepted as a diagnostic tool for making child sexual abuse determinations, Dr. Urquiza clearly stated CSAAS was 14 not a diagnostic tool for determining whether a child had been sexually abused. And the doctor said he did not know the defendant 15 and the alleged victim in this case and was not giving an opinion about whether anyone was sexually abused. 16 It appears defendant raises a federal due process claim, although he 17 does not clearly articulate the basis for that claim. We understand defendant to contend that the admission of CSAAS evidence violated 18 his right to due process of law and a fair trial because that evidence is not relevant to the charged offenses. We reject such claim. CSAAS 19 evidence is relevant to the minor’s credibility, which defendant vigorously challenged at the trial. (McAlpin, supra, 53 Cal.3d at p. 20 1302; In re S.C., supra, 138 Cal.App.4th at p. 418; Patino, supra, 26 Cal.App.4th at p. 1745.) The admission of relevant evidence does not 21 violate a defendant’s due process rights. (Estelle v. McGuire (1991) 502 U.S. 62, 68–70 [116 L.Ed.2d 385, 396–397]; Patino, supra, 26 22 Cal.App.4th at p. 1747.) The limited admissibility of CSAAS expert testimony is well-settled. (In re S.C., supra, 138 Cal.App.4th at p. 23 418; Housley, supra, 6 Cal.App.4th at p. 957.) And defendant has not shown how the admission of CSAAS evidence in this case infringed 24 upon his constitutional right to due process of law or a fair trial. 25 Defendant also argues his trial counsel was ineffective in not raising a due process claim. We do not address defendant’s 26 ineffectiveassistance of counsel claim because he has not shown the trial court erred in admitting CSAAS expert testimony. 27 28 (ECF No.13-7 at 15-21.) 23 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 24 of 32 1 B. Discussion 2 1. Evidentiary Admission 3 Petitioner’s challenge to the CSAAS evidence as junk science and improper expert 4 testimony seeks to show the evidence should have been excluded as irrelevant or overly 5 prejudicial. The Supreme Court, however, has made very few rulings regarding the admission of 6 evidence, and, in particular, “has not yet made a clear ruling that admission of irrelevant or 7 overtly prejudicial evidence constitutes a due process violation[.]” Holley v. Yarborough, 568 8 F.3d 1091, 1101 (9th Cir. 2009). The Ninth Circuit has upheld the use of CSAAS evidence in 9 child abuse cases against due process challenges “when the testimony concerns general 10 characteristics of victims and is not used to opine that a specific child is telling the truth.” Brodit 11 v. Cambra, 350 F.3d 985, 991 (9th Cir. 2003). 12 Dr. Urquiza’s testimony described CSAAS in general terms, addressing the general 13 characteristics of victims, and he did not opine that the specific minor in this case was telling the 14 truth. (ECF No. 13-3 at 17-64 (IIRT 285-332).) Dr. Urquiza testified he did not know the minor 15 victim in this case. (ECF No. 13-3 at 37 (IIRT 305).) The trial court instructed the jury Dr. 16 Urquiza’s testimony about CSAAS was not evidence that petitioner committed any of the charged 17 crimes, and to consider Dr. Urquiza’s testimony only for the purpose of evaluating the minor’s 18 credibility and in deciding whether the minor’s conduct was not inconsistent with the conduct of 19 someone who had been molested. (ECF No. 13-3 at 148 (IIRT 416).) Thus, Dr. Urquiza’s 20 testimony complied with the limits set forth by the Ninth Circuit in Brodit, 350 F.3d at 991. 21 Moreover, petitioner cites no Supreme Court authority to support his claim that the trial 22 court’s decision to admit the CSAAS evidence violated his due process rights. Because the 23 Supreme Court has never ruled that admission of irrelevant or overtly prejudicial evidence 24 constitutes a due process violation,” Holley, 568 F.3d at 1101, petitioner’s claim implicates an 25 “open question” in the Supreme Court’s jurisprudence for which federal habeas corpus relief is 26 not available. See 28 U.S.C. § 2254(d); Foote, 486 F.3d at 1168-69. 27 //// 28 //// 24 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 25 of 32 1 2. Ineffective Assistance of Counsel 2 Defense counsel challenged the introduction of the CSAAS evidence under California 3 Evidence Code section 352 but did not specifically argue the evidence violated due process. (ECF 4 No. 13-7 at 15.) Petitioner claims his trial attorney rendered ineffective assistance in failing to 5 object to the admission of CSAAS evidence on due process grounds specifically. (ECF No. 1 at 6 12.) 7 This claim fails because the California Court of Appeal reasonably determined the 8 admission of the CSAAS evidence did not violate due process. (ECF No. 13-7 at 21, citing 9 Estelle, 502 U.S. at 68-70.) See also Brodit, 350 F.3d at 991. Since petitioner cannot show the 10 evidence violated due process such that the trial court would have sustained an objection brought 11 on constitutional grounds, he fails to show that defense counsel’s performance was deficient, or 12 that prejudice resulted. See Strickland, 466 U.S. at 690. 13 III. Hypothetical Question to the Expert Witness 14 Petitioner claims the prosecutor improperly posed to Dr. Urquiza a hypothetical question 15 that mirrored the facts of the case. Defense counsel did not object, and Dr. Urquiza answered the 16 question. Petitioner claims the admission of this evidence invaded the province of the jury and 17 violated his rights under the Sixth and Fourteenth Amendments. (ECF No. 10 at 14-15.) 18 A. State Court Opinion 19 The California Court of Appeal rejected this claim on direct appeal: 20 A 21 The prosecutor gave Dr. Urquiza the following hypothetical and asked the doctor to give his opinion as to whether the behavior in the 22 hypothetical was common or unusual behavior for a victim of child sexual abuse: “We had an 11–year–old girl who had been molested 23 for four years at the hands of the only father she’s ever really known, not a biological father, but the only father she’s ever known. [¶] At 24 the age of 15, discloses that she’s been abused regularly for the past four years, maintains that she still loves her father very much, wants 25 to see him home, doesn’t recant, but tells us that her mother has actually been very supportive of her and has always told her to tell 26 the truth, and comes in and testifies with little emotion. [¶] Is that uncommon for a victim of child sexual abuse?” Defendant’s trial 27 counsel did not object to the prosecutor’s question. 28 //// 25 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 26 of 32 1 Dr. Urquiza responded that CSAAS relates to common characteristics, not characteristics that occur in every single case. He 2 said the hypothetical contained a lot of the common characteristics: secrecy (not disclosing for four years), helplessness (an ongoing 3 relationship with someone who was bigger and stronger, and flat affect as a way to manage the victim’s feelings), and delayed 4 disclosure. Dr. Urquiza clarified he was not saying someone was abused. He said he did not know who the alleged victim was, did not 5 know anything about this case, had never met defendant, and was not at trial to provide any opinion as to whether anyone in that case had 6 been sexually abused. 7 B 8 It is improper for an expert to apply CSAAS to the facts of the case and conclude a particular child was molested. (Bowker, supra, 203 9 Cal.App.3d at p. 393.) It is also improper for an expert to testify about CSAAS in a manner that directly coincides with the facts of the case. 10 (Id. at p. 394; Gray, supra, 187 Cal.App.3d at p. 218; People v. Roscoe (1985) 168 Cal.App.3d 1093, 1100 [expert testimony must 11 be limited to a discussion of victims as a class; the expert must not discuss the witness in the case].) It is error to admit a CSAAS 12 expert’s response to hypothetical questions that closely track the facts of the case. (People v. Jeff (1988) 204 Cal.App.3d 309, 337– 13 339.) 14 We agree with defendant that the prosecutor’s hypothetical question was improper. However, we conclude no prejudice resulted 15 therefrom because it is not reasonably probable a verdict more favorable to the defendant would have resulted in the absence of the 16 inadmissible evidence. (People v. Bledsoe (1984) 36 Cal.3d 236, 252 [applying People v. Watson (1956) 46 Cal.2d 818 standard of review 17 to erroneous admission of expert testimony]; Bowker, supra, 203 Cal.App.3d at p. 395 [same].) The jury could not have reasonably 18 understood from Dr. Urquiza’s response to the prosecutor’s hypothetical that the minor was sexually abused. The trial court 19 instructed the jury that Dr. Urquiza’s testimony was not evidence that defendant committed any of the charged crimes. The doctor testified 20 he did not know the alleged victim, he did not treat her, and he was not rendering an opinion about whether someone was sexually 21 abused. Not knowing who the alleged victim in this case was and not knowing the facts of this case, Dr. Urquiza said he had no basis for 22 rendering an opinion about whether the alleged victim was sexually abused. Dr. Urquiza also told the jury CSAAS was not a diagnostic 23 tool to determine whether a child had in fact been molested. The prosecutor’s closing argument repeated that Dr. Urquiza’s testimony 24 was not presented for the purpose of determining whether or not the minor had been sexually abused. 25 Under these circumstances, the jury could not reasonably understand 26 that Dr. Urquiza was providing an opinion about whether the minor was sexually abused. Improper admission of evidence is not 27 reversible error absent a demonstration of prejudice. (Cal. Const., art. VI, § 13 [“No judgment shall be set aside, or new trial granted, in 28 any cause, on the ground of misdirection of the jury, or of the 26 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 27 of 32 1 improper admission or rejection of evidence ... unless, after an examination of the entire cause, including the evidence, the court 2 shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”]; Evid. Code, § 353.) 3 We need not consider defendant’s related ineffective assistance of 4 counsel claim because we conclude the erroneous admission of evidence did not result in prejudice to defendant. (People v. Maury 5 (2003) 30 Cal.4th 342, 389 [to establish trial counsel was ineffective, the defendant must prove trial counsel’s deficient representation 6 resulted in prejudice to the defendant]; Strickland v. Washington (1984) 466 U.S. 668, 687.) 7 8 (ECF No. 13-7 at 22-24.) 9 B. Discussion 10 1. Evidentiary Admission 11 Petitioner has not cited any Supreme Court precedent establishing that admission of a 12 hypothetical question to a CSAAS expert that tracks the facts of the case amounts to a due 13 process violation. As set forth, the Supreme Court has never ruled that the admission of irrelevant 14 or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of 15 a writ of habeas corpus. Holley, 568 F.3d at 1101. 16 Although the state appellate court found it was error under state law to allow Dr. Uquiza 17 to answer a hypothetical question that mirrored the facts of the case, the court implicitly rejected 18 petitioner’s due process claim because it found petitioner could not show he was prejudiced by 19 the improperly admitted evidence. As set forth, a federal writ is not available for alleged error in 20 the interpretation or application of state law. E.g., Estelle, 502 U.S. at 67-68. An error of state 21 evidentiary law violates federal due process only if “the evidence so fatally infected the 22 proceedings as to render them fundamentally unfair.” Jammal, 926 F.2d at 919. 23 The improper admission of evidence may render a trial fundamentally unfair if “there are 24 no permissible inferences the jury may draw from the evidence.” Jammal, 926 F. 2d at 920. A 25 writ of habeas corpus will be granted for an erroneous admission of evidence “only where the 26 ‘testimony is almost entirely unreliable and . . . the factfinder and the adversary system will not 27 be competent to uncover, recognize, and take due account of its shortcomings.’” Mancuso v. 28 Olivarez, 292 F.3d 939, 956 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 899 27 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 28 of 32 1 (1983)). Even if a petitioner makes a showing that there were no permissible inferences to be 2 drawn from the challenged evidence, habeas corpus relief may not be granted unless the 3 admission of the evidence had a “substantial and injurious effect” or influence upon the jury’s 4 verdict. Brecht v. Abrahamson, 507 U.S. 619, 622 (1993). 5 Here, Dr. Urquiza did not testify that abuse occurred under the hypothetical 6 circumstances, but rather, that the hypothetical contained a lot of common characteristics of 7 CSAAS. (ECF No. 13-3 at 35-36 (IIRT 303-04).) Although the hypothetical tracked the facts of 8 the case, the evidence did not violate due process because the testimony concerned general 9 characteristics of victims and Dr. Urquiza did not give an opinion as to whether the minor victim, 10 specifically, was telling the truth. See Brodit, 350 F.3d at 991. The evidence also did not violate 11 due process because the jury could have made permissible inferences about the minor’s 12 credibility from the hypothetical question. See Jammal, 926 F. 2d at 920. 13 Moreover, the state court reasonably found the admission of the hypothetical question was 14 not sufficiently prejudicial to petitioner where the trial court instructed the jury that Dr. Urquiza’s 15 testimony was not evidence that petitioner committed any of the charged crimes, and the doctor 16 testified he did not know the alleged victim, did not treat her, and was not rendering an opinion as 17 to whether she was sexually abused. (ECF No. 13-3 at 148 (IIRT 416).) Dr. Urquiza testified 18 CSAAS was not a diagnostic tool to determine whether a child had in fact been molested. (ECF 19 No. 13-3 at 10-11 (IIRT 284-85).) The prosecutor’s closing argument repeated that Dr. Urquiza’s 20 testimony was not presented for the purpose of determining whether the minor had been sexually 21 abused. (ECF No. 13-3 at 169 (IIRT 437).) Under these circumstances, viewed in light of the 22 record as a whole, the admission of the evidence cannot be said to have had a “substantial and 23 injurious effect” or influence on the jury’s verdict. See Brecht, 507 U.S. at 622. 24 2. Ineffective Assistance of Counsel 25 It is not clear whether petitioner asserted a separate claim of ineffective assistance of 26 counsel in connection with his third ground for relief. (ECF No. 1 at 14-15 (citing the Sixth 27 Amendment and stating that counsel did not object without stating counsel should have objected 28 or that counsel rendered ineffective assistance.) Petitioner asserted ineffective assistance of 28 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 29 of 32 1 counsel in connection with this ground for relief when he presented the claim on direct appeal. 2 (ECF No. 13-4 at 69 (AOB at 60).) The pro se petition is liberally construed. See Boag v. 3 MacDougall, 454 U.S. 364, 365 (1982). Since petitioner brought this claim under the Sixth 4 Amendment, the petition should be construed to include an ineffective assistance of counsel 5 claim. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (holding that liberal construction 6 of pro se prisoner habeas petitions is especially important with regard to which claims are 7 presented). 8 Assuming petitioner did assert an ineffective assistance of counsel claim in connection 9 with his third ground for relief, such a claim fails for the reasons set forth in the preceding 10 section, in that the state appellate court reasonably rejected the claim for lack of prejudice. See 11 Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (holding that a reviewing court “need not 12 determine whether counsel’s performance was deficient before examining the prejudice suffered 13 by the defendant as a result of the alleged deficiencies” if it is easier to dispose of an 14 ineffectiveness claim on the ground of lack of sufficient prejudice) (quoting Strickland, 466 U.S. 15 at 697), amended and superseded on other grounds, 385 F.3d 1247 (9th Cir. 2004). Because, as 16 set forth in the preceding section, petitioner cannot show the outcome of his trial would have been 17 different had the evidence at issue not been admitted, petitioner is not entitled to relief on a 18 related ineffective assistance of counsel claim. See Pizzuto, 280 F.3d at 955. 19 IV. Ineffective assistance of counsel 20 In his fourth ground, petitioner claims his trial counsel rendered ineffective assistance in 21 failing to properly prepare for trial, including questioning petitioner and obtaining pertinent 22 information vital to the defense. (ECF No. 1 at 18.) Petitioner alleges defense counsel did not 23 properly prepare for trial in that (1) the prosecutor used the website CuteTeenCheaters.com as 24 proof that appellant viewed child pornography, and defense counsel failed to investigate and 25 present evidence showing the website at issue is a legitimate “18 and over website” which did not 26 contain any child pornography; (2) counsel did not call petitioner’s 10-year-old son to the stand to 27 corroborate petitioner’s testimony that the picture of the minor on his phone was taken by his son; 28 //// 29 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 30 of 32 1 (3) counsel only met with petitioner once prior to his testimony; and (4) counsel did not interview 2 certain unidentified witnesses. 3 A. State Court Decision 4 Petitioner raised this claim in habeas corpus petitions to the California Court of Appeal 5 and the California Supreme Court. (ECF Nos. 13-10, 13-12.) Both courts denied the respective 6 petitions without comment. (ECF Nos. 13-11, 13-13.) 7 B. Discussion 8 The standard of Strickland, 466 U.S. 668, applies. “Surmounting Strickland’s high bar is 9 never an easy task,” and review under the AEDPA is doubly deferential. Richter, 562 U.S. at 105. 10 “[T]he pivotal question” for a federal court conducting habeas corpus review under section 11 2254(d) “is whether the state court’s application of the Strickland standard was unreasonable,” 12 which “is different from asking whether defense counsel’s performance fell below Strickland’s 13 standards.” Richter, 562 U.S. at 101. The determination to be made, therefore, is not whether 14 counsel acted reasonably but “whether there is any reasonable argument that counsel satisfied 15 Strickland’s deferential standard.” Id. at 105. 16 First, petitioner has not established that counsel failed to investigate the website. On cross- 17 examination of the deputy in the High Tech Task Force Unit who testified about the 18 CuteTeenCheaters.com website having been visited by someone on petitioner’s computer, 19 counsel established the deputy did not actually know what was on the website, whether it was a 20 child pornography website, or whether petitioner had visited that website. (ECF No. 13-2 at 266- 21 67 (IRT 257-58).) Counsel further established the website at issue was one of many pornography 22 websites visited on the computer and it was the only one with “teen” in the name. (ECF No. 13-2 23 at 268 (IRT 259).) Under these circumstances, there is a reasonable argument that counsel is not 24 shown to have performed deficiently. There is also a reasonable argument that affirmative proof 25 of the website’s contents would not have changed the outcome of the case in light of the totality 26 of the evidence, including the minor’s testimony that petitioner had molested her. 27 Petitioner’s remaining allegations about trial counsel’s performance are conclusory and 28 unsupported. Petitioner has not shown counsel performed deficiently in failing to call his 10-year- 30 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 31 of 32 1 old son to the stand, or that prejudice resulted, because petitioner has not established the contents 2 of the testimony his son would have given, or that such testimony was likely to have outweighed 3 the other evidence such that it would have changed the outcome of the case. Similarly, petitioner 4 has not shown that counsel was deficient in meeting with him only once, or that prejudice 5 resulted, as he does not establish what would have happened differently had counsel met with 6 petitioner more frequently. Finally, petitioner has not shown that counsel was deficient in failing 7 to interview unidentified witnesses, or that prejudice resulted. Petitioner fails to identify the 8 witnesses who should have been interviewed or demonstrate any relevant testimony these 9 unidentified witnesses would have offered. Mere speculation that other unidentified witnesses, 10 additional meetings with petitioner, or additional investigation might have yielded helpful 11 information is not enough to establish ineffective assistance because such a claim is merely 12 “theoretical” or “potential” in nature. See generally Bragg v. Galaza, 242 F .3d 1082, 1087 (9th 13 Cir.), amended, 253 F.3d 1150 (9th Cir.2001) (holding that a petitioner’s “theoretical” or 14 “potential” conflict of interest does not state a claim for relief premised on an actual conflict). 15 Petitioner’s conclusory allegations about trial counsel’s performance fail to establish that 16 defense counsel performed deficiently or that the alleged deficient performance was prejudicial. 17 Under these circumstances, relief should be denied. See Richter, 562 U.S. at 101. 18 CONCLUSION 19 Petitioner fails to meet the standards set out in 28 U.S.C. § 2254(d) by showing the state 20 court decision on any claim was contrary to or an unreasonable application of clearly established 21 law as determined by the Supreme Court, or resulted in a decision based on an unreasonable 22 determination of the facts. 23 It is RECOMMENDED that petitioner’s petition for a writ of habeas corpus be 24 25 denied. 26 These findings and recommendations will be submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days 28 after being served with these findings and recommendations, any party may file written 31 Case 2:17-cv-00922-MCE-DB Document 14 Filed 04/13/21 Page 32 of 32 1 objections with the court and serve a copy on all parties. The document should be captioned 2 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 3 shall be served on all parties and filed with the court within seven (7) days after service of the 4 objections. Failure to file objections within the specified time may waive the right to appeal the 5 District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 6 F.2d 1153 (9th Cir. 1991). In the objections, the party may address whether a certificate of 7 appealability should issue in the event an appeal of the judgment in this case is filed. See Rule 11, 8 Rules Governing § 2254 Cases (the district court must issue or deny a certificate of appealability 9 when it enters a final order adverse to the applicant). 10 Dated: April 13, 2021 11 12 13 14 15 16 DLB7; 17 CKD/Lindsay/DB Habeas/harl0922.fr 18 19 20 21 22 23 24 25 26 27 28 32