Cortez v. Lopez

• Decision Date: 18 March 2014
• Docket Number: Case No.: 1:11-cv-01761-AWI-JLT
• Citation: Cortez v. Lopez, Case No.: 1:11-cv-01761-AWI-JLT (E.D. Cal. Mar 18, 2014)
• Court: U.S. District Court — Eastern District of California
• Parties: ROBERTO CORTEZ, Petitioner, v. R. LOPEZ, Warden, Respondent.

ROBERTO CORTEZ, Petitioner, v. R. LOPEZ, Warden, Respondent.

Case No.: 1:11-cv-01761-AWI-JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: March 18, 2014

FINDINGS AND RECOMMENDATIONS TO

DENY PETITION FOR WRIT OF HABEAS

CORPUS (Doc. 1)

ORDER DIRECTING THAT OBJECTIONS BE

FILED WITHIN TWENTY-ONE DAYS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL HISTORY

Petitioner is in custody of the California Department of Corrections and Rehabilitation serving an indeterminate sentence of sixty years-to-life pursuant to a judgment of the Superior Court of California, County of Merced(the "Superior Court").This followed his October 16, 2008 conviction following a jury trial for multiple counts of continuous sexual abuse of a child (Cal. Pen. Code § 288.5) and for lewd and lascivious contact with three separate victims (Cal. Pen. Code § 288(a)).Petitioner was sentenced by the trial court under California's "one strike" law set forth in California Penal Code § 667.61.Petitioner appealed to the California Court of Appeal, Fifth Appellate District("5^th DCA").On June 22, 2011, in an unpublished opinion, the 5^th DCA affirmed the conviction butdismissed the one strike findings as to two of the counts, ruled that Petitioner could not be convicted of continuous sexual abuse in conjunction with the § 288 counts against the same victims and remanded the case for resentencing.(Doc. 14, Lodged Documents ("LD") 4).On August 31, 2011, the California Supreme Court denied Petitioner's petition for review.(LD 3).

On October 24, 2011, Petitioner filed the instant petition.(Doc. 1).Respondent's answer was filed on January 26, 2012.(Doc. 13).Petitioner has not filed a Traverse.Respondent argues that ground one is not exhausted, but otherwise does not contend that the remaining claims are unexhausted.(Doc. 13).

FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the 5^th DCA's unpublished decision¹:

Defendant was involved in romantic relationships with three women: Sophia G., Angelica C., and Emma C., and he lived with these women during separate time periods from approximately 1998 to 2007.While he was involved with these women, he sexually molested their young daughters, Y.C., C.C., and S.C., and threatened to harm them if they told anyone about the molestations.Defendant was not the children's father.

Another girl involved in this case, R.C., is the daughter of defendant and Sophia G. Defendant was not charged with molesting R.C ., but R.C. occasionally stayed with her older half-sister, Y.C., and the other children when defendant was involved with their mothers.As we will explain, post, R.C. testified for the prosecution that she saw defendant touch Y.C.

We will review the facts in sequential order, based on the counts and the relevant time periods.

Y.C.—Counts VI, VII and VIII (April 4, 1998, to April 3, 2000)

Y.C. was 16 years old at the time of defendant's trial in 2008. Y.C.'s mother is Sophia G. Defendant became Sophia's boyfriend when Y.C. was six or seven years old.

Y.C. testified that defendant touched her for the first time when she was six or seven years old.The incident occurred when she was sleeping on the bedroom floor, next to the bed where defendant and her mother were sleeping.Defendant let his arm hang from the bed over Y.C., put his finger in her mouth, and asked her to suck it.Y .C. testified she did not want to do the act, but she did so anyway.

Y.C. described another incident which occurred about six months later, in the summer, when the family was living in a different residence.Y.C.'s mother was working and defendant was babysitting Y.C. Defendant drove Y.C. to the store to rent a pornographic video.Defendant asked Y.C. if she liked two girls or a boy and a girl.Y.C. was confused and did not answer.Y.C. testified the movie box covers in the store "showed like a lot of nudity and they weren't movies that my mom would let me see if we were to go rent movies.I knew they were wrong."

Defendant told Y.C. to pick one and she did.When they got home, defendant made her watch the movie with him.The movie depicted naked adults having oral sex.Y.C. thought the movie was disgusting.It made her feel uncomfortable and she knew she should not be watching it.

After they watched the movie, defendant asked Y.C. if she liked what she saw and if she wanted to be like the girls in the movie.Defendant asked her to take off her clothes, and she complied but kept on her underwear.Defendant was wearing a shirt and boxer shorts.Defendant touched Y.C. in her "private places,"he kissed her mouth, neck, and breasts, and he rubbed her vagina with his hands.Defendant touched her breasts, put his mouth on her vagina, and asked if she liked it.Defendant put Y.C.'s hands on his penis and told her to rub it.She did not want to do it.Defendant grabbed her hand and put it on his penis, and then guided her hand over it.

Y.C. testified about another incident which occurred when she was seven or eight years old.Defendant made Y.C. touch his penis with her mouth by pushing her head down.

Y.C. testified that almost every time that defendant wanted to touch her, he would play a pornographic video or make her look at a pornographic magazine, and then molest her again.Defendant never tried to bother her when her mother was around.

Y.C. testified that they moved to another residence when she was eight or nine years old, and defendant continued to touch her when her mother was at work.One incident occurred when she was sleeping in her mother's bed.She woke up and found defendant trying to kiss her.He tried to touch her vagina and breasts, and forced his tongue into her mouth.Y.C. tried to back away from him.

Y.C. testified she did whatever sexual acts defendant wanted her to do because "I didn't know what else to do.I was confused so I just did it.I don't really know why.I was scared of him, kinda."Y.C. testified that if she did not cooperate with him during the sexual acts, defendant would "just get really angry, and he'd lash out and get-and just started yelling at me, so I didn't know what else to do."Defendant told Y.C. that if she told anyone what they were doing, her mother would be upset and leave him, and her mother would be miserable without defendant.Defendant also warned Y.C. that her half-sister, R.C., would grow up without a father just like Y.C. did.

Y.C. believed defendant touched her in a sexual manner a total of 10 to 15 different times, on different days, over a period of more than three months.

When Y.C. was about 10 years old (around 2002), she told her older stepbrother about defendant's acts, but nothing happened as a result of that disclosure.

In 2005, Y.C.'s mother told Y.C. that two girls accused defendant of molesting them.Y.C.'s mother did not believe the girls' accusations.She asked Y.C. if defendant hurt her like he allegedly hurt the other girls.Y.C. told her mother that nothing had happened, even though defendant had already inappropriately touched her.The police also interviewed Y.C. about the accusations by the other girls, but Y.C. did not tell the police that she had been molested.Y.C. explained that she did not tell her mother or the police because she was still scared and not ready to talk about it.Y.C. knew the identities of the two girls who had accused defendant, but she never met them and did not talk to them about the accusations.

Y.C. testified that she finally told her mother about the molestations about 9 or 10 months before defendant's 2008 trial.Y.C. then told the police what happened.

Based on Y.C.'s testimony, defendant was charged and convicted of count VI, continuoussexual abuse; count VII, commission of a forcible lewd act; and count VIII, commission of lewd or lascivious act, with all counts committed from April 4, 1998, to April 3, 2000.As to all counts, the jury found true the special allegation pursuant to the one strike law, that defendant was convicted in this case of committing an enumerated sexual offense against more than one victim.(§ 667.61, subds.(b), (e)(4).)

C.C.—Counts III, IV, and V (August 31, 2002, to August 30, 2004)

C.C. was 14 years at the time of trial.C.C.'s mother is Angelica C. C.C. was eight years old when she met defendant, who was her mother's fiance.He started to live with her family when she was eight or nine years old.

C.C. testified that defendant first touched her inappropriately when she was eight years old.He touched her breasts, buttocks, and vagina with his hands.Defendant continued to molest C.C. when she was nine years old.When she was asleep, defendant would grab her hands and make her touch his penis.Defendant also forced her to kiss his lips "like I was his girlfriend."Defendant would get out of the shower and walk into her room naked.

C.C. described another occasion when she was sleeping, and defendant spread her legs and tried to insert his penis into her vagina.C.C. woke up and defendant stopped.Defendant also showed her pictures of naked women.When defendant wanted to touch C.C., she tried to push him away but he held her down and forced her to sit still.C.C. testified the molestations continued over a two-year period, and defendant molested her about 60 or 70 times.Defendant molested C.C. when her mother was at work.C.C. did not tell her mother about the molestations because defendant threatened her.Defendant said he would "hurt" her mother and the family.C.C. was scared and believed the threats, and she was still afraid of defendant at the time of trial.

At one point during defendant's relationship with C.C.'s mother, her mother was hospitalized and in a diabetic coma for several months.C.C. and her brothers alternated between living with defendant and their aunt during this time.Defendant continued to molest C.C. when she lived with him and her mother was in the hospital.

In approximately 2005, while her mo

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