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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

RALPH OLMEDO,

Petitioner,

 vs.

DERRAL G. ADAMS, Warden,

Respondent. 

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No. C 08-4467 CRB (PR)

ORDER DENYING 

PETITION FOR A WRIT OF

HABEAS CORPUS; DENYING

CERTIFICATE OF

APPEALABILITY

Petitioner, a state prisoner at Corcoran State Prison in Corcoran,

California, seeks a writ of habeas corpus under 28 U.S.C. § 2254 challenging a

conviction from Alameda County Superior Court. For the reasons set forth

below, the Petition for Writ of Habeas Corpus will be denied. 

PROCEDURAL BACKGROUND

On November 10, 2005, a jury convicted Petitioner of two counts of

continuous sexual abuse of a child. Cal. Penal Code § 288.5. On December 16,

2005, the trial court sentenced Petitioner to sixteen years in state prison.

On September 13, 2007, the California Court of Appeal affirmed the

judgment of the trial court and denied Petitioner habeas relief in a consolidated

opinion. People v. Olmedo, Nos. A112664 & A115376, 2007 WL 2677134 (Cal.

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Ct. App. Sept. 13, 2007); see Doc. #10, Ex. 12 at 1–43. On December 12, 2007,

the Supreme Court of California denied review. Doc. #10, Ex. 14. 

On September 24, 2008, Petitioner filed the instant Petition for a Writ of

Habeas Corpus. Doc. #1. The Court found that, when liberally construed, the

Petition appeared to state cognizable claims under 28 U.S.C. § 2254 and ordered

Respondent to show cause why a writ of habeas corpus should not be granted. 

Doc. #2. Respondent has filed an Answer, Doc. #9; Petitioner failed to file a

Traverse. 

 FACTUAL BACKGROUND

The California Court of Appeal summarized the facts of the case as

follows:

Prosecution Case

J.D., who was 10 years old at the time of trial,

testified that she lived with her mother and siblings,

as well as sometimes with her grandmother Carmen. 

She and her younger sister R. would sometimes go

with Carmen and her husband to the house of J.’s

Uncle Ralphie (her great uncle by marriage),

identified by her at trial as [Petitioner], and his wife

Esperanza. They sometimes went on weekdays and

sometimes on weekends. The children played or

watched television there.

[Petitioner] sometimes touched her when she

was at his house; it happened sometimes in the garage

and sometimes in the second bedroom. Once when J.

was sitting by herself in a rolling chair in the garage

watching television, [Petitioner] came in and sat in

another rolling chair. He pulled her chair toward him

and he put his fingers under her clothes and touched

the outside of her vagina “for a little bit.” [Petitioner]

did not say anything and J. did not say anything

because she was scared.

[Petitioner] touched J. in the garage other

times as well. He also touched her in the second

bedroom. Once, when she was sitting on the bed

watching television, [Petitioner] came in and sat

down on the bed next to her. He then touched her

vagina area (“where I go pee”) with his fingers, under

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1

 “On cross-examination, J. first said [Petitioner] had never put his fingers

‘where you go pee.’ She did not recall telling a police officer that he had slid

four fingers inside of her, then taken them out and rubbed her breasts. She

testified, however, that that was what happened.”

2

 “On cross-examination, [J] said she did not know that [Petitioner] was

touching R. until R. told their mother. She did not recall telling the police officer

that R. had told her that [Petitioner] was touching her too, but that they kept it to

themselves because they were scared.” 

3

 “R. identified [Petitioner] as Uncle Ralphie during trial.”

3

her clothes. That was not the only time he touched

her vagina in the second bedroom. [Petitioner] also

sometimes touched J.’s breasts with his fingers, under

her clothes. When he touched her vagina, he would

move his fingers.1

 She could not remember other

specific times when he touched her in the bedroom or

garage. [Petitioner] never said anything while he was

touching J. J. never told her mother or grandmother

about what [Petitioner] did because she was scared;

she thought she would get in trouble. It was J.’s

sister, R., who eventually said something to their

mother.2

R.D., who was eight years old at the time of

trial, testified that she used to visit her Uncle

Ralphie’s3

 house with her Grandma Carmen almost

every weekend. [Petitioner] touched her “chi-chis,”

her “colita,” and her “butt” during visits. He did this

at times in the garage, the second bedroom, and the

living room.

When she was in the garage, she would watch

television or sweep sawdust off the floor. Once,

when she was in the garage sweeping, [Petitioner]

came in and hugged her from behind and quickly

touched her vagina (“colita”) with his hands, outside

her clothes. That was not the only time he touched

her vagina in the garage. Once when R. was alone in

the second bedroom watching a movie and she got up

to change the channel, [Petitioner] came in and

hugged her from the front, touching her quickly on

the butt with his hands, over her clothes. Another

time, when R. was watching a movie in the living

room, [Petitioner] came in and hugged her from the

back. He touched her breasts (“chi-chis”).

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4

 “R. did not know at that time that [Petitioner] had also been touching J.;

when she said ‘our’ in describing where [Petitioner] had touched her, that was a

mistake.”

4

[Petitioner] never said anything when he

touched R. He touched her every time she was at his

house. R. did not tell her mother or grandmother

about the touching when it first started happening

because she was scared.

On cross-examination, R. testified that she first

told her mother about [Petitioner] and his touching

when she, her mother, and J. were at home watching

television and a commercial about belly dancers came

on. Her mother said, “I do not like that,” and R. said,

“Like Tio Ralphie,” and her mother said, “What?” R.

then told her mother where [Petitioner] had touched

her, saying, “on our chi-chis, on our colita and on our

butt.”4

 J. was sitting next to their mother at the time

R. spoke. R. believed the touching started when she

was five years old. [Petitioner] touched her more than

30 times altogether, always over her clothing and

always while giving her a hug.

Bertha Nevarez testified that she worked at the

Calico Center, “a child abuse listening coordination

center” in San Leandro. Prior to July 2004, she had

interviewed over a thousand children who had

allegedly been victims of physical or sexual abuse. 

She also had received ongoing training in child

forensic interviewing, including suggestibility. On

July 13, 2004, she interviewed J. at the Calico Center;

the interview was videotaped and transcribed. J. told

Nevarez that [Petitioner] touched her breasts, her

“butt,” and her “behind-butt.” On a drawing of a girl,

J. circled the girl’s vagina in describing her “butt,”

and the girl’s buttocks in describing her

“behind-butt.” J. said that [Petitioner] put his

“fingers inside” her “butt,” i.e., her vagina, although

Nevarez acknowledged that J.’s words were

ambiguous as to exactly what she meant by that.

Amparo Ozuna testified that she had been a

forensic child interviewer at the Calico Center for

three years and had interviewed well over 300

children prior to July 2004. She had received

ongoing training in child forensic interviewing. She

also had received various trainings on avoiding

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5

 “On cross-examination, Ozuna acknowledged that she did not have any

formal education in the area of child psychology, child development, or social

welfare. She did have an ‘AA’ degree in social science.”

6

 “Although Carmen’s daughter is called ‘Christina’ by many family

members, in this opinion, she will be referred to as ‘Maria,’ in conformity with

the trial court record.” 

5

suggestibility while interviewing children.5

 On July

13, 2004, she interviewed R. at the Calico Center; the

interview was videotaped. On a drawing of a girl, R.

circled the girl’s breasts, which she called “chi-chis”;

she circled the girl’s vagina, which she called her

“colita”; and she circled the girl’s buttocks, which she

called her “butt.” R. told Ozuna that [Petitioner] had

touched her “chi-chis, colita, and butt.” On

cross-examination, Ozuna testified that R. had said

that J. told her that [Petitioner] had touched her too,

and they had an agreement to keep it a secret. R. also

said that her mother had told her that Uncle Ralphie

was sick in the brain.

Carmen D., who was 45 years old at the time

of trial, testified that she had two children, Alberto

and Maria Christina (“Maria”).6

 Carmen came to

Oakland from Mexico when she was six years old,

along with her brother, Ruben, and her sister,

Esperanza, who is 16 years older than Carmen. Her

father and another brother, Juan, were already in

Oakland. [Petitioner’s] family had helped Carmen’s

father when he first came to the United States. Two

or three months after Carmen arrived in Oakland,

Esperanza married [Petitioner], who is some 30 years

older than Carmen.

When Carmen was eight or nine years old,

[Petitioner] began touching her. She occasionally

spent the night at [Petitioner] and Esperanza’s house,

and slept in the second bedroom. [Petitioner] would

get up early in the morning and bring coffee to

Esperanza, and then he would come into the room in

which Carmen was sleeping. He started out by

patting her leg to wake her up and it slowly

progressed to where he started touching her butt, and

then tried to kiss her on the lips. He then started

touching her breasts and vagina over her underwear. 

He later started touching her under her clothes,

including sticking his hands inside her underwear and

touching her vagina. He also put his finger in her

vagina. This touching happened while Carmen was

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7

 “Carmen testified on cross-examination that her mother said that if she

‘spoke up, it would kill my sister because of her health and that all we had to do

6

between the ages of eight and 14. On several

occasions when she was watching television in the

living room and the adults were gathered in the

kitchen, [Petitioner] would come into the living room,

sit next to her, and touch her. One time, when she

was about 12 years old, [Petitioner] came into the

living room, forced his knee between her legs, and

kissed her. [Petitioner] never said anything when he

touched her.

At the age of eight or nine, Carmen told her

mother that [Petitioner] was touching her. Her

mother did not want Carmen to tell Esperanza

because she did not want [Petitioner] to stop her

(Carmen and Esperanza’s mother) from visiting

Esperanza. Her mother never called the police and

Carmen never told Esperanza about the touching

because “I loved my sister, because I didn’t want to

hurt her, because I didn’t want my family to be pulled

away.” After the touching stopped, when Carmen

was about 14 years old, she put the touching “in the

back and just moved on and tried to see [Petitioner]

as my sister’s husband, as the man that I learned to

care about as a father.”

After she had her children, Carmen continued

to see Esperanza and [Petitioner]. She did not think

about whether [Petitioner] might touch someone else

because she wanted to be around her sister; she also

did not believe he would do that to her daughter. 

Starting when her daughter Maria was about six years

old and her son Alberto was about eight years old, her

children would sometimes spend the night at the

home of [Petitioner], who also had two children. 

Carmen’s children were close to their cousins; the

cousins were her children’s godparents.

Starting at age six, Maria would spend the

night at [Petitioner’s] house once or twice a month. 

When Maria was eight years old, Carmen found out

that [Petitioner] was touching her. Carmen’s

sister-in-law, Gloria, told her and Maria said it was

true. Carmen did not do anything about it because

she did not want to be away from her family; she did

not want to hurt her sister, who was like a second

mother to her; and she did not want her mother not to

be able to visit her daughter, Esperanza.7

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was to keep a better watch on the kids when we went over there and just to make

sure that [Petitioner] wasn’t around them.’ She acknowledged that she ignored

the advice to keep Maria away from [Petitioner].”

7

When Maria was near her 14th birthday,

someone called from Maria’s school and asked

Carmen to come to the school. Carmen spoke to

officers from the Oakland Police Department, who

asked whether she knew her daughter was being

molested by [Petitioner]. She said she knew, and also

said she had been molested by [Petitioner] as well. 

Carmen asked Maria not to press charges because “I

figured if I could forget about it, if I was strong

enough to forget about it, she would be able to do the

same thing and put it behind her, and we would keep

the family together.” Carmen and her daughter did

not have a relationship after that. However, Carmen

was always very close to her two granddaughters, J.

and R.

When Carmen and her husband moved to 60th

Avenue in Oakland in 2003, J. and R. were living

with them part of the time and with their mother,

Maria, part of the time. Although she and Maria were

not talking to each other, Maria would drop the girls

off at her house. The new house was two and

one-half blocks from [Petitioner’s] home. Carmen

visited her sister, Esperanza, almost every weekend

between October 2003 and June 2004, and would

always bring J. and R. with her.

Carmen never thought that [Petitioner] might

touch her granddaughters because he was

recuperating from bypass surgery and she thought

that, because he had been close to death, he would try

to improve the way he had been. Carmen never told

her daughter that she was taking the girls to

[Petitioner’s] house because she and Maria did not

have good communication and because when she had

the girls with her, she was responsible for them.

[Petitioner] was at home when Carmen

brought the girls there. She would watch movies, talk

with her sister, and just be there when she visited,

mainly staying in the living room and kitchen. Her

granddaughters would sometimes be in the yard,

sometimes in the garage, but mostly in the second

bedroom because they watched cartoons there. 

[Petitioner’s] grandchildren would often be there too,

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and there were a lot of kids going in and out, never

staying in one place.

On June 18, 2004, Carmen’s son, Alberto,

brought J. and R. to Carmen’s house. Alberto told

her to talk to the girls. She first called J. into her

bedroom and said Alberto said she had something to

say. J. just started crying, and Alberto finally said,

“Ralph happened. That’s what happened.” Carmen

hugged J. R. came in and the girls told her what had

happened with [Petitioner]. Carmen was afraid to tell

Maria because they were not on good terms and

Carmen did not want to get into a confrontation with

her. Alberto convinced Carmen to talk to Maria, and

Carmen told her she was sorry and said, “[W]hatever

you decide to do, I’m with you. If you want to speak

up, I’m with you.” She wanted to let her daughter

know that, as much as she loved her family or

thought she was protecting her family, she had put

her granddaughters at risk by trying to pretend this

would not happen.

That evening, Carmen went to [Petitioner’s]

house, where she had a conversation with him. She

was not satisfied with the conversation. The next

day, Saturday, Carmen talked to Maria, who said she

was definitely going to call the police; she was not

going to let [Petitioner] get away with it again. The

following day, Sunday, [Petitioner’s] son called early

in the morning and said [Petitioner] wanted Carmen

to come over and talk to him. She went to

[Petitioner’s] house. He was alone in the living

room. [Petitioner] said he did not think he was doing

anything wrong, asked if there was any way to take

care of this without getting anyone else involved, and

asked if $5,000 would help. He offered the money

“to make it better.” She said, “how dare he tries [sic]

to buy my girls. My girls were not for sale. Their

future is not for sale.”

Carmen and Maria agreed that Carmen would

call the police since the girls had been under her care

and were her responsibility, and she did so. The

police came to her home on June 23 and took J. and

R. outside to their patrol cars to take statements from

them.

Maria Christina D., who was 26 years old at

the time of trial, testified that she has five children;

the two oldest are J. and R. When she was very

young, Maria was close to her Aunt Esperanza and

her Uncle Ralph, [Petitioner]. Growing up, she was

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 “Maria was pregnant at the time and gave birth four days later, on June

22.”

9

close to her cousins, Robert and Sylvia, who are

[Petitioner’s] children.

When Maria was five or six years old,

[Petitioner] began touching her inappropriately in the

living room at his house. She stayed overnight at his

house regularly and would sleep on the living room

couch. She remembered waking up to him touching

her very early in the morning before anyone woke up. 

At first he touched her over her clothes, and later he

started touching her breasts and vagina under her

clothes. The worst was when he put his fingers inside

her vagina. The touchings went on for a total of nine

or ten years and “happened so many so many times, I

can’t keep count.” [Petitioner] never said anything

when he touched her.

In 1993, Maria first told relatives at a family

party, including [Petitioner’s] children, that

[Petitioner] had been molesting her. The family did

nothing about it. That same year, when she was in

junior high school, she told a school psychologist

about the molestation. The school called the police. 

A police officer came and took a statement from

Maria, which she signed. She was asked if she

wanted to press charges and she said no, because she

did not want to split up the family. After that, she

only occasionally saw [Petitioner] at family parties. 

She forgave him.

Maria’s daughters, J. and R., were very close

to their grandmother, Carmen, and would sometimes

spend the night at her house on weekends. Between

October 2003 and June 2004, Maria was not talking

to her mother. Maria did not know her daughters

were regularly going over to her Aunt Esperanza’s

house on weekends.

On June 18, 2004,8

 Maria was at home with

her daughters when R. blurted out that “Uncle

Ralphie touches us here, here and here,” while

pointing to her chest, vaginal area, and behind area. 

Maria responded, “No, no. Don’t tell me that,” and J.

said, “You see, [R.D.]. You weren't supposed to say

nothing. It was a secret.” J. was mad and would not

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9

 “On cross-examination, Maria testified that just before R. told her about

the touchings, a commercial was on television and Maria told them she did not

want them to sleep in their underwear and was trying to explain to them that men

‘have bad thoughts.’ At that point, R. said, ‘Oh, like Tio Ralphie when he

touches me here, here and here?’” 

10

talk about it.9

 Maria’s brother came in and, after she

told him what had happened, he asked her what she

wanted to do. She said she was going to call the

police. “I knew when they first told me. I knew that

I was going to put an end to this.” Her brother then

took the girls to her mom’s house. Maria called the

police that same day, though officers did not come to

take a report until later.

Alberto Moran, Carmen’s son and Maria’s

brother, testified that, before June 2004, he was close

to [Petitioner’s] family. After June, he, his mother,

and his sister were not close to [Petitioner’s] family. 

In June 2004, he lived in an apartment in the same

building as his sister, Maria. On June 18, 2004,

Maria called Alberto into her apartment; she was

crying. She asked J. and R. to tell him what had

happened. J. did not want to talk, but R. said that her

Uncle Ralph had touched her and pointed to her

breasts and her vagina. Alberto and his sister talked

about what to do and, at some point, it was decided

that he would take the girls to his mother’s house to

tell her, which he did. While they were there,

Carmen called J. into her room and asked her what

had happened. J. started crying, but did not say

anything. When R. came in, she told Carmen what

she had told Alberto earlier.

Alberto and his mother, Carmen, went to

[Petitioner’s] house later that day. Carmen and

[Petitioner] went into the garage and Alberto waited

in the living room with [Petitioner’s] son, Robert. 

Alberto told Robert what the girls had said. Robert

just shook his head and put his hand over his head.

Alberto and his mother eventually left.

Defense Case

Oakland Police Officer Kevin McDonald

testified that he interviewed J. in his patrol car on

June 23, 2004. He took her statement, at which time

she reported that, inter alia, after “sliding his four

fingers inside me,” [Petitioner] would “take them out

and rub my breast more.” J. also said she and R. had

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told their mother about [Petitioner’s] conduct “[a] few

months ago.” On cross-examination, Officer

McDonald acknowledged that he had received no

special training on interviewing child witnesses. He

also acknowledged that J. talked about [Petitioner]

putting his fingers inside her underwear.

Susana Reyes-Oregon testified that she had

lived next door to [Petitioner] and his family for 17

years, since she was 12 or 13 years old. Between

ages 12 and 15, she was regularly at [Petitioner’s]

house and was occasionally alone with him. He

never touched her inappropriately, nor had she ever

seen him touch any other girls inappropriately. She

had never known [Petitioner] to be dishonest and she

had allowed her six-year-old daughter and

four-year-old son to be in his presence.

Martha Estella Zamarripa, Susana

Reyes-Oregon’s sister, testified that she had lived

next door to [Petitioner’s] family since she was five

years old. Zamarripa was at [Petitioner’s] house two

to three times a week between the ages of five and 12. 

 [Petitioner], with whom she was never alone, never

touched her in a way that made her uncomfortable. 

She never saw him touch other young girls in a way

that was inappropriate. He was always a nice

neighbor and she never knew him to be untruthful.

Karina Sanchez, who was 21 years old at the

time of trial, testified that Esperanza is her aunt. She

had known [Petitioner] all her life and had been alone

with him on several occasions between the ages of

eight and 15. He never touched her in a way that

made her uncomfortable and she never saw him touch

any other girls in an inappropriate way. She testified

that [Petitioner’s] reputation for honesty and

truthfulness is that he is a good and honest man.

Sanchez testified that Carmen’s reputation is that she

is flaky. Maria’s reputation is that she lies.

Sylvia Frates, [Petitioner’s] daughter, who was

37 years old at the time of trial, testified that she is

married and has two children, a girl who is seven

years old and a boy who is four years old. There is a

big age difference between her and Maria and they

were not close growing up. Sylvia and her brother,

Robert, were godparents to Maria and her brother

Alberto. She never heard allegations that her father

had touched Maria inappropriately before the present

case arose. Growing up, none of her friends ever said

[Petitioner] made them uncomfortable or had touched

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28 12

them inappropriately. She never saw him act in an

inappropriate way toward any of her girlfriends.

Sylvia saw Carmen at [Petitioner’s] house every

weekend between October 2003 and June 2004, but

Sylvia only remembered J. and R. being there two or

three times.

Roberto Olmedo, [Petitioner’s] son, who was

37 years old at the time of trial, testified that he had

three children, two girls, ages seven and two, and one

boy, age 10. Between October 2003 and June 2004,

Roberto was renting a house next door to his parents

and was at their house frequently. During his teen

years, he was close to his cousins Maria and Alberto

and hung out with them on a weekly basis at their

grandmother’s house; he did not recall them ever

spending the night at his parents’ house.

Roberto recalled Maria accusing [Petitioner]

of molesting her in 1993, but he did not give it any

value. She was intoxicated at the time. Roberto’s

children were at [Petitioner’s] house often and

[Petitioner] never acted inappropriately with them. 

He learned about the allegations against [Petitioner]

regarding J. and R. after Carmen came over to talk to

[Petitioner]; she looked like something was bothering

her and, after she left, [Petitioner] told him what she

was bothered about. Later, at [Petitioner’s] request,

Roberto called Carmen and asked her to come over.

That conversation got pretty loud, with Carmen being

the loudest.

Robert Frates, [Petitioner’s] son-in-law and

Sylvia Frates’s husband, testified that he had known

[Petitioner] for 10 years. Between October 2003 and

June 2004, he was at [Petitioner’s] house almost

daily. He never saw [Petitioner] touch a child in an

inappropriate way and he had no concerns about

leaving his children with [Petitioner]. Carmen was at

[Petitioner’s] house often, and she frequently had J.

and R. with her. He saw them there on a weekly

basis, on average. He never saw either girl alone with

[Petitioner]. It was a small house and there were

always a lot of people there. It is difficult for

anybody to be alone in [Petitioner’s] house.

Esperanza Olmedo, who was 62 years old at

the time of trial, testified that she had been married to

[Petitioner] for 40 years and had also moved into

their home on 62nd Street in Oakland 40 years ago. 

When Esperanza’s younger sister Carmen (who she

called Carmelita) was between the ages of five and

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14, she never spent the night at Esperanza and

[Petitioner’s] house. Carmen only came to the house

with their mother and father, and Esperanza was not

aware of Carmen ever being alone with [Petitioner]

because there were always so many people in the

house. Carmen never said anything to Esperanza

about [Petitioner] touching her in an inappropriate

manner. She and Carmen were not close after

Esperanza married [Petitioner] because Carmen got

married at a very young age.

As far as Esperanza could recall, her niece,

Maria, never spent the night at her and [Petitioner’s]

house when Maria was between the ages of five and

15. She never felt particularly close to Maria.

From 2003 through June 2004, there were

always lots of children at Esperanza’s home. Three

of her grandchildren lived with her and the neighbors’

children came over too. During that time, she did not

recall seeing children alone in the house. She never

saw her grandnieces, J. and R., alone in any room

with [Petitioner] during that time either; there were

always other kids with them. Also, the children were

supposed to keep the door open in the rooms they

were in. There was no door between the kitchen and

living room, and it was possible to see inside the

second bedroom from one of the chairs at the kitchen

table. The house had a garage in the backyard and

there also was a big, vicious dog in the backyard. 

The children were not allowed to go in the backyard

without a grownup or unless the dog was tied up or

put in its dog run. They were not allowed in the

garage without adult supervision.

In the year before June 2004, when Carmen’s

husband was painting Esperanza and [Petitioner’s] 

house, Carmen came over three or four days a week

and also on the weekends to watch movies. Carmen

brought J. and R. to the house only two or three times

on the weekends. The girls would play outside with

the other children or watch cartoons with the older

kids in the second bedroom or the living room. 

Between October 2003 and June 2004, Esperanza

never saw J. or R. acting unusually or trying to stay

away from [Petitioner].

[Petitioner] testified that he was born in 1929

in Oakland. After he and Esperanza married in 1966,

Carmen would come to their house to visit with her

family, never alone. She never spent the night at his

house. When she was a girl, he never approached her

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while she was sleeping and touched her and never

touched her in the living room of his house. He never

heard of Carmen alleging that he had touched her

inappropriately before this case started. He often was

the earliest one up in the morning at his house and,

while everyone else was sleeping, would get up and

make coffee. He would then bring coffee to

Esperanza to wake her up.

[Petitioner] saw Maria, Esperanza’s niece, at

family get-togethers when she was a child. He did

not recall her spending the night at his house. He

never placed his hand under her clothes and rubbed

her breasts or vaginal area. He learned that she had

made allegations about his touching her in about

1993. The police never came to talk to him about the

allegations.

Maria’s daughters, J. and R., would come over

to his house at times with Carmen between January

2003 and June 2004. He never touched J. on her

breasts, vaginal area, or butt, over or under her

clothes. He first learned of these allegations when

Carmen came to his house on June 18, 2004. He was

surprised by the allegations and told her they were

not true. A few days later, [Petitioner] had his son,

Robert, call Carmen and ask her to come over. She

came over with her son, Alberto. [Petitioner] offered

her money because she was having financial

problems and he thought she needed money and was

scheming. So he told her he had just requested

$5,000 from his 401-k plan. He said: “We can take

care of the situation. Otherwise, this can go into a

very messy, expensive situation.” Carmen did not

want his money.

[Petitioner] never touched R. in a sexual way. 

He never touched either J. or R. in a way intended to

arouse himself or anybody else. Nor was there any

truth to the claims of Maria or Carmen that he

touched them inappropriately.

Doc. #10, Ex. 12 at 2–15.

//

//

//

LEGAL STANDARD

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Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), codified under 28 U.S.C. § 2254, this Court may entertain a petition

for habeas relief on behalf of a California state prisoner “only on the ground that

he is in custody in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2254(a). The writ may not be granted unless the state

court’s adjudication of any claim on the merits: “(1) resulted in a decision that

was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States; or (2)

resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d). Under this deferential standard, federal habeas relief will not be

granted “simply because [this] [C]ourt concludes in its independent judgment that

the relevant state court decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must also be unreasonable.” 

Williams v. Taylor, 529 U.S. 362, 411 (2000). 

While circuit law may provide persuasive authority in determining

whether the state court made an unreasonable application of Supreme Court

precedent, the only definitive source of clearly established federal law under 28

U.S.C. § 2254(d) rests in the holdings (as opposed to the dicta) of the Supreme

Court as of the time of the state court decision. Williams, 529 U.S. at 412; Clark

v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). 

The state court decision to which 28 U.S.C. § 2254 applies is the “last

reasoned decision” of the state court. See Ylst v. Nunnemaker, 501 U.S. 797,

803–04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091–92 (9th Cir. 2005). The

last reasoned decision constitutes an “adjudication on the merits” for purposes of

28 U.S.C. § 2254(d) if the court resolved the rights of the parties based on the

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substance of the claim, rather than on the basis of a procedural or other rule that

precluded the state court from reviewing the merits. Barker, 423 F.3d at 1092.

CLAIMS & ANALYSIS

Petitioner states he is entitled to relief under 28 U.S.C. § 2254 by raising

the following claims: (1) the trial court erred in admitting evidence of

Petitioner’s prior uncharged sexual offenses in violation of his right to due

process; (2) the trial court erred in refusing to allow a defense expert to testify in

violation of Petitioner’s right to present a defense; (3) the trial court erred in

refusing to allow trial counsel to question a witness about one of the victim’s

allegedly false molestation allegation against Petitioner in violation of his right to

confrontation; (4) the prosecutor engaged in misconduct that violated Petitioner’s

constitutional rights; and (5) trial counsel provided ineffective assistance at

various stages of Petitioner’s trial. Doc. #1 at 6 & 9. 

Respondent denies that Petitioner suffered any deprivation of

constitutional rights and claims that he has failed to show that the state appellate

court decision adjudicating his claims was contrary to, or involved an

unreasonable application, clearly established federal law, as determined by the

United States Supreme Court, or was based on an unreasonable determination of

the facts in light of the evidence presented in the trial court. Doc. #9 at 2. 

Respondent further argues that Petitioner’s claims of trial court error in refusing

to allow trial counsel to question a witness regarding the victim’s false

molestation allegation and of prosecutorial misconduct are procedurally barred. 

Id. Each claim is analyzed in turn below. 

//

//

1. Alleged Due Process Violation Resulting from Admission of

Evidence of Prior Uncharged Sexual Offenses

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10 California Evidence Code, section 1108, subdivision (a) provides: “[i]n

a criminal action in which the defendant is accused of a sexual offense, evidence

of the defendant’s commission of another sexual offense or offenses is not made

inadmissible by Section 1101, if the evidence is not inadmissible pursuant to

Section 352.” 

 Evidence Code section 1101 provides: “(a) Except as provided in this

section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s

character or a trait of his or her character (whether in the form of an opinion,

evidence of reputation, or evidence of specific instances of his or her conduct) is

inadmissible when offered to prove his or her conduct on a specified occasion. 

(b) Nothing in this section prohibits the admission of evidence that a person

committed a crime, civil wrong, or other act when relevant to prove some fact

(such as motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake or accident, or whether a defendant in a prosecution for an

unlawful sexual act or attempted unlawful sexual act did not reasonably and in

good faith believe that the victim consented) other than his or her disposition to

commit such an act. (c) Nothing in this section affects the admissibility of

evidence offered to support or attack the credibility of a witness.”

 Evidence Code section 352 provides: “The court in its discretion may

exclude evidence if its probative value is substantially outweighed by the

probability that its admission will (a) necessitate undue consumption of time or

(b) create substantial danger of undue prejudice, of confusing the issues, or of

misleading the jury.” 

17

Petitioner claims the trial court violated his Fourteenth Amendment due

process rights by admitting evidence of uncharged sexual conduct pursuant to

California Evidence Code section 1108.10 Doc. #1 at 6. Respondent argues that

Petitioner is not entitled to federal habeas relief on this claim because there is no

clearly established United States Supreme Court precedent that holds the

admission of propensity evidence violates a petitioner’s right to due process. 

Doc. #9-1 at 20. The Court agrees. 

//

//

The California Court of Appeal provided the following background

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regarding this claim: 

[Petitioner] contends the trial court erred in

admitting testimony, pursuant to Evidence Code

sections 1101 and 1108,[] regarding prior sexual

offenses committed by [Petitioner].

A. Trial Court Background

Before trial began, the prosecutor filed a

motion seeking to admit evidence of [Petitioner’s]

prior uncharged sexual acts against Carmen and

Maria, as propensity evidence pursuant to [Evidence

Code] section 1108 and to prove [Petitioner’s] intent,

absence of mistake, or common scheme or plan

pursuant to section 1101, subdivision (b). Defense

counsel filed an opposition to the motion, arguing

that the evidence should be excluded pursuant to

[Evidence Code] sections 352 and 1101, subdivision

(a).

At the conclusion of a hearing at which both

counsel further argued the issues, the trial court found

the prior sexual offense evidence admissible under

both sections 1108 and 1101, subdivision (b), with

the exception of evidence that [Petitioner] had forced

both Carmen and Maria to touch his penis and

evidence that he attempted to rape Carmen, which

were [sic] excluded under section 352 as dissimilar

from the charged offenses. The court noted that its

ruling was “based on the [Petitioner’s] position of

trust, familiarity with the parties, access to the parties

and the similarities in and the actual touching. All of

those areas are areas of similarity.”

Doc. #10, Ex. 12 at 15 (footnote omitted). 

After providing this background, the California Court of Appeal upheld

the trial court’s decision to admit the prior sexual offense evidence as propensity

evidence under Evidence Code section 1108. Doc. #10, Ex. 12 at 16. The court

relied on People v. Falsetta (1999) 21 Cal.4th 903, 915, wherein the California

Supreme Court “found that section 1108, which permits introduction of

propensity evidence in cases alleging the commission of sexual offenses, [does]

not violate a defendant’s due process rights.” Id. 

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The United States Supreme Court has not found that the introduction of

propensity evidence offends the Due Process Clause; indeed, the High Court has

expressly left open that very question. Estelle v. McGuire, 502 U.S. 62, 75 n. 5

(1991). Because it is an open question, it is not clearly established federal law

that the admission of propensity evidence – such as evidence that Petitioner

committed prior sexual offenses similar to those he was accused of committing in

the instant matter – violates due process. Further, courts have “routinely allowed

propensity evidence in sex-offense cases, even while disallowing it in other

criminal prosecutions.” United States v. LeMay, 260 F.3d 1018, 1025–26 (9th

Cir. 2001) (holding that Rule 414 of the Federal Rules of Evidence, which, like

California Evidence Code section 1108, allows admission of evidence of prior

sexual offenses to show a propensity to commit the charged offense, does not

violate due process because the evidence is still subject to the trial court

balancing the probative value of the evidence versus its prejudicial effect, thereby

adequately safeguarding a defendant’s right to a fair trial). 

Because the Supreme Court has left open the question whether the

admission of propensity evidence violates due process, Petitioner is not entitled

to relief on his claim that the trial court’s admission of evidence of uncharged

sexual conduct under Evidence Code section 1108 was a violation of his right to

due process. See 28 U.S.C. § 2254(d); Williams, 529 U.S. at 412; Estelle, 502

U.S. at 75 n. 5; cf. Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir. 2008)

(because Supreme Court expressly reserved the question of whether using

evidence of prior crimes to show propensity for criminal activity could ever

violate due process, state court’s rejection of claim was not unreasonable

application of clearly established federal law). Accordingly, Petitioner’s claim

on this particular ground is DENIED. 

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2. Alleged Denial of Right to Present a Defense by Refusing Defense

Expert Testimony

Petitioner claims the trial court violated his Sixth and Fourteenth

Amendment right to present a defense by refusing defense expert testimony on 

the suggestibility of child witnesses and forensic interviewing techniques as they

apply to children. Doc. #1 at 6. Respondent argues that the California Court of

Appeal’s finding that the trial court properly excluded the proffered defense

testimony on the grounds that it was irrelevant and created the potential to waste

time and confuse the jury was not contrary to, nor an unreasonable application of,

clearly established United States Supreme Court precedent. Doc. #9-1 at 23–26. 

The Court agrees. 

The California Court of Appeal provided the following background

regarding this claim: 

[Petitioner] contends the trial court erred when

it denied his request to introduce the testimony of Dr.

Katherine Okla, who would have testified as an

expert on the suggestibility of child witnesses and the

forensic interviewing of children, thereby violating

his constitutional right to present a defense. 

. . . .

A. Trial Court Background

Over the prosecutor’s objection, defense

counsel sought to introduce Dr. Okla’s testimony in

the areas of suggestibility of child witnesses and

forensic interview techniques. During a discussion

with the trial court and the prosecutor regarding the

proposed expert testimony, the court asked defense

counsel what Dr. Okla’s findings were. Counsel

responded: “She found that in her opinion, there

were issues with, the technical phrase I believe she

used was, report monitoring procedures with respect

to how these children were dealt with. She found that

there were inconsistencies in the manner of J.’s

reporting with that of the normal of [sic] other

similarly situation children, based on the studies that

have been done. [¶] And the one other area I don’t

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remember, because I just took real brief notes, I asked

her to actually send me an email with an outline of

her findings, which unfortunately, apparently her

home was without power for a great deal of the

weekend, and I never got it. So I don’t know the full

extent of what her findings were, other than what I’ve

just related to the Court.”

The trial court held a[n Evidence Code]

section 402 hearing to enable it to determine whether

to permit Dr. Okla to testify as an expert witness at

trial. At the hearing, Dr. Okla testified extensively

regarding her training and experience, including, inter

alia, that she had a Ph.D. in clinical psychology from

the University of Michigan; that she had qualified as

an expert in the areas of forensic interview

techniques, suggestibility, and patterns of child sexual

abuse 40 to 50 times, primarily in Michigan, but also

in Arizona, Iowa, and Ohio; and that she had

interviewed thousands of children during her clinical

career, with the bulk of her current work involving

conducting forensic interviews of children or

critiquing such interviews.

Dr. Okla testified that she had reviewed the

videotaped interviews of J. and R. and the relevant

police reports prior to the hearing. She also testified

generally about issues related to forensic interviewing

and suggestibility in children. However, when asked

by both the prosecutor and the trial court whether she

had made any findings or reached any conclusions in

this case regarding suggestibility and the forensic

interviewing techniques used, she responded that she

had not. She also had difficulty responding to the

court’s question whether her role in the case was as a

consultant or an expert.

At the conclusion of the section 402 hearing,

the trial court ruled as follows: “I listened very

carefully to the proposed expert, and when [sic] she

had been posed any hypotheticals, whether she could

actually render an expert opinion. And it appears that

the information she has shared with the Court thus far

is that she would provide suggestions of what may

have resulted, in her opinion, to be pertinent areas to

control forensic interviews and areas of

suggestibility.

“She’s indicated that she has not rendered any

opinion with regards to suggestibility in this case, that

she’s not rendered any opinion with regards to

forensic technique. I did not hear any discussion with

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11 Evidence Code section 720 provides: “(a) A person is qualified to

testify as an expert if he has special knowledge, skill, experience, training, or

education sufficient to qualify him as an expert on the subject to which his

testimony relates. Against the objection of a party, such special knowledge, skill,

experience, training, or education must be shown before the witness may testify

as an expert; (b) A witness’ special knowledge, skill, experience, training, or

education may be shown by any otherwise admissible evidence, including his

own testimony.”

 Evidence Code section 801 provides: “If a witness is testifying as an

expert, his testimony in the form of an opinion is limited to such an opinion as is: 

(a) Related to a subject that is sufficiently beyond common experience that the

opinion of an expert would assist the trier of fact; and (b) Based on matter

(including his special knowledge, skill, experience, training, and education)

perceived by or personally known to the witness or made known to him at or

before the hearing, whether or not admissible, that is of a type that reasonably

may be relied upon by an expert in forming an opinion upon the subject to which

his testimony relates, unless an expert is precluded by law from using such matter

as a basis for his opinion.” 

22

regard to any hypothetical that may have been posed

to her, and it appears on the totality of the

circumstances and the testimony on the 402 hearing,

that her participation, thus far, has been more by way

of a consultant than an expert on the ultimate issues

of suggestibility and forensic technique when making

an evaluation, because when posed with those

questions, she indicated she had suggestions in areas

which you should be sensitive to.

“So under [Evidence Code sections] 352, 801,

720,[11] my review of her testimony, it appears her

testimony is not relevant to these proceedings and

that she does not qualify as an expert in the areas of

suggestibility as it relates to this matter.”

Defense counsel then asked if the court was

finding Dr. Okla not qualified, and the court

responded: “There’s no grounds for her to be called

as an expert witness in this particular case under the

circumstances, under [section] 720, given her

testimony and sequence [sic].”

Doc. #10, Ex. 12 at 19–21; see Doc. #10, Ex. 2, Vol. 9 at 415 (reporter’s

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transcript of hearing). 

After providing this background, the California Court of Appeal

concluded that “even assuming expert testimony regarding the suggestibility of

child witnesses and the forensic interviewing of children is otherwise admissible

in California, we conclude that the trial court did not abuse its discretion in

excluding Dr. Okla’s testimony.” Doc. #10, Ex. 12 at 23. The court explained: 

“[t]his is because Dr. Okla did not demonstrate, at the section 402 hearing, how

her testimony would be germane to the specific facts admitted in evidence at

trial.” Id. The court noted several instances in Okla’s hearing testimony wherein

she failed to cite to particular problems with the child interviews conducted in

Petitioner’s case, and instead gave “extremely vague and indefinite” answers and

“merely spoke generally and theoretically about problems in interviewing

children.” Id. The court then concluded: 

[W]hen asked repeatedly about her findings and

conclusions with respect to the evidence in this case,

Dr. Okla testified that she had not reached any

specific conclusions and merely spoke in generalities

that did not relate to the particular facts at issue here. 

Moreover, when directly asked whether her

involvement in the case was more as a consultant or

expert witness, she did not state that she was an

expert, but instead spoke vaguely about her

suggestions regarding “places [the defense] might

need to go” through either a lay or expert witness.

In light of Dr. Okla’s failure to explain the

relevance of her general testimony on suggestibility

in children and forensic interviewing to the specific

facts of this case or what her role would be, we find

that the trial court acted well within its discretion

when it found that her testimony was not relevant to

the proceedings and that she did not qualify as an

expert in the area of suggestibility “as it relates to this

matter.” [Citations.] 

Doc. #10, Ex. 12 at 25. In addition to finding that the trial court did not abuse its

discretion in excluding the evidence on relevancy grounds, the California Court

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12 The Ninth Circuit has created its own five-factor balancing test to

decide if the exclusion of evidence violates due process or the right to present a

defense. See Chia v. Cambra, 360 F.3d 997, 1004 (9th Cir. 2004) (citing Miller

v. Stagner, 757 F.2d 988, 994 (9th Cir. 1985)); Drayden v. White, 232 F.3d 704,

711 (9th Cir. 2000) (same). But because the Miller balancing test is a creation of

circuit law, it is not “clearly established law” for purposes of habeas corpus

review under 28 U.S.C. § 2254(d)(1), see Moses v. Payne, 555 F.3d 742, 760 (9th

Cir. 2009), and the Court therefore cannot apply it here. 

24

of Appeal found the trial court acted within its discretion by excluding the

evidence under Evidence Code section 352 due to its potential to necessitate an

undue consumption of time and confuse the issues. Id. at 27. 

“State and federal rulemakers have broad latitude under the Constitution to

establish rules excluding evidence from criminal trials.” Holmes v. South

Carolina, 547 U.S. 319, 324 (2006) (quotations and citations omitted); see also

Montana v. Egelhoff, 518 U.S. 37, 42 (1996) (holding that due process does not

guarantee a defendant the right to present all relevant evidence). This latitude is

limited, however, by a defendant’s Sixth and Fourteenth Amendment rights to

due process and to present a defense. See Holmes, 547 U.S. at 324. “While the

Constitution prohibits the exclusion of defense evidence under rules that serve no

legitimate purpose or that are disproportionate to the ends that they are asserted

to promote, well-established rules of evidence permit trial judges to exclude

evidence if its probative value is outweighed by certain other factors such as

unfair prejudice, confusion of the issues, or potential to mislead the jury.”12 Id. at

325–26; see Egelhoff, 518 U.S. at 42 (holding that the exclusion of evidence does

not violate the Due Process Clause unless “it offends some principle of justice so

rooted in the traditions and conscience of our people as to be ranked as

fundamental”). The defendant, not the state, bears the burden to demonstrate that

the principle violated by the evidentiary rule “is so rooted in the traditions and

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conscience of our people as to be ranked as fundamental.” Egelhoff, 518 U.S. at

47 (internal quotations and citations omitted).

Applying these legal principles to Dr. Okla’s proffered testimony, the

Court cannot say that the California Court of Appeal’s conclusion upholding the

trial court’s exclusion of the evidence resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly established federal law, or

was based on an unreasonable determination of the facts in light of the evidence

presented to the trial court. See 28 U.S.C. § 2254(d); Williams, 529 U.S. at 412;

Holmes, 547 U.S. at 325–26; Egelhoff, 518 U.S. at 42. During voir dire, Dr.

Okla testified to general principles regarding the suggestibility of child witnesses

and forensic interviewing techniques, but could not, after repeated inquiries, link

these general principles to the videotaped interviews of the child victims or the

police reports she reviewed in Petitioner’s case. See Doc. #10, Ex. 2, Vol. 9 at

397–400, 404–05. She did not even identify herself as a qualified “expert” on the

subjects of her testimony; rather, when asked directly, she implied she was more

of a “consultant.” Id. at 404–05. 

Further, as Respondent notes, Doc. #9-1 at 25, the defense trial strategy

was to deny that Petitioner committed any of the alleged molestations and to

establish that the victims’ accusations were false. See Doc. #1-3 at 27–28; see

also Doc. #10, Ex. 2, Vol. 8 at 321–24 & 326–28 (Petitioner’s testimony denying

allegations that he ever touched Carmen, Maria, J.D. or R.D. inappropriately);

Doc. #10, Ex. 2, Vol. 8 at 263–65, 268, 270–72, 281–83, 294, 300–01; Doc. #10,

Ex. 2, Vol. 9 at 370–72 & 378–80 (testimony of various defense witnesses that: 

(1) Petitioner never had touched them inappropriately when they were young; (2)

they trusted Petitioner with their children; (3) they found Carmen and Maria to be

dishonest; and (4) they rarely saw J.D. and R.D. at Petitioner’s home, either by

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themselves or with others present). Given the defense strategy to deny all

allegations, as well as the fact that the defense was able to cross-examine the

victims’ interviewer regarding the same topics about which Dr. Okla would have

testified, see Doc. #10, Ex. 2, Vol. 7 at 128–30, the California Court of Appeal’s

conclusion that the trial court’s exclusion of Dr. Okla’s testimony did not violate

Petitioner’s due process rights was not contrary to, or an unreasonable application

of, clearly established federal law, nor was it based on an unreasonable

determination of the facts in light of the evidence presented to the trial court. See

28 U.S.C. § 2254(d); Williams, 529 U.S. at 412; Holmes, 547 U.S. at 325–26;

Egelhoff, 518 U.S. at 42. Accordingly, Petitioner’s claim on this particular

ground is DENIED. 

3. Alleged Denial of Right to Confrontation by Precluding Witness

Testimony Regarding Victim’s False Molestation Allegation

Petitioner claims the trial court violated his Sixth and Fourteenth

Amendment right to confrontation when it refused to allow trial counsel to

question defense witness Karina Sanchez about Carmen’s false claim that

Petitioner had molested Sanchez. Doc. #1 at 6. Respondent argues that the Court

need not reach the merits of Petitioner’s claim because, as the California Court of

Appeal found, it was not preserved at trial due to trial counsel’s failure to secure

a ruling from the trial court regarding the issue. Doc. #9-1 at 26–27; Doc. #10,

Ex. 12 at 32–32. The Court agrees. 

The California Court of Appeal provided the following background

regarding this claim: 

A. Trial Court Background

During a hearing before the trial court, the

prosecutor objected to admission of proposed

testimony from defense witness, Karina Sanchez, that

Carmen had told her (Sanchez) that [Petitioner] had

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13 “At our request, both parties submitted supplemental briefing regarding

whether the court did in fact make a ruling on this question. Although

[Petitioner] attempts to argue, as he did in his opening brief, that statements by

the court to the prosecutor to the effect that the prosecutor’s comments regarding

the admissibility of the statement were ‘argument’ and ‘theory’ constituted a

ruling on admissibility. In context, it is quite clear that the court was merely

responding to the prosecutor’s comments, not ruling on the admissibility of the

proposed testimony. The prosecutor acknowledges, in its supplemental brief, that

no ruling was made.”

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molested Sanchez, and that Sanchez forcibly denied

it. The prosecutor objected on the grounds that the

proposed testimony constituted late discovery, under

Penal Code sections 1054.3 and 1054.7, and was

inflammatory, under [Evidence Code] section 352. In

the alternative, the prosecutor asked that the court

instruct the jury, pursuant to CALJIC No. 2.28, that

defense counsel had belatedly disclosed Sanchez’s

statement.

Although the record is not absolutely clear, the

court’s comments indicate that it did not find

preclusion of the testimony, pursuant to Penal Code

section 1054.5, appropriate. However, the court

ordered the immediate disclosure of any written

statements related to the proposed testimony and

reserved judgment on whether to give CALJIC No.

2.28, pending a showing as to whether defense

counsel delayed providing the statement to the

prosecutor.

During Sanchez’s testimony, defense counsel

made no attempt to elicit any testimony from her on

this point. Thereafter, defense counsel provided the

court with information regarding the timing of the

defense’s receipt of Sanchez’s statement, after which

the court stated that it was going to give CALJIC No.

2.28. However, the court never made a definitive

ruling excluding Sanchez’s proposed testimony.[13]

Doc. #10, Ex. 12 at 31–32. The California Court of Appeal then found that

because trial counsel “failed to secure a definitive ruling on the admissibility of

Karina Sanchez’s proposed testimony regarding what Carmen had said to her, the

issue was not preserved for appellate review.” Id. at 32. The court also refused

to exercise its discretion to review the issue, in part because it concluded that

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Sanchez’s proposed testimony was not “of such critical importance as to

implicate [Petitioner’s] right to present a defense.” Id. (citing Chambers v.

Mississippi, 410 U.S. 284, 294 (1983) (exclusion of evidence vital to a

petitioner’s defense constitutes denial of a fair trial)). 

A federal court will not review questions of federal law decided by a state

court if the decision also rests on a state law ground that is independent of the

federal question and adequate to support the judgment. Coleman v. Thompson,

501 U.S. 722, 729–30 (1991). In cases in which a state prisoner has defaulted his

federal claims in state court pursuant to an independent and adequate state

procedural rule, federal habeas review of the claims is barred unless the prisoner

can demonstrate cause for the default and actual prejudice as a result of the

alleged violation of federal law, or demonstrate that failure to consider the claims

will result in a fundamental miscarriage of justice. Id. at 750. A petitioner must

establish factual innocence in order to show that a fundamental miscarriage of

justice would result from application of procedural default. Gandarela v.

Johnson, 275 F.3d 744, 749–50 (9th Cir. 2002).

Under California law, a defendant must secure a ruling from the trial court

regarding the admission of evidence in order to preserve his claim for appellate

review. See People v. Ramos, 15 Cal. 4th 1133, 1171 (1997). This is part of

California’s contemporaneous objection rule codified in Evidence Code section

353 and recognized by the Ninth Circuit in affirming the denial of a federal

petition on grounds of procedural default. See, e.g., Davis v. Woodford, 384

F.3d 628, 653–54 (9th Cir. 2004) (finding Confrontation Clause claim

procedurally barred where state supreme court found constitutional claim waived

because petitioner failed to raise it below). 

Here, because Petitioner failed to secure a ruling from the trial court on the

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admissibility of Karina Sanchez’s testimony, his claim is procedurally defaulted. 

See Ramos, 15 Cal. 4th at 1171; cf. Davis, 384 F.3d at 653–54. Further, because

Petitioner has not attempted to show cause and prejudice or that failure to

consider his claim will result in a fundamental miscarriage of justice, this Court is

barred from considering Petitioner’s claim. Coleman, 501 U.S. at 750. 

 4. Alleged Prosecutorial Misconduct

Petitioner claims the prosecutor engaged in misconduct during his closing

argument. Doc. #1 at 9. Specifically, Petitioner claims that the prosecutor

improperly: (1) offered his personal opinions based on facts outside the record

that were intended to engender sympathy for the victims and animosity towards

Petitioner; and (2) appealed to the jurors’ passion and prejudice by telling them

not to let Petitioner “get away” with the alleged molestations as he had before in

1993. Doc. #1-3 at 19–28. 

Respondent again argues that the Court need not reach the merits of

Petitioner’s prosecutorial misconduct claim because, as the California Court of

Appeal found, it was not preserved at trial due to trial counsel’s failure to object

and/or failure to object in a timely manner. Doc. #9-1 at 29–31; Doc. #10, Ex. 12

at 35–36. The Court agrees. 

The California Court of Appeal set forth the relevant parts of the

prosecutor’s closing argument about which Petitioner complains, and noted trial

counsel failed to object at the time the comments were made. Doc. #10, Ex. 12 at

33–35. The court explained that it was only after the jury was excused following

the prosecutor’s rebuttal argument that trial counsel objected and requested a jury

admonition. Id. at 35. The court then noted the trial court’s response to the

defense objection:

“My concern is that the objection is now untimely,

and [defense] counsel’s been pretty assertive and

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14 Trial counsel explained his failure to object at the time of the

prosecutor’s comments was because he “didn’t want to interrupt the [c]ourt.” 

Doc. #10, Ex. 12 at 35. 

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aggressive on other occasions and I regret the

courtesy that was extended to the [c]ourt[14]

prevented [counsel] from entering that objection, but

it is now untimely based on the status of the case.” 

Id. 

As explained earlier, this Court is precluded from reviewing questions of

federal law decided by a state court if the decision rests on an adequate and

independent state law ground. Coleman, 501 U.S. at 729–30. The Ninth Circuit

has held that a federal court cannot review a claim of prosecutorial misconduct if

the petitioner has procedurally defaulted the claim by failing to make a

contemporaneous objection in the trial court. See Jackson v. Giurbino, 364 F.3d

1002, 1006–07 (9th Cir. 2004). Because this is precisely what happened here,

and because Petitioner has not attempted to show cause and prejudice or that

failure to consider his prosecutorial misconduct claim will result in a fundamental 

miscarriage of justice, this Court is barred from considering Petitioner’s claim. 

Coleman, 501 U.S. at 750. 

5. Alleged Ineffective Assistance of Counsel

The Sixth Amendment guarantees the right to effective assistance of

counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail on a

claim of ineffective assistance of counsel, Petitioner must show that counsel’s

performance was deficient and that the deficient performance prejudiced the

defense. Id. at 688. 

To prove deficient performance, Petitioner must demonstrate that

counsel’s representation fell below an objective standard of reasonableness under

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prevailing professional norms. Strickland, 466 U.S. at 688. To prove counsel’s

performance was prejudicial, Petitioner must demonstrate a “reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694. 

Petitioner claims trial counsel was ineffective for a variety of reasons. 

Doc. #1 at 9. Each alleged instance is analyzed in turn below. 

A. Alleged Ineffectiveness Related to Dr. Okla

Petitioner claims trial counsel was ineffective for failing to retain Dr. Okla

in a timely manner, failing to prepare her for the Evidence Code section 402

hearing, and failing to ask her proper questions that would have elicited

responses demonstrating the relevance of her testimony to Petitioner’s case. In

rejecting Petitioner’s claim, the California Court of Appeal produced a lengthy

analysis explaining that even if counsel rendered deficient performance with

respect to Dr. Okla, Petitioner suffered no prejudice as a result. See Doc. #10,

Ex. 12 at 27–31. The court explained why any alleged error with respect to

counsel’s performance was harmless as follows: (1) counsel’s “brief synopsis [of

the substance of Dr. Okla’s proffered testimony] actually gave more specific

information regarding the relevance of Dr. Okla’s expertise to the facts of this

case than she ever offered during her testimony; (2) “the record reflects that

[trial] counsel went over [Dr. Okla’s] experience and training in sufficient detail

to apprise the court of the extent of her expertise; and (3) “[a]s to [Petitioner’s]

claim that counsel failed to ask proper questions that would demonstrate the

relevance of Dr. Okla’s testimony to this case, any failure on counsel’s part to ask

questions that would elicit such testimony was remedied by the repeated

questions of both the prosecutor and the trial court, as they attempted to glean the

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relevance of Dr. Okla’s testimony regarding suggestibility to what had in fact

occurred here.” Doc. #10, Ex. 12 at 29. 

For the reasons the Court noted earlier in rejecting Petitioner’s claim that

the trial court violated his right to present a defense by refusing to allow Dr. Okla

to testify, it cannot be said that counsel was deficient or that there is a reasonable

probability that, but for counsel’s alleged error in retaining, preparing or

questioning Dr. Okla the outcome of Petitioner’s trial would have been different. 

Strickland, 466 U.S. at 694. The Court finds that the California Court of

Appeal’s prejudice analysis under Strickland and resulting rejection of

Petitioner’s ineffective assistance of counsel claim as it relates to Dr. Okla was

neither contrary to, or involved an unreasonable application of, clearly

established Supreme Court precedent, nor was it based on an unreasonable

determination of the facts. See 28 U.S.C. § 2254(d); Strickland, 466 U.S. at 694. 

Accordingly, Petitioner’s claim on this particular ground is DENIED. 

B. Alleged Ineffectiveness for Failing to Object to Alleged

Prosecutorial Misconduct

Petitioner claims trial counsel was ineffective for failing to lodge a timely

objection and request an admonition regarding alleged instances of prosecutorial

misconduct. Without deciding whether or not trial counsel’s performance was

deficient, the California Court of Appeal instead simply found that Petitioner

suffered no prejudice. Doc. #10, Ex. 12 at 37. The court explained: 

First, as stated, the misconduct, if any, was

certainly not egregious. With respect to the

prosecutor’s comments about the effects of the abuse

on Carmen and Maria, the prosecutor was, at least in

part, drawing inferences from the evidence, asking

the jurors to use their common sense and what they

knew about children to understand the way in which

Carmen and Maria’s lives were irreparably harmed

by the circumstances described in their testimony. As

to the comment that molesters are selective about

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their victims, this inference was not unwarranted in

light of the evidence regarding Carmen, Maria, and

J.’s shyness, and it would be reasonable for

[Petitioner] to believe that, since neither Carmen nor

Maria reported him, Maria’s daughters would also be

safe targets. Moreover, it arguably is common sense

to presume that child molesters would be more likely

to prey on the weak and vulnerable. This certainly

was not such an outlandish or unfair statement as to

improperly engender antagonism toward [Petitioner.].

Also, with respect to the prosecutor’s telling

the jury not to let [Petitioner] get away with the

sexual abuse again as he had in 1993, while perhaps

slightly more provocative than the other

complained-of comments, these remarks were not

inflammatory and did not amount to a request for the

jury to convict [Petitioner] based on his past acts,

which only had to be proved by a preponderance of

the evidence. Just before urging the jury in his

closing argument not to let [Petitioner] get away with

it again, the prosecutor said, “[a]nd Carmen and

Maria didn't want to come forward. Fine. He’s not

charged with that, but J. and R. had no choice when

they walked into that house. They were little girls,

and thank goodness they came forward within eight

months. . . .” Thus, in context, the prosecutor was

observing that, this time, the molestations had not

been ignored and asking that justice finally be done,

while making clear that the only charges at issue were

those relating to J. and R.

Second, the trial court instructed the jury that

“[s]tatements made by the attorneys during trial are

not evidence” and “[y]ou must decide all questions of

fact in this case from the evidence received in this

trial and not from any other source.” (CALJIC Nos.

1.02, 1.03.) The court also instructed the jury that it

had to find [Petitioner] guilty of the charges against

him beyond a reasonable doubt. (CALJIC No. 2.90.) 

The court further instructed that, even if the jury

found by a preponderance of the evidence that

[Petitioner] had committed prior sexual offenses,

“you are, nevertheless, cautioned and reminded that

before [Petitioner] can be found guilty of any crime

charged or any included crime in this trial, the

evidence, as a whole, must persuade you beyond a

reasonable doubt that [Petitioner] is guilty of that

crime.” (CALJIC No. 2.50.01; see also CALJIC No.

2.50.1.)

Defense counsel also reminded the jury of the

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15 “In his habeas petition, [Petitioner] also argues that counsel was

ineffective for failing to object to the alleged misconduct and to request that an

admonition be given. He includes a declaration from trial counsel, in which

counsel stated that he objected late to the comment that the jury should not let

[Petitioner] get away with it again because he did not want to interrupt the court

or counsel and did not want to draw undue attention to his objection or the basis

therefor. He did not object to the comments regarding Carmen and Maria never

being whole as a result of the sexual abuse because he did not at the time

recognize those comments as misconduct. Defense counsel’s statements in his

declaration do not affect our conclusion regarding appellant's claim of ineffective

assistance of counsel.” 

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reasonable doubt requirement and told them that

neither his nor the prosecutor’s arguments constituted

evidence, specifically stating: “What [the prosecutor]

says to you is not evidence, and, you know, he did

some testifying here this morning about how kids

normally are and so forth and so on. You know,

some stuff is common knowledge, reasonable

inferences can be raised, but some of the stuff he’s

talking about is beyond the evidence. You should

ignore that, because the other instruction the judge is

going to read you is you have to decide the evidence

offered you from the witness stand, and you can’t

speculate.”

Finally, the evidence of guilt in this case was

extremely strong. J. and R. provided consistent

statements and testimony (particularly in light of their

youth) regarding what [Petitioner] had done to them. 

Furthermore, the evidence of [Petitioner’s] prior

sexual abuse of Carmen and Maria was strikingly

similar to the evidence regarding what he had done to

R. and, especially, to J. [Citation.] In addition,

[Petitioner] acknowledged offering $5,000 to Carmen

after she confronted him about his molestation of her

granddaughters.

For all of these reasons, we conclude that it is

not reasonably probable that the outcome in this case

would have been different had defense counsel timely

objected to the prosecutor’s comments and requested

that the jury be admonished. (See Strickland v.

Washington, supra, 466 U.S. at pp. 694, 697.)[15]

Doc. #10, Ex. 12 at 37–39. 

In evaluating whether a prosecutor engaged in misconduct , “[t]he relevant

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question is whether the prosecutor[’]s[] comments ‘so infected the trial with

unfairness as to make the resulting conviction a denial of due process.’” Darden

v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo,

416 U.S. 637, 643 (1974). The “appropriate standard of review for such a claim

on writ of habeas corpus is ‘the narrow one of due process, and not the broad

exercise of supervisory power.’” Darden, 477 U.S. at 181 (quoting Donnelly,

416 U.S. at 642). As the Ninth Circuit noted, “Darden measured the fairness of

the petitioner’s trial by considering, inter alia, (1) whether the prosecutor’s

comments manipulated or misstated the evidence; (2) whether the trial court gave

a curative instruction; and (3) the weight of the evidence against the accused. 

Tan v. Runnels, 413 F.3d 1101, 1115 (9th Cir. 2005) (citing Darden, 477 U.S. at

181–82). 

Here, as the California Court of Appeal noted: (1) the prosecutor’s

comments regarding Petitioner’s conduct were a fair comment on the evidence;

(2) the trial court gave several curative instructions that comments by counsel

were not to be considered as evidence – which trial counsel reminded the jury of

during his closing argument – and (3) the evidence against Petitioner was

“extremely strong.” Under these circumstances, the Court finds that the

California Court of Appeal’s prejudice analysis under Strickland and resulting

rejection of Petitioner’s ineffective assistance of counsel claim as it relates to

failure to object to any alleged prosecutorial misconduct was neither contrary to,

or involved an unreasonable application of, clearly established Supreme Court

precedent, nor was it based on an unreasonable determination of the facts. See 28

U.S.C. § 2254(d); Strickland, 466 U.S. at 688 & 694; Darden, 477 U.S. at 181;

Tan, 413 F.3d at 1115. Accordingly, Petitioner’s claim on this particular ground

is DENIED. 

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C. Alleged Ineffectiveness for Failing to Investigate Regarding Money

Petitioner’s Family Gave to Carmen

The California Court of Appeal provided the following background and

analysis regarding this particular claim: 

In his petition for writ of habeas corpus,

[Petitioner] contends defense counsel was ineffective

for failing to investigate information regarding

[Petitioner’s] family having provided Carmen with

money, at Carmen’s request. . . . 

During trial, [Petitioner] acknowledged offering Carmen $5,000 after she confronted him

about the sexual abuse, but claimed that the reason he

offered it was because “she was having financial

problems, and I thought maybe her whole scheme,

because I thought that she was scheming, it was

because she needed money, she wanted money, so I

asked-I told her I just requested $5,000 from my

401-k. We can take care of the situation. Otherwise,

this can go into a very messy, expensive situation.”

During closing argument, the prosecutor argued that [Petitioner’s] offer to give Carmen $5,000

was evidence of consciousness of guilt, and said: 

“There’s no testimony from anybody that somehow

she is struggling and needs money. . . . Money has

never been an issue for her.” During rebuttal, counsel

further asked the jury to consider what motive

Carmen and her family could have to falsely accuse

[Petitioner] of molesting them, opining that money

was not the motive as [Petitioner] had never given

them money before.

In a declaration attached to the habeas petition,

Esperanza stated that Carmen repeatedly asked her

for money over the years, that she regularly gave

Carmen money, and that [Petitioner] knew that she

was giving Carmen money. In addition, Carmen had

asked Esperanza to cosign on a home loan, but

Esperanza refused. Esperanza also stated that neither

defense counsel nor his investigator asked her about

this information, even though she and her daughter,

Sylvia, had told them about Carmen’s many requests

for money. In another declaration, [Petitioner] stated

that he was aware that Carmen frequently asked

Esperanza for money and Esperanza gave it to her,

and that Esperanza refused to cosign on a loan.

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In an additional declaration, [Petitioner’s]

daughter, Sylvia Frates, stated that defense counsel

had told her to relay investigation requests directly to

his investigator, which she did. She told the

investigator that she wanted him to look into the fact

that her parents frequently gave Carmen money, at

Carmen’s request, and that Esperanza had refused

Carmen’s request to guarantee a home loan. Frates

also prepared a notebook containing information she

thought would be useful to the investigator. On

October 3, 2005, she gave him the notebook, a page

of which stated in relevant part: “Because Carmen

was at Ralph and Esperanza’s practically every day,

Ralph and Esperanza always expected Carmen to ask

for money[,] $20.00 for gas, for lunch, for a bill, to

co-sign for a house (early 2004), to pay for a utility

bill for [Maria] Christina. . . . Carmen also asked

Esperanza to pay for Alberto’s car to get [it] out of

the impound.”

Also attached to the habeas petition are

declarations by defense counsel and his investigator. 

In his declaration, defense counsel stated that he did

not recall being told that [Petitioner’s] family had

frequently given money to Carmen in the past

because she had financial problems. He had asked

[Petitioner’s] daughter, Sylvia Frates, to relay any

information to his investigator. The defense

investigator stated, in his declaration, that Sylvia

Frates passed along requests for investigation during

the case. He had no memory of Frates asking him to

look into the subject of financial assistance provided

over the years by [Petitioner’s] family to Carmen. He

did recall being told that, at some point, Carmen

asked Esperanza to cosign a loan, but that Esperanza

refused. He did not look further into this information.

According to appellant, the fact that Esperanza

had refused to be a cosigner on Carmen's loan gave

Carmen a motive to falsely accuse appellant of

molestation, and the fact that Esperanza had

frequently given Carmen money in the past “provided

the jury with an alternative, innocent explanation for

his $5,000 offer to her after the accusations surfaced.”

Appellant asserts that, had this evidence been

presented, it would have neutralized the prosecutor's

claim that the offer of money was evidence of

appellant's consciousness of guilt.

Even assuming defense counsel and/or the

defense investigator were in fact informed of

Carmen’s requests for money, we need not decide

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16 “We also observe that [Petitioner] himself, in arguing the prejudicial

impact of the prior sexual offense evidence in his opening brief, attempts to

discount the import of this evidence regarding the $5,000. He states, ‘the

prosecution’s argument that [Petitioner’s] offer to Carmen of $5000 to “make it

better” established his consciousness of guilt lost its force in the face of

[Petitioner’s] testimony that he had arranged for the withdrawal of the money

from his retirement plan before Carmen confronted him and that he offered it to

her because he thought she was scheming to get money and he felt the offer

might save him from a more expensive financial problem later.’”

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whether counsel’s representation was deficient due to

his failure to investigate this issue because

[Petitioner] was not prejudiced by any such

deficiency. (See Strickland v. Washington, supra, 466 U.S. at pp. 694, 697.)

The evidence that [Petitioner] offered Carmen

$5,000 was just one piece of evidence in a very

strong case against [Petitioner]. As previously

discussed, J. and R.’s descriptions of the sexual abuse

in reports to family, interviews, and testimony were,

in general, quite consistent. Moreover, Carmen and

Maria’s testimony regarding [Petitioner’s] extremely

similar prior sexual abuse of them further

strengthened the case against [him]. In addition, the

prosecutor’s assertions during argument that Carmen

had never asked [Petitioner] for money were

tempered by the trial court’s instructions that

counsels’ arguments were not evidence and that the

jury was the sole judge regarding whether any

statement by [Petitioner] constituted an admission.

(CALJIC Nos. 1.02, 2.71.) Finally, [Petitioner] 

testified that the reason he had offered Carmen the

money was because she was having financial

problems and he thought she needed money and was

scheming.16

Accordingly, we find that it is not reasonably

probable that the outcome in this case would have

been different had counsel investigated Carmen’s

previous requests for money. (See Strickland v.

Washington, supra, 466 U.S. at pp. 694, 697.)

Doc. #10, Ex. 12 at 39–42. 

Again, the Court finds that the California Court of Appeal’s prejudice

analysis under Strickland and resulting rejection of Petitioner’s ineffective

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assistance of counsel claim as it relates to failure to investigate regarding money

Petitioner’s family allegedly gave to Carmen was neither contrary to, or involved

an unreasonable application of, clearly established Supreme Court precedent, nor

was it based on an unreasonable determination of the facts. See 28 U.S.C. §

2254(d); Strickland, 466 U.S. at 688 & 694. Given the weight of the evidence

against Petitioner, it is difficult, if not impossible, to see how the result of the

proceedings against Petitioner would have been any different had counsel

investigated information that Petitioner’s family had provided Carmen money at

her request. Accordingly, Petitioner’s claim on this particular ground is

DENIED. 

CONCLUSION 

After a careful review of the record and pertinent law, the Court concludes

that Petition for a Writ of Habeas Corpus must be DENIED.

Further, a Certificate of Appealability is DENIED. See Rule 11(a) of the

Rules Governing Section 2254 Cases (effective Dec. 1, 2009). Petitioner has not 

made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). Nor has Petitioner demonstrated that “reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.” 

Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner may not appeal the

denial of a Certificate of Appealability in this Court but may seek a certificate

from the Court of Appeals under Rule 22 of the Federal Rules of Appellate

Procedure. See Rule 11(a) of the Rules Governing Section 2254 Cases (effective

Dec. 1, 2009). 

//

//

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The clerk shall terminate any pending motions as moot, enter judgment in

favor of Respondent and close the file.

SO ORDERED.

DATED: July 06, 2010 

CHARLES R. BREYER

United States District Judge 

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