Morgan v. Robinson, SACV 00-0434-AHS(RC).
| Decision Date | 28 June 2001 |
| Docket Number | No. SACV 00-0434-AHS(RC).,SACV 00-0434-AHS(RC). |
| Court | U.S. District Court — Central District of California |
| Parties | Christopher MORGAN, aka Christopher Alan Morgan, Petitioner, v. John ROBINSON, Chief Probation Officer, Orange County Department of Probation, et al., Respondents. |
Michael B. Dashjian, Templeton, CA, for Petitioner.
Matthew C. Mulford, Deputy Attorney General of California, San Diego, CA, for Respondents.
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, as well as petitioner's objections, and has made a de novo determination.
IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered denying the petition for writ of habeas corpus and dismissing the action with prejudice.
IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United State mail on the parties.
This Report and Recommendation is submitted to the Honorable Alicemarie H. Stotler, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.
On August 15, 1997, in the Superior Court for the County of Orange, petitioner Christopher Morgan, aka Christopher Alan Morgan, was convicted by a judge of soliciting lewd and lascivious conduct with a 14 year old in violation of California Penal Code ("P.C.") § 653f(c)/288(c) (count 2). Clerk's Transcript ("CT") 103, 393; Reporter's Transcript ("RT") 218. The petitioner was sentenced to three years of formal probation with the condition that he serve six months in the county jail, which could be served by electronic monitoring. CT 472; RT 225-26.
The petitioner appealed his conviction to the California Court of Appeal, which affirmed the judgment in an unpublished opinion filed November 30, 1999, as modified December 23, 1999. Lodgments 5 and 7. On January 13, 2000, petitioner filed a petition for review in the California Supreme Court, which denied the petition on March 15, 2000; however, Justices Mosk and Kennard were of the opinion the petition should be granted. Lodgments 2 and 4.
The California Court of Appeal, in affirming petitioner's conviction, made the following findings of fact: Throughout 1994 and 1995, officers in the vice division of the Huntington Beach Police Department placed a number of advertisements offering escort services in the business personals section of the Orange County Register. The ads were designed to assist the police in learning how escort services operate and to facilitate the investigation and apprehension of persons involved in sex crimes.
One of the ads offered "SCHOOLGIRL ESCORTS" and specified "Hotels OK 18." On the afternoon of July 22, 1995, petitioner, a 57-year-old attorney, called the telephone number listed in the ad and left his name and number. Posing as an escort service operator, Detective Tim Chambers called petitioner back about an hour later and asked what he was looking for. The petitioner said he liked slender, young women, around 18 or 19, with mediumsized breasts. He also expressed a preference for "shaved pussy."
Chambers said he specialized in young women and advised petitioner to contact another agency if he wanted an adult escort. Wanting to hear more about Chambers' agency, petitioner asked how old his girls were. Chambers replied, "Well, the best way I can answer that is that we find out as much as we can about what your particular needs are and we let you know if we'll be able to provide the service that you're seeking."
When petitioner said he liked young girls, Chambers asked him for an approximate age range. The petitioner coyly answered, "Well, you tell me what you've got and I'll tell you." Chambers rejoined,
The petitioner replied, Chambers said he had a girl named Kimberly that age and would page her to see if she was available for that evening. He then asked petitioner whether he was expecting a mere dancer or a "full service" escort. Petitioner said he wanted the latter. He also admitted, "I really like young women[] but I've never talked to a service that would provide young women." He asked Chambers if he was a cop, and Chambers laughed and said no.
Chambers then inquired what petitioner wanted to do with Kimberly, which prompted petitioner again to ask if he was a cop. Chambers again said no, explaining he was simply trying to find out petitioner's specific interests. The petitioner stated, Chambers responded, The petitioner confirmed that was what he had in mind.
Asked by Chambers if he had any other special requests, petitioner said he liked short skirts and that "a schoolgirl's spirit would be nice!" Chambers retorted, After that, petitioner said he would be willing to pay $350 to have Kimberly come to his house. Chambers told petitioner he would page Kimberly and get back to him.
Forty-five minutes later, Chambers phoned petitioner and told him Kimberly was available. He then described Kimberly for petitioner, which led to the following exchange:
Petitioner: Look, I gotta be honest with you.
Chambers: Um hum ...
Petitioner: Ah ... when something is too good to be true it ... it usually is, you know.
Chambers: Um hum....
Petitioner: This ... um ... you know, fantasy of mine, never followed through with it. You know, lots of trouble with 14 year olds as you know. Um....
Chambers: You're telling me! Believe me that's all we ... that's on our mind every minute, but Petitioner: Yeah ...
Chambers: But there's also a lot less competition in the market and a lot more money to be made so ...
Petitioner: Yeah ...
Chambers: You go where the money is and you just try to take your precautions.
Petitioner: I'll tell you what, we'll take it step-by-step here.
At that point, petitioner told Chambers to have Kimberly give him a call. When Chambers refused, petitioner said, "Okay, well then there's no way I'm gonna do it." However, petitioner changed his mind after Chambers told him it was not feasible for customers to talk to the escorts ahead of time.
Chambers then told petitioner that Kimberly would meet him at a Carl's Jr. restaurant in Fountain Valley and that he could then take her back to his house. The petitioner told Chambers what kind of car he had and said he would be at the restaurant around 8 p.m.
Chambers went to the restaurant. At 7:53 p.m., petitioner pulled into the parking lot, stepped inside the restaurant momentarily and returned to his car. He then phoned Chambers and left a message that Kimberly was not there. Next, petitioner walked to the front of the restaurant and looked around before returning to his car and leaving. He left two more messages with Chambers that evening. In the second one he said,
Five days later, Chambers executed a search warrant at petitioner's residence. He found the newspaper ad for his phony escort service, as well as two short stories about minors having sex with adults. A computer image drawing of a young female and a brochure for ordering nude photographs of children were also found at petitioner's house.1
On May 4, 2000, petitioner, through his attorney, filed the pending petition for writ of habeas corpus. On June 29, 2000, the respondent answered the petition. On August 7, 2000, petitioner filed a traverse and on April 12, 2001, he filed a supplemental traverse. The following claims are raised in the petition:
Grounds One and Two—The petitioner's due process rights were violated when he was convicted of a "nonexistent" crime, which was subsequently "created [by the California Court of Appeal] ... and applied ... retroactively to petitioner" (Petition at 6; Memorandum of Points and Authorities in Support of Petition for Writ of Habeas Corpus ("Memo") at 2-10);
Grounds Three and Four—There was insufficient evidence to support petitioner's conviction because the accusatorial pleading charged him with soliciting a fictitious person, or in the alternative, the accusatorial pleading was changed in violation of his due process rights (Petition at 7; Memo at 12-17);
Ground Five—The petitioner's due process rights were violated because he was entrapped (Petition at 7; Memo at 17-23); and
Ground Six—The California Court of Appeal's "overall treatment of petitioner's appeal was arbitrary" (Petition at 7; Memo at 23-24).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), effective April 24, 1996, worked substantial changes to the law of habeas corpus. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir.), cert. denied, 521 U.S. 1111, 117 S.Ct. 2497, 138 L.Ed.2d...
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