Gomez v. Sherman

• Decision Date: 11 June 2019
• Docket Number: No. 2:17-cv-00305 JAM KJN,2:17-cv-00305 JAM KJN
• Parties: JOSE VICTOR GOMEZ, Petitioner, v. S. SHERMAN, Warden, Respondent.
• Court: U.S. District Court — Eastern District of California

JOSE VICTOR GOMEZ, Petitioner, v. S. SHERMAN, Warden, Respondent.

No. 2:17-cv-00305 JAM KJN

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

June 11, 2019

FINDINGS & RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2013 conviction for numerous sex crimes against his minor daughters. Petitioner was ultimately sentenced to a total of 185 years-to-life in state prison. Petitioner claims that the admission of an uncharged act rendered the trial fundamentally unfair in violation of his constitutional right to due process, that the trial court's failure to instruct on a lesser included offense deprived him of a state-created liberty interest in violation of his constitutional right to due process, and that his due process rights were violated with his conviction pursuant to count eleven because it did not allege a public offense. After careful review of the record, this court concludes that the petition should be denied.

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II. Procedural History

On November 2, 2012, a jury found petitioner guilty of eight counts of lewd and lascivious conduct upon a child under fourteen, two counts of sexual intercourse with a child ten years of age or younger, and two counts of oral copulation with a child ten years of age or younger; the jury also found true an enhancement that the offenses were committed against two or more minors. (ECF No. 16-2 at 34-45.)¹ On January 4, 2013, petitioner was sentenced to 200 years-to-life in state prison. (ECF No. 16-2 at 78-80.)

Petitioner appealed the conviction to the California Court of Appeal, Third Appellate District. (ECF No. 16-6.) The Court of Appeal reversed count ten for a lack of substantial evidence and modified the sentence to 185 years-to-life, but otherwise affirmed the conviction on February 3, 2016. (ECF No. 13, Ex. A at 30-54.)

Petitioner filed a petition for review in the California Supreme Court, which was denied on April 13, 2016. (ECF No. 16-10.)

Petitioner filed the instant petition on February 13, 2017. (ECF No. 1.)

III. Facts²

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual background:

Defendant and a woman named Kristy had two daughters. E. was 13 years old and K. was 10 years old at the time of the trial in 2012.

E. disclosed to Kristy on June 30, 2011, that defendant had sexual intercourse with her. That was the first time E. told Kristy about any sexual misconduct by defendant. Kristy reported the misconduct to police that day. The police interviewed E., but did not have E. submit to a sexual assault examination in part because the last reported act of sexual assault occurred two or three years prior to E.'s disclosure.

Kristy made a pretext call to defendant at the request of the police. Defendant admitted to Kristy that E. put on dresses and dancedprovocatively for him. He admitted apologizing to E. because she said he groped her. Defendant said he promised E. he would not do anything like that again. Defendant denied having sexual intercourse with E. or having E. lick jelly off his penis. He denied doing the other things E. reported, but said he did not remember what happened because he was doing a lot of drugs and was not sober "back in the day." The People played an audio recording of the pretext call during the trial.

Police arrested defendant after the pretext call. They found pornographic magazines and movies during a search of defendant's home. No pornographic images involving children were found on defendant's home computer or cell phone.

Defendant agreed to speak with detectives after he was advised of his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436 .) Detective Anthony Saika opined defendant did not exhibit any signs of being under the influence of alcohol or drugs at the time of his arrest or during his interrogation.

Defendant made a number of admissions during the interrogation. He admitted the following: E. orally copulated him multiple times. E. sucked his penis after jelly was applied to his penis. E. "rode" or "dry humped" him a few times, and he ejaculated probably twice. There was skin to skin contact between his penis and E.'s vagina when he had E. "ride the horse," although his penis did not go in E.'s vagina. E. dressed up in costumes and danced for defendant. Defendant slapped E.'s butt. Defendant made promises to E., like promising to take her to the park, in exchange for sexual acts. Defendant apologized to E. for the things he did to her, and he promised not to do those things anymore after E. had panic attacks. Defendant denied using dildos with E. or showing her pornographic movies. Defendant said he was ashamed. He told the interrogating officers, "I pretty much screwed myself telling you everything."

A videotape of the statement defendant gave police was played at the trial.

Defendant called Kristy from jail. He told Kristy he was not mad at Kristy or E., and he was glad E. said something because he wanted to tell Kristy and felt guilty. The People played an audio recording of that telephone call at the trial.

A forensic interview specialist interviewed E. and K. K. did not disclose any sexual conduct by defendant during her initial interview. But K. was re-interviewed after she disclosed to E. that defendant had touched her in a bad way. K. disclosed at her second interview that when she was eight years old, defendant rolled a massager over her private part and instructed her to roll the massager on his penis. A videotape of K.'s second interview was played at the trial.

E. testified at the trial. She described numerous sexual acts with defendant, recounting the following:

When E. was in preschool or kindergarten, defendant put grape orstrawberry jelly on his penis and had E. lick the jelly off his penis. E. saw white liquid come out of defendant's penis. The liquid went into a washrag or sock. Afterward, defendant praised E. and gave her a kiss on her head. That sexual act occurred more than three times.

On one occasion, defendant got on top of E., instructed her to wrap her legs around him, and defendant inserted his penis inside E. E. kept trying to get up because it felt very uncomfortable for her, but defendant pulled her back down. E. felt pain. E. was in preschool or kindergarten at the time.

Defendant had E. do something defendant called "ride the pony" on more than 10 occasions. Defendant put his penis inside E.'s vagina during a "ride the pony" incident when E. was seven or eight years old. E. also recalled a position defendant called "something about a dog" where E. was on her hands and knees and defendant inserted his penis inside her from behind, causing E. pain.

When E. was less than nine years old, defendant put a clear liquid on his penis and inserted his penis inside E.'s vagina while defendant was behind E. Defendant put his penis inside E. multiple times, going in and out, until white stuff came out. E. felt discomfort and some pain.

On one occasion in 2008 or 2009, defendant got into E.'s bed after Kristy had left for work. Defendant put his penis inside E. from behind.

On more than five occasions, defendant made E. dress up in outfits and dance for him. Defendant masturbated on his bed while E. danced. Defendant also showed E. pornographic movies.

E. also testified about sex toys. She said defendant put a pink vibrator inside or near her vagina. E. could not remember if there was more than one incident involving the pink vibrator. E. remembered a red dildo, but at trial she did not remember how defendant used the red dildo.

Defendant promised to take E. swimming or to the park or to give E. money in exchange for some of the sexual acts she performed. Defendant told E. something to the effect that he deserved it and he had been a good dad all week.

E. told a friend she was being touched inappropriately when she was in kindergarten. When grown-ups questioned her, however, E. lied and denied anything happened.

The sexual conduct with defendant stopped when E. was in fourth or fifth grade. At that time E. was stressed and kept vomiting. E. did not tell Kristy what was going on because E. was afraid. Instead, E. talked to defendant, and defendant promised he would stop. Although the sexual acts stopped, defendant grabbed or smacked E.'s butt whenever he passed her.

K. also testified at the trial. She said defendant used a massager torub her private part, then instructed K. to use the massager on his penis and K. complied. K. was eight when the incident occurred.

In 2010, defendant's niece S. accused defendant of sexual misconduct against her when she was three to five years old. S. is the daughter of defendant's brother. S. was 17 years old when she testified at the trial as follows: She lived in the same house as defendant when she was three or four years old. Defendant had S. perform oral sex on him more than once when she was between three and five years old and he babysat her. Defendant placed something that tasted like cherries on his penis on those occasions. Defendant did not ejaculate in S.'s mouth. After S. performed oral sex on defendant, defendant praised S. and gave her a dollar bill that was folded into a ring. S. stopped living with defendant when she was five years old. She did not tell anyone about what happened until 2010, when she was 15 years old and had panic attacks. Her aunt Alma asked her if anything had ever happened to her. S. reluctantly told her aunt about what defendant had done to her.

Defendant testified at the trial. He said he used methamphetamine and marijuana and had been drinking alcohol on the day of his arrest. He said he felt sick during his interrogation. He claimed he told the interrogating officers what they wanted to hear because he wanted the questioning to stop. Defendant

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