Woodward v. Diaz, 2:12-cv-2168 JAM DAD P

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Writing for the Court: DALE A. DROZD
• Docket Number: No. 2:12-cv-2168 JAM DAD P,2:12-cv-2168 JAM DAD P
• Parties: HEATH DANIEL WOODWARD, Petitioner, v. RALPH DIAZ, Actin Warden, Respondent.
• Decision Date: 04 November 2013

HEATH DANIEL WOODWARD, Petitioner,
v.
RALPH DIAZ, Actin Warden, Respondent.

No. 2:12-cv-2168 JAM DAD P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: November 4, 2013

FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on October 6, 2009, in Sacramento County Superior Court on charges of committing lewd and lascivious acts on two children under the age of fourteen violation of California Penal Code § 288(a). He seeks federal habeas relief on the following grounds: (1) the charges brought against him were time-barred under the applicable state statute of limitations and the charging document was deficient; (2) a portion of his trial was conducted outside petitioner's presence in violation of his rights under the Sixth and Fourteenth Amendments; and (3) his trial counsel provided him ineffective assistance in violation of his rights under the Sixth Amendment. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for federal habeas corpus relief be denied.

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I. Background¹

This case arises from the molestation of two children in 2000, and petitioner's subsequent trial and conviction in 2009 for those crimes. In a partially published opinion affirming petitioner's judgment of conviction in large part,² the California Court of Appeal for the Third Appellate District provided the following factual summary:

In July 1999, [petitioner] "met" T.A. online and they developed a relationship over the ensuing months. In December 1999, T.A. and her two daughters, T.C. and A.G., moved from Florida to live with [petitioner] in Sacramento, California. T.C. was nine years old and A.G. was seven years old.
One day in spring 2000, [petitioner] was sitting on the couch watching a movie with T.C. and A.G. T.A. was not home at the time. [Petitioner] told A.G. to come to his bedroom with him. [Petitioner] sat in his computer chair and instructed A.G. to sit on his lap. [Petitioner] began touching A.G.'s leg before putting his hand into her pants. He rubbed her vagina and inserted his finger. [Petitioner] stopped when T.C. called for her sister from the living room. [Petitioner] told A.G. not to tell anyone.
T.A. and her daughters moved out of [petitioner's] apartment after living with him for approximately three months. After moving out, T.C. and A.G. visited defendant twice a month. On two or three occasions, the girls spent the night at [petitioner's] apartment.
During a sleepover in the spring of 2000, [petitioner] and T.C. were sitting on a couch in the living room and watching a movie. T.C. was wearing a knee-length nightgown. [Petitioner] was lying with his back against the end of the couch, and T.C. was "laying against him" in a "sort of spooning" position. [Petitioner] put his hand on her vaginal area on the outside of her clothes. T.C. felt uncomfortable with the touching, which lasted about five seconds. She got up and left the room. After the incident, T.C. asked her mother to not spend the night at [petitioner's] apartment anymore.

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In May 2006, T.C. and A.G. reported to law enforcement that [petitioner] had molested them.

People v. Woodward, 196 Cal. App. 4th 1143, 1147 (2011), review denied (Sept. 28, 2011), cert. denied, ___ U.S. ___, 132 S. Ct. 1933 (2012).

The 2009 conviction challenged in this federal habeas action stems from criminal proceedings initiated against petitioner while he was already serving a sentence of imprisonment imposed in connection with a prior conviction he had suffered for engaging in a lewd and lascivious act on his daughter and for possession of child pornography. Woodward, 196 Cal. App. 4th at 1145. Importantly, for purposes of consideration of petitioner's pending application for federal habeas relief, the prosecution against petitioner for the molestation of victims T.C. and A.G. was initiated the more than six years after the molestation had allegedly occurred. Id. at 1145-46. In the prosecution at issue here, petitioner "was also alleged to have committed the offenses against multiple victims within the meaning of [California's] 'One Strike Law.'"³ Id. at 1145 (citing Cal. Penal Code § 667.61(e)(5)).

In 2009 a Sacramento County Superior Court jury convicted petitioner on both charges of lewd and lascivious acts against T.C. and A.G., and also found that he committed the offenses against multiple victims within the meaning of California's "One Strike Law." Id. at 1149. Petitioner was ultimately sentenced by the court to serve two consecutive terms of 15 years-to-life imprisonment. See id. at 1145, 1153; see also Pet. for Writ of Habeas Corpus (ECF No. 1) at 1.⁴

On direct appeal from his 2009 judgment of conviction, petitioner argued that: (1) that the trial court lacked jurisdiction because the statute of limitations had run on the lewd and lascivious conduct charges relating to T.C. and A.G.; (2) that the trial court was precluded from sentencing him under California's "One Strike Law" to an indeterminate term of up to life imprisonment

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because the prosecution had failed to expressly plead that petitioner was ineligible for probation; (3) that he was personally absent from portions of his trial in violation of his constitutional rights; and (4) his trial counsel provided him ineffective assistance by failing to adequately raise these issues at trial. As noted, the California Court of Appeal rejected these arguments and affirmed petitioner'sjudgment of conviction. Id. at 1149-53.

In the unpublished portion of its opinion, the state appellate court considered and rejected petitioner's argument that the applicable state law statute of limitations had run on the lewd and lascivious conduct against multiple victims charges brought against him. In this regard, that court stated:

Defendant contends that the six-year statute of limitations for his crimes expired before the prosecution filed its complaint. We reject the contention.
* * *Defendant was convicted of two counts of violating subdivision (a) of section 288. Ordinarily, a conviction of subdivision (a) of section 288 is subject to a maximum prison term of eight years. [fn. omitted] Offenses subject to prison terms of no more than eight years must be prosecuted within six years after the offense was committed. To this end, section 800 provides that '[e]xcept as provided in Section 799, prosecution for an offense punishable by imprisonment in the state prison for eight years or more shall be commenced within six years after commission of the offense." Thus, defendant asserts that prosecution was time-barred because the district attorney did not charge him until April 2008 - - more than six years after the offenses committed in 2000. Not so.
Offenses subject to life imprisonment do not have a limitation on the time to commence a prosecution. Section 799 provides, in relevant part, that "[p]rosecution for an offense punishable by death or by imprisonment in the state prison for life or for life without the possibility of parole, or for the embezzlement of public money, may be commenced at any time."
When an offense is subject to alternate sentencing schemes, it is the longest potential period of confinement without any sentence enhancement that determines the applicable statute of limitations.
* * *Although violations of section 288, subdivision (a), are generally subject to a maximum eight-year prison term, they may also be prosecuted under the One Strike Law when committed against multiple victims. Section 667.61 imposes a 15-year-to-life

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prison sentence for each conviction of a lewd and lascivious act on a child under age 14 if "[t]he defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim." (§ 667.61, subd. (e)(5); see also id. at subds. (b) & (c)(7); see also § 288, subd. (a).)
* * *[ ] Defendant was sentenced under the One Strike Law because he molested multiple victims within the meaning of subdivision (e)(5) of section 667.61. The multiple victim circumstance in the One Strike Law provides for a life sentence and does not qualify as an enhancement. (Perez, supra, 182 Cal. App.4th at p. 238). In other words, the One Strike Law imposes a life sentence without any resort to separately proved sentence enhancements. As the California Supreme Court has held, "Section 667.61 sets for an alternative, harsher sentencing scheme for certain forcible sex crimes." (People v. Macebo (2002) 27 Cal.4th 735, 738 (Macebo), italics added.) Because the life sentence imposed by the One Strike Law is not an enhancement, section 799 applies to preclude any deadline to file the charges in this case.
* * *In short, the One Strike Law's imposition of a life term for child molestation committed against multiple victims is not subject to a statute of limitations. (§§ 667.61, subds. (b), (c)(7), (e)(5), 799.) Thus, we reject defendant's contention that his trial attorney was ineffective for failing to move to dismiss the case as time-barred. Any objection to defendant's prosecution on the basis of the statute of limitations would have been meritless. (People v. Ochoa (1998) 19 Cal.4th 353, 463 ["Representation does not become deficient for failing to make meritless objections"].)

(ECF No. 11-1 at 9-12, 14.)

In the...