Brodit v. Cambra

Decision Date26 November 2003
Docket NumberNo. 02-15323.,02-15323.
Citation350 F.3d 985
PartiesGoodwin R. BRODIT, Petitioner-Appellant, v. Steven J. CAMBRA, Jr., Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Ronald C. Tyler, Assistant Federal Public Defender, San Francisco, CA, for the petitioner-appellant.

George F. Hindall, III, Deputy Attorney General, San Francisco, CA, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California; Susan Yvonne Illston, District Judge, Presiding. D.C. No. CV-99-00093-SI.

Before: ALEX KOZINSKI, SUSAN P. GRABER, and MARSHA S. BERZON, Circuit Judges.

Opinion by Judge GRABER; Dissent by Judge BERZON.

OPINION

GRABER, Circuit Judge:

Petitioner Goodwin Brodit was convicted in state court of continuous sexual abuse of a minor, in violation of California Penal Code § 288.5, for engaging in sexual activities with his 10 year old stepniece. In this federal habeas petition, brought pursuant to 28 U.S.C. § 2254, he challenges his conviction on the grounds that the state-court procedures denied him due process of law and that he received ineffective assistance from his state trial counsel. We affirm.

PROCEDURAL HISTORY

Petitioner was charged with violating section 288.5 by committing at least three lewd and lascivious acts with his stepniece while he was staying in the home of her mother and stepfather (Petitioner's brother), between June 12, 1992, and December 31, 1994. A jury convicted him. The state trial court sentenced Petitioner to serve a term in prison, pay restitution, undergo HIV testing, and register as a sex offender.

Petitioner pursued both a direct appeal and habeas relief through the state courts. He raised in state court all the claims that he brings before us. The California Court of Appeal consolidated the direct appeal with the state habeas petition and denied relief on all grounds, in an opinion that was published in part. People v. Brodit, 61 Cal.App.4th 1312, 72 Cal.Rptr.2d 154 (1998). On June 10, 1998, the California Supreme Court, in an unexplained order, denied Petitioner's requests for review. Under AEDPA, we "look through" unexplained decisions to the last reasoned state-court decision. See Gill v. Ayers, 342 F.3d 911, 917 & n. 5 (9th Cir.2003) (internal quotation marks omitted). Because the last reasoned state-court decision was the California Court of Appeal's consolidated review of Petitioner's direct appeal and habeas petition, we examine that decision here.

Having exhausted his claims in state court, Petitioner filed this federal habeas petition. The district court held an evidentiary hearing on Petitioner's claim of ineffective assistance of counsel. Thereafter, the district court rejected all of Petitioner's claims but issued a Certificate of Appealability on Petitioner's due process and ineffective assistance of counsel claims. This timely appeal ensued.

STANDARD OF REVIEW

A federal court "shall not" grant a writ of habeas corpus to a state prisoner with respect to any claim adjudicated on the merits in state court unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). This standard of review "demands that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam); see also Yarborough v. Gentry, ___ U.S. ___, 124 S.Ct. 1, 4, 157 L.Ed.2d 1 (2003) (per curiam) (citing Wiggins v. Smith, ___ U.S. ___, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003), for the proposition that the question for a federal habeas court is whether the state court's decision was "objectively unreasonable"); Early v. Packer, 537 U.S. 3, 11, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam) (stating that, when it is reasonable to conclude that a constitutional violation did not occur, "the state court's determination to that effect must stand").

We review de novo a district court's denial of a petition for a writ of habeas corpus. McNeil v. Middleton, 344 F.3d 988, 994 (9th Cir.2003).

DISCUSSION

California specifically criminalizes the repeated sexual abuse of a child by a person who resides in the same household:

Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense... or three or more acts of lewd or lascivious conduct under Section 288, with a child under the age of 14 years at the time of the commission of the offense[,] is guilty of the offense of continuous sexual abuse of a child....

California Penal Code § 288.5(a). Section 288, in turn, deems a felony "any lewd or lascivious act ... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child."

There is no question in this case that Petitioner had recurring access to the child for more than three months, or that the child was younger than 14 at the time, or that the acts charged — including anal and vaginal intercourse — qualify as lewd or lascivious conduct. Rather, Petitioner questions the procedures that resulted in his conviction.

A. Due Process Claims

California has developed several special rules for use in trials involving charges of sexual abuse of a child. Petitioner argues that four of these procedures denied him due process by impairing his ability to present a defense.

1. California Penal Code § 288.5

Petitioner first contends that he was deprived of notice and a fair opportunity to respond to the state's charges, because section 288.5 allowed the state to charge him with three or more acts of sexual abuse occurring on unspecified dates between June 12, 1992, and December 31, 1994. See U.S. Const. amend. VI ("the accused shall enjoy the right ... to be informed of the nature and cause of the accusation"). The California Court of Appeal rejected those claims on the basis of the California Supreme Court's decision in People v. Jones, 51 Cal.3d 294, 270 Cal. Rptr. 611, 792 P.2d 643 (1990).

In Jones, the California Supreme Court considered a due process challenge to the application of California Penal Code § 288, a child molestation statute that criminalizes single instances of abuse. There, the charging document gave starting and ending dates for the period during which the alleged events took place but did not pinpoint a specific date for any one event. Noting the difficulties of proof posed when a child alleges ongoing abuse but cannot recall specific dates, the court held that a defendant could prepare a defense adequately even though allegations spanning a significant time period may preclude presentation of an alibi defense. The court reasoned that credibility is typically the major issue in child abuse cases, with most defendants denying not just specific incidents on specific dates, but denying that any abuse ever occurred at all. Id. at 319, 270 Cal.Rptr. 611, 792 P.2d 643. Defendants can take advantage of a variety of effective defenses even in the absence of specific dates; for example, they can testify and deny the allegations, advance positive character evidence, develop evidence of a child's motive to lie, and show alibis for some incidents that, if credible, could cast doubt on the child's entire account. Id. at 320, 270 Cal.Rptr. 611, 792 P.2d 643. That being so, the court concluded, due process is not violated by the absence in the charging document of precise dates. Id. at 320-21, 270 Cal.Rptr. 611, 792 P.2d 643.

Even the dissenting justice in Jones expressed the view that the newly enacted section 288.5 would cure the due process problems that the dissenter saw in section 288. Id. at 328-30, 270 Cal.Rptr. 611, 792 P.2d 643 (Mosk, J., dissenting). Indeed, several appellate cases, in addition to Petitioner's, have applied the reasoning in Jones to deflect due process challenges under section 288.5. See, e.g., People v. Gear, 19 Cal.App.4th 86, 23 Cal.Rptr.2d 261, 267-68 (Ct.App.1993); People v. Higgins, 9 Cal.App.4th 294, 11 Cal.Rptr.2d 694, 697-98 (Ct.App.1992).

Petitioner cites no clearly established United States Supreme Court precedent, and we are aware of none, that the California Court of Appeal contradicted or unreasonably applied in this portion of the analysis. Therefore, we affirm the district court's rejection of this claim.

2. California Evidence Code §§ 1253 and 1360

California Evidence Code § 1253 provides that, in child abuse or neglect proceedings,

evidence of a [victim's] statement is not made inadmissible by the hearsay rule if the statement was made for purposes of medical diagnosis or treatment and describes medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

California Evidence Code § 1360 creates an additional hearsay exception for "a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another" if several conditions are met. The conditions include (as relevant here) requirements that the court find "that the time, content, and circumstances of the statement provide sufficient indicia of reliability" and that the child testify. Id. § 1360(a).

Petitioner's stepniece, the 10-year-old victim, testified at Petitioner's trial. Under the...

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