Poizner v. Frauenheim

• Decision Date: 14 December 2015
• Docket Number: Case No.: 14cv1614 LAB (RBB)
• Court: U.S. District Court — Southern District of California
• Parties: ROBERT ANDREW POIZNER, Petitioner, v. SCOTT FRAUENHEIM, et al., Respondents.

ROBERT ANDREW POIZNER, Petitioner, v. SCOTT FRAUENHEIM, et al., Respondents.

Case No.: 14cv1614 LAB (RBB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

December 14, 2015

ORDER:

(1) DENYING PETITION FOR WRIT OF HABEAS CORPUS; and

(2) DENYING CERTIFICATE OF APPEALABILITY

I. INTRODUCTION

Petitioner Robert Andrew Poizner, a state prisoner represented by counsel, has filed a First Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition") challenging his convictions in San Diego County Superior Court Case No. SCD230891 for committing lewd and lascivious acts with a child, committing lewd acts on a child, sexual battery, exhibiting harmful matter to a minor, distributing or exhibiting harmful matter to a child, contributing to the delinquency of a minor, dissuading a

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/ / / witness, and disobeying a court order. (Pet., ECF No. 12.)¹ Poizner raises fourteen claims in the petition he has filed in this Court.

The Court has read and considered the Petition [ECF No. 12], the Answer and Memorandum of Points and Authorities in Support of the Answer [ECF No. 19], Petitioner's Traverse [ECF No. 22], the Supplemental Answer [ECF No. 28], the Supplemental Traverse [ECF No. 29], the lodgments and other documents filed in this case, and the legal arguments presented by both parties. For the reasons discussed below, the Court DENIES the petition and DENIES a Certificate of Appealability.

II. FACTUAL BACKGROUND

This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parle v. Fraley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from these facts, are entitled to statutory presumption of correctness). The following facts are taken from the California Court of Appeal opinion:

In 2009, Poizner was a volunteer counselor at Pacific Health Systems, a substance abuse rehabilitation center. There, he introduced himself to and befriended adolescent boys who were attending Alcoholics Anonymous (AA) and other group meetings, telling one of the boys he was there to help keep himself sober and assist other teenage boys. He then brought the boys to his apartment where he committed acts summarized below and for which he was convicted of the above-referenced offenses. At trial, each victim testified about Poizner's conduct and touching, and the circumstances that otherwise led to the charges against him. Like Poizner's opening brief, our factual summary focuses mainly on the evidence supporting the felony sexual assault offenses against Austin G., Brandon P., Evan W., and Andrew D.

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Counts 1-8: Austin G.

In September 2009, Poizner agreed to become the AA sponsor of then 13-year-old Austin G. One night after an AA meeting, Poizner obtained Austin's parents' permission to take Austin out for coffee. Afterwards, Poizner took Austin back to his apartment, where he put on an adult pornographic movie for Austin to watch and gave him cigarettes. Poizner sat on a couch next to Austin and at some point began to touch Austin's genitals over his clothing, then underneath his clothing. Poizner offered to orally copulate Austin but then resisted, telling Austin it would be "awkward" since he was Austin's sponsor. Poizner asked Austin to show him his penis, and Austin did so by unbuttoning his pants. Poizner also kissed Austin on his buttocks. Austin and Poizner eventually left the apartment in Poizner's car, where Poizner again rubbed Austin's genitals over his clothing. When Poizner returned Austin home, he told Austin's mother he was gay, but that he was into stable, committed relationships and not interested in teenagers or boys. Austin did not tell his mother what had happened because he was in shock and did not want anyone to know about it.

Three days later, Austin's mother dropped Austin off to meet Poizner at a comedy club. About an hour and a half later, they went back to Poizner's apartment, where Poizner again put on pornography, pulled down Austin's pants and began rubbing Austin's genitals. Poizner also rubbed himself over his clothing, and then asked whether Austin wanted to be orally copulated. Again, Poizner refrained, acknowledging his role as Austin's sponsor. Austin pulled up his pants, they smoked cigarettes, and Poizner took him home. On the way, Poizner told Austin not to tell anyone about what had happened.

At trial, the People played for the jury a tape-recorded pretext call between Austin and Poizner, in which Austin talked about what had happened. Poizner asked Austin if he was angry at him, and told him "that shit's never happened again." Austin asked Poizner to not touch him on his genitals if they ever went out again, and Poizner responded with incriminating statements, saying it would "never again" happen and his touching Austin "was just like something that just kind of happened . . . ."

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Counts 11-18: Brandon P.

In May 2009, Poizner became Brandon P.'s sponsor at Pacific Health Systems. Brandon P. was 13 years old at the time. Brandon began going to Poizner's apartment where he would spend the night on Poizner's mattress on the floor, sometimes with other friends, including Austin. Poizner usually slept on the mattress or on a couch in his bedroom. He would buy Brandon cigarettes, and also let him watch adult heterosexual pornographic videos.

Sometimes before or after showing the videos, Poizner would massage Brandon's back or feet, and sometimes the feet of the other boys. Sometimes he would hug Brandon and kiss him on the neck, usually when Brandon was leaving. On about 10 or 15 occasions in late 2009, Poizner spanked Brandon, sometimes pulling down his pants and exposing his buttocks and lightly spanking him, and sometimes having Brandon bend over his knee. Poizner also spoke about his sex life with Brandon while they were alone, telling Brandon about other men he had sex with, and describing oral sex. Poizner once jokingly offered to enter the shower while Brandon was showering. Brandon saw that Poizner touched himself in his groin area while the pornography was playing. On two different occasions, Poizner tapped Brandon's penis with the back of his hand, once over Brandon's clothes and another time after quickly pulling down Brandon's boxers. Brandon testified that while he was still 13 years old, Poizner had massaged his back and neck about five times, and had hugged and kissed him a couple of times.

When the allegations of Poizner's molestations began to surface, Poizner called Brandon and told him to avoid speaking with an investigating detective. Poizner picked Brandon up at school that day to prevent him from seeing the detective.

Count 19: Andrew D.

Andrew D. was a school friend of Brandon's, and got to know Poizner through Brandon. He went to Poizner's house with Brandon and another friend, Colten. They rented a regular movie and at some point, Poizner massaged Andrew's feet. Andrew fell asleep in Poizner's bed wearing his shirt and boxer shorts. Colten slept in the same bed. When Andrew awoke, an adult heterosexual pornographic movie was playing on the television, and Poizner, Andrew and Colten watched it for about a half an hour.

Counts 20-23: Evan W.

Evan W., who was twelve years old at the time of trial, was another school friend of Brandon's and met Poizner through Brandon. One night, Evan called Poizner, who picked him up in Encinitas and took him downtown where they ate and walked around, and eventually ended up at Poizner's apartment. Evan and Poizner watched a movie, and Evan consumed most of an alcoholic drink that Poizner had purchased for him. Evan was lying on Poizner's bed over the covers but got sick and passed out, awaking to find himself under the covers with adult heterosexual pornography on the television.

Evan estimated he spent the night at Poizner's apartment about 10 times. Poizner always gave Evan cigarettes. Evan, along with his friend Stephen, spent a third night at Poizner's apartment after Christmas of 2009, and drank another alcoholic beverage. On this occasion, Poizner used a belt to spank both Stephen and Evan on their bare buttocks multiple times, joking that it was to punish them for going out and needing a ride. Evan laughed, though Evan did not want Poizner to spank him.

On the fourth night Evan spent at Poizner's apartment, Poizner massaged Evan's back underneath his shirt, and eventually slipped his hands into Evan's pants and massaged his penis. Evan also recalled spending the night at a hotel with Poizner and other boys on more than one occasion. Poizner would give the boys foot massages and once kissed Evan's foot.

Poizner told Evan not to tell anyone about coming to his apartment and drinking or the fact that Poizner had touched him. He told Evan not to speak about his arrest and that Evan did not have to answer questions from the police.

Testimony of Brandon P.'s Friends

Colten A., Deon D., Erick N., Tyler M., and Gabriel G. were Brandon's friends who all at some point visited Poizner's apartment On one occasion there, Colten A. fell asleep and awoke to find a pornographic video playing and Poizner, who was only a few inches away from him, looking at him and Brandon. He became concerned when he noticed most of his fly was unbuttoned though it had been closed when he fell asleep.

While at Poizner's apartment, Deon D. saw Poizner give Gabriel G. a kiss. Deon also observed that Poizner was always talking about sex, gave Brandon a back massage on one occasion, and once bet him and other friends that Brandon had a bigger penis than them.

Erick N. smoked hookah and cigarettes given to him by Poizner at Poizner's apartment. Poizner once massaged Erick's feet at a hotel and on one occasion kissed him on the neck. Poizner asked Erick about masturbation and talked about girls giving Erick oral sex

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