Sosa v. Bird

• Decision Date: 17 March 2023
• Docket Number: 22cv1022-JLS(BLM)
• Parties: JORGE LUIS SOSA, Petitioner, v. LANDON BIRD AND ROB BONTA, Respondents.
• Court: U.S. District Court — Southern District of California

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JORGE LUIS SOSA, Petitioner, v. LANDON BIRD AND ROB BONTA, Respondents.

No. 22cv1022-JLS(BLM)

United States District Court, S.D. California

March 17, 2023

REPORT AND RECOMMENDATION FOR ORDER DENYING (1) PETITION FOR WRIT OF HABEAS CORPUS AND (2) REQUEST FOR AN ORDER TO SHOW CAUSE OR AN EVIDENTIARY HEARING

[ECF No. 1]

Hon Barbara L. Major United States Magistrate Judge

This Report and Recommendation is submitted to United States District Judge Janis L. Sammartino pursuant to 28 U.S.C § 636(b) and Civil Local Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California. On July 13, 2022, Petitioner, Jorge Luis Sosa, a state prisoner commenced these habeas corpus proceedings pursuant to 28 U.S.C. § 2254. ECF No. 1 (“Pet.”). Petitioner challenges the validity of his state court conviction for twenty-six sex crimes against his two grand nephews. See Pet. Respondent answered on September 12, 2022. ECF No. 4-1 (“Ans.”). Petitioner's Traverse was filed on October 19, 2022. ECF No. 6 (“Trav.”).

This Court has considered the Petition, Answer, Traverse, and all supporting documents filed by the parties. For the reasons set forth below, this Court RECOMMENDS that Petitioner's Petition for Writ of Habeas Corpus be DENIED.

FACTUAL BACKGROUND

The following facts are taken from the California Court of Appeal's January 22, 2021 opinion. Lodgment 1. This Court presumes the state court's factual determinations to be correct, absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); Miller-El v Cockrell, 537 U.S. 322, 340 (2003); see also Parke v. Raley, 506 U.S. 20, 35 (1992) (holding findings of historical fact, including inferences properly drawn from such facts are entitled to statutory presumption of correctness).

1. Sosa's Abuse of IP and LS

Jorge Sosa was the uncle everyone loved. He was fun-loving involved with his family, and supportive. Sosa had no children of his own, but maintained strong ties with his extended network of nieces and nephews. His house in Escondido was a gathering place, and it was not uncommon for Sosa and his long-term partner Robert to open their home to family members or friends who needed a place to stay. At various times, both the garage and the bar were converted into bedrooms to accommodate more people.

So when Sosa's niece Ivon found herself laid off after giving birth to her fifth child, she turned to her uncle, who had always been her confidant and a source of support. Sosa suggested she and the kids move to Escondido to live with him, rent free, until she got on her feet. He said it would be a new beginning for all of them. Ivon agreed.

They moved into Sosa's house in early 2011. Ivon and her infant daughter stayed in a bedroom while her two older daughters and two sons, IP and LS, slept in the converted bar. The family stayed until 2013, when Ivon leased an apartment just down the street. Even then, Sosa's house remained a central location in the children's lives. One of Ivon's older daughters, IH, lived there during her senior year in high school and the boys were regularly sent over to their uncle's house when Ivon needed childcare. Throughout the years, Sosa also helped Ivon financially. She accepted small loans from him, including $1,700 in 2017 [when] she needed to file for bankruptcy.

At some point after they moved into the house, Sosa began molesting IP. IP generally remembered that it happened “throughout middle school,” but he also recalled incidents from the period when his family lived with Sosa and after they moved out. IP turned nine in the summer of 2011 so he could have been as young as eight when the abuse started. It continued until mid- 2016, and was only disrupted because IP moved to Los Angeles to live with his father. After that, Sosa turned his attention to LS. The younger boy was about twelve years old at the time.

For years, IP remained silent about the abuse; he was embarrassed and thought no one would believe him given Sosa's beloved status in the family. He also noted that Sosa was “very nice” to Ivon and that “he helped us just a lot.” But in early 2018, two events prompted IP to tell someone. The first was a holiday gathering where he learned from his cousin that his Uncle Patrick had also been abused by Sosa as a child. The second was a classroom conversation where IP's male teacher shared that he had been molested as a child. That same day IP called Patrick to tell him what happened. Patrick assured IP it was not his fault and, at IP's request, called Ivon to tell her. While she was still on the phone with Patrick, Ivon asked LS if Sosa had touched him, and her youngest son nodded. The next day, Patrick drove down from Los Angeles with IP and they went with Ivon and LS to file a police report in Escondido. Within a few days, both IP and LS had forensic interviews to document their accounts.

Sosa was charged by the San Diego District Attorney with 27 counts in total; counts 1 through 25 concerned his abuse of IP, alleging oral copulation with a child 10 years or younger (Pen. Code, § 288.7, subd. (b)),^[1] forcible lewd or lascivious acts on a child under 14 years (§ 288, subd. (b)(1)), and aggravated sexual assault of a child under 14 years (§ 269, subd. (a)). Only counts 26 and 27 addressed Sosa's abuse of LS, alleging lewd or lascivious acts on a child under 14 years, but without force (§ 288, subd. (a)). Most counts also included allegations of more than one victim (§ 667.61, subds. (b), (c) and (e)), and substantial sexual conduct with a child under 14 (§ 1203.66, subd. (a)(8)).

2. The Trial

LS, IP and Patrick all testified about Sosa's abuse. While no other family members witnessed anything inappropriate, IH did notice that Sosa “catered to the boys,” took them on special outings, and generally paid more attention to them.

LS testified that Sosa touched him inappropriately once, likely sometime in 2017, after his brother moved to Los Angeles. They were in Sosa's bedroom with the door closed. At first, Sosa asked to see LS's pubic hair. Then he reached down LS's pants and touched his nephew's penis with his hand. Although LS initially reported to police that this happened twice, he only testified to one incident at trial.

IP recounted a much longer history of abuse. His uncle was a father figure whom he trusted and loved very much. Sosa started “touching” him after his family moved into the house. It happened “whenever we would be alone” and usually took place in Sosa's room.^[2] He testified in general terms that Sosa orally copulated him often and typically touched his penis during these episodes, which happened more than once both while he lived with Sosa and afterward. He could not remember every time the abuse happened, but he did have distinct memories of some incidents: one that took place in the shower, one in his sister's room, one in the garage, and events that occurred the night before Sosa took him to the fair.

As to the shower incident, IP remembered one time when the other shower in the house was occupied by one of his siblings, so he went into the master bathroom-which was connected to Sosa's room-to shower. Sosa came in, reached into the shower, touched his penis, and told him he loved him and would not hurt him.

The garage incident took place after IP's family moved down the street. At his mom's instruction, IP went to Sosa's house one day after school to pick out a Halloween costume. Sosa took him to the garage where the costumes were stored and pulled out a box, but then took off IP's pants, held his arms down, and orally copulated him. He stopped when they heard Ivon's car pull up in the driveway. This was the only time something happened in the garage.

The incident in IH's room also occurred during this general time frame. IH moved back to Sosa's house during her last year in high school and stayed in the same room the children had previously shared. At some point, IP, Sosa and IH were all in that room when she left to take a shower. Sosa then held IP down on the floor, took off his pants, touched IP's genitals with his hands, and orally copulated him. IH came back briefly, apparently to retrieve something she forgot, and Sosa pulled IP's pants back up and pretended he had been tickling IP. IH never saw anything inappropriate take place.

In addition to these distinct events, IP also remembered instances when the abuse escalated. On at least three occasions, Sosa made IP engage in sodomy.^[3]He used lotion on IP's penis and directed it to Sosa's “butthole”; this happened more than one time. IP did not provide granular details but did distinguish between the “butthole” and “outside of the butt” to indicate where his penis went. On one occasion, Sosa also used his penis to touch IP's butthole.

The last specific incident IP could remember took place the night before Sosa took IP and LS to the Del Mar fair in the summer of 2016. The boys spent the night, and IP was nearly asleep in the living room when Sosa got him up and pulled him into the bedroom. He stroked IP's penis with his hand, orally copulated him, and then touched IP's “butthole” with his finger. At that point, IP pushed his hand away and managed to leave. Sosa apologized. That same night, Sosa also made IP orally copulate him. This incident seemed difficult for IP to recount; he testified in general terms at the preliminary hearing that Sosa pulled his head toward Sosa's penis and tried to force copulation, but at trial he explained that was not how it happened. No physical force was used, he just trusted Sosa-who made him think it would be okay.

Patrick's account, which detailed three incidents from his childhood, was offered as propensity evidence. There were significant similarities between the type of behavior

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