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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JORGE ALBERTO EK-LUNA,

Petitioner,

v.

DERRAL G. ADAMS,

Respondent. /

No. C 09-0726 MHP (PR)

ORDER DENYING PETITION FOR

WRIT OF HABEAS CORPUS

INTRODUCTION

This is a federal habeas corpus action filed by a state prisoner pursuant to 28 U.S.C. 

§ 2254. For the reasons set forth below, the petition is DENIED.

BACKGROUND

In 2006, a Marin County Superior Court jury convicted Petitioner of, inter alia, rape,

kidnapping to commit rape, committing a lewd act with a child, and robbery. The jury also

found numerous sentencing enhancement allegations to be true.1

 The trial court sentenced

Petitioner to a total term of twenty-nine years to life in state prison.2

 Petitioner sought, and

was denied, relief on direct state review. It appears that Petitioner did not seek state habeas

relief. 

Evidence presented at trial showed that in 2006 Petitioner forcibly raped and

kidnapped the victim, Jane Doe (hereinafter “Jane”). The state appellate court summarized

the facts as follows:

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At trial, 16-year-old “Jane Doe” [a native of El Salvador] testified through an

interpreter. . . [that] [o]n the morning of February 13, 2006, she walked to San

Rafael High School. Upon reaching the parking lot, she saw [Petitioner] behind

her. He grabbed her from behind and took her cell phone, on which she had just

finished a conversation. He covered her mouth with one hand and with the other

he held a piece of glass — the top of a broken bottle — to her neck. He made her

walk to the side and toward the back of the school building. It was about 8:05

a.m., classes had already started, so no one was outside. Half way along the

length of the building he took her into the bushes, and threatened to kill her if she

made noise. He told her to take off her clothes, which she did. He took off her

underwear. He threw her to the ground and told her to open his pants, which she

did. He took off his pants and underwear and had sex with her. After five or ten

minutes, they got dressed.

With the jagged bottle top still at her neck, [Jane] followed [Petitioner] out of the

bushes. He said he was taking her to a hotel to have “more sex” with her. There

were people walking and cars driving by, but she couldn’t scream because “he had

the thing on my neck.” He said if she told the police, he would “get even” with

her. A police officer approached and [Petitioner] threw the bottle top and [Jane]’s

cell phone under the patrol car. The officer had [Petitioner] stand aside while he

talked to [Jane] through a translator. She did not remember whether she told the

officer she had been sexually assaulted. 

On cross-examination, [Jane] testified that the sharp-edged glass held to her neck

did not wound her. At the preliminary hearing, she had testified that she had taken

her underwear off at [Petitioner]’s request. 

Several people observed [Jane] and [Petitioner] that morning. [Four eyewitnesses

testified that they had seen Petitioner and Jane walking together; Petitioner’s arm

was around Jane’s neck and Jane was crying or looked scared. Two of the

witnesses called the police, including Oscar Garcia, a friend of Jane’s mother.]

None of the eyewitnesses saw anything in [Petitioner]’s hands.

Officer [] Mathis was dispatched to the scene. . . . As [Petitioner and Jane]

approached, [Petitioner] removed his arm from around [Jane]’s shoulder. He

appeared intoxicated. [Jane] was crying, so Mathis separated the two, sending

[Petitioner] to sit near the patrol car’s right front tire while he interviewed [Jane]

. . . . [Jane] seemed upset, troubled. She told Mathis that [Petitioner] had

approached her on her way to school and threatened to kill her at knife-point.

Concerned for officer safety, Mathis obtained consent to search [Petitioner] and

found only a wallet. 

Oscar Garcia arrived on the scene and began to translate for Mathis. According

to Garcia, [Jane] said [Petitioner] approached her from behind, held a piece of

glass to her neck and said he would kill her if she didn’t go with him. He had

taken her cell phone and said he was going to take her to a hotel to have sex with

her. At that point, Mathis noticed a piece of brown glass and a cell phone under

the patrol car’s right front tire, which [Jane] identified. She did not mention

having been sexually assaulted.

. . . [L]ater, Mathis interviewed [Jane] at the station through a police interpreter,

at which time she said she had been sexually assaulted. 

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. . . [A] registered nurse . . . performed a sexual assault examination on [Jane].

[The nurse] found no external injuries, but was unable to determine if there were

internal injuries because [Jane] was too nervous and embarrassed to permit a

complete examination. [The nurse] did obtain vaginal swabs, however, which

revealed [Petitioner]’s semen. [Petitioner]’s blood, but not [Jane]’s, was found on

the broken beer-bottle top.

(Id., Ex. F at 2–4.) 

 As grounds for federal habeas relief, Petitioner alleges that: (1) the kidnapping

conviction and one-strike kidnapping findings were not supported by substantial evidence,

denying Petitioner due process of law; (2) the admission of evidence regarding rape trauma

syndrome denied Petitioner his rights to due process and to confront his accuser; (3) the trial

court’s response to the jury question about weapon use denied Petitioner his rights to due

process and to a jury determination of all issues; (4) the instructions on One-Strike

kidnapping denied Petitioner his rights to due process and to a jury determination of all

issues; (5) California law defining the asportation element of simple and aggravated

kidnapping, and the elements required to distinguish between them, are unconstitutionally

vague and denied Petitioner his rights to due process and equal protection of the law; 

(6) use of the CALCRIM No. 1192 jury instruction violated Petitioner’s right to due process;

(7) the reasonable doubt and related jury instructions violated Petitioner’s rights to due

process and to a jury determination of all issues beyond a reasonable doubt; (8) the use of the

CALCRIM No. 376 jury instruction violated Petitioner’s right to due process; (9) there was

cumulative error; and (10) the twenty-five years-to-life sentence on the One-Strike

kidnapping conviction deprived Petitioner of due process and equal protection of the law. 

STANDARD OF REVIEW

This Court may entertain a petition for a writ of habeas corpus “in behalf of a person

in custody pursuant to the judgment of a State court 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). 

Under the Antiterrorism and Effective Death Penalty Act of 1996, a district court may not

grant a habeas petition challenging a state conviction or sentence on the basis of a claim that

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was reviewed on the merits in state court unless the state court’s adjudication of the claim:

“(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);

Williams (Terry) v. Taylor, 529 U.S. 362, 412–13 (2000). The first prong applies both to

questions of law and to mixed questions of law and fact, Williams (Terry), 529 U.S. at

407–09, while the second prong applies to decisions based on factual determinations, MillerEl v. Cockrell, 537 U.S. 322, 340 (2003).

A state court decision is “contrary to” clearly established federal law “if the state court

applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or “if the

state court confronts a set of facts that are materially indistinguishable from a decision of [the

Supreme Court] and nevertheless arrives at a result different from [Supreme Court]

precedent.” Williams (Terry), 529 U.S. at 405–06. An “unreasonable application” of federal

law occurs “if the state court identifies the correct governing legal principle from [Supreme

Court] decisions but unreasonably applies that principle to the facts of the prisoner’s case.” 

Id. at 413. The federal court on habeas review may not issue the writ “simply because that

court concludes in its independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly.” Id. at 411. Rather, the

application must be “objectively unreasonable” to support granting the writ. Id. at 409.

In deciding whether a state court’s decision is contrary to, or an unreasonable

application of, clearly established federal law, a federal court looks to the “last reasoned

decision” of the highest state court to address the merits of the petitioner’s claim. See Ylst v.

Nunnemaker, 501 U.S. 797, 803–04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091–92 (9th

Cir. 2005). Here, the “last reasoned decision” is the opinion of the California Court of

Appeal. (Ans., Ex. F.) For the reasons stated below, the state court’s decision was neither

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

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nor was the state court decision based on an unreasonable determination of the facts. 

DISCUSSION

A. Sufficiency of Evidence for Kidnapping

Petitioner claims that he was denied due process of law because the kidnapping

conviction and One-Strike aggravated kidnapping findings were unsupported by substantial

evidence. (Pet. at 9.)3

 Petitioner contends that “neither the first or second movement here

really substantially increased the risk to Jane [] above and beyond that posed by the rape.” 

(Id.) 

The state appellate court rejected Petitioner’s claims. (Ans., Ex. F at 7–8.) It found

that a reasonable jury could conclude that “moving Jane [] from an outdoor parking lot at a

time when students and faculty were still arriving at school to a secluded spot in the bushes

toward the back of the building substantially decreased the likelihood of detection and

increased the opportunity for commission of further crimes.” (Id. at 7.) 

The Due Process Clause “protects the accused against conviction except upon proof

beyond a reasonable doubt of every fact necessary to constitute the crime with which he is

charged.” In re Winship, 397 U.S. 358, 364 (1970). A reviewing federal court analyzes a

state prisoner’s allegations of a due process violation based on insufficient evidence under

Jackson v. Virginia, 443 U.S. 307 (1979). Under Jackson, a federal habeas court “determines

only whether, after reviewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id. at 319. Only if no rational trier of fact could have found proof of guilt beyond a

reasonable doubt may the federal court grant the writ. Id. at 324. 

Under California law, for aggravated kidnapping to occur, “the victim must be forced

to move a substantial distance, the movement cannot be merely incidental to the target crime,

and the movement must substantially increase the risk of harm to the victim.” People v.

Dominguez, 39 Cal. 4th 1141, 1153 (2006). In assessing whether the movement was

“incidental” or a “substantial distance,” a jury considers “the context of the environment in

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which the movement occurred” and the scope and nature of the movement. People v.

Rayford, 9 Cal. 4th 1, 12 (1994). While this includes consideration of the actual distance the

victim is moved, the asportation requirement does not have a fixed minimum distance; the

requirement is that the movement is substantial. Dominguez, 39 Cal. 4th at 1152. “The

essence of aggravated kidnapping is the increase in the risk of harm to the victim caused by

the forced movement.” Id. Thus, a jury should also consider “whether the movement

decreases the likelihood of detection, increases the danger inherent in a victim’s foreseeable

attempts to escape, or enhances the attacker’s opportunity to commit additional crimes.” Id.

Here, evidence existed on which a reasonable juror could find Petitioner guilty of

aggravated kidnapping. According to Jane’s testimony, Petitioner grabbed her from behind,

held a broken glass bottle top to her neck, and told her to walk forward to the side of a

building. (Ans., Ex. B, Vol. 2 at 131–36.) Petitioner and Jane did not stay on the path

outside the building. (Id. at 136–37.) Instead, Petitioner pushed Jane to the ground inside

some bushes and sexually assaulted her. (Id. at 139–44.) Kathryn Hokanson, an

administrative assistant at Jane’s high school, whose open window overlooked the bushes

where the crime occurred, testified that the pathway alongside the building was not heavilytraveled and that it is not seen from the main campus at the high school.4

 (Id., Ex. B, Vol. 5

at 510). 

This evidence shows, contrary to Petitioner’s assertion, that the forced asportation of

Jane to the bushes substantially increased the risk of harm to Jane. Petitioner forced Jane to

move about 150 feet to the side of a building and into the bushes, where he sexually

assaulted her. In addition, the path alongside the bushes was not well-traveled by others.

Consequently, the movement changed Jane’s environment from a relatively open area to a

place significantly more secluded, decreasing the possibility of detection, escape or rescue. 

As such, this Court concludes that a rational juror could find beyond a reasonable doubt that

moving a victim from a parking lot to bushes along the side of a pathway that was not welltraveled did “decrease[ ] the likelihood of detection, increase[ ] the danger inherent in a

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victim’s foreseeable attempts to escape, or enhance[ ] the attacker’s opportunity to commit

additional crimes.” Dominguez, 39 Cal. 4th at 1152. Accordingly, Petitioner’s claim is

DENIED. 

B. Expert Testimony on Rape Trauma Syndrome

Petitioner asserts that the trial court denied him his rights to due process and to

confront his accuser by admitting expert testimony about rape trauma syndrome (“RTS”). 

(Pet. at 10.) Specifically, Petitioner contends that the trial court violated his constitutional

rights by (1) failing to scrutinize the myths or misconceptions the RTS testimony was

supposed to rebut, “permitting it to be used in unfair predictive fashion to bolster [Jane’s]

credibility and even predict whether a rape occurred”; and (2) improperly admitting expert

testimony about Latina sexual assault victims without adequate foundational showing of the

witness’s expertise in cultural differences. (Id.) 

The trial court permitted the prosecution to present expert testimony about RTS for

the limited purpose of presenting proof that Jane’s conduct was consistent with that of

someone who has been raped, not to try to prove that the alleged sexual assault had occurred. 

(Id., Ex. F at 8.) At trial, Marcia Blackstock, who has been the executive director of a rape

crisis center for over twenty years and sexual assault counselor for twenty-eight years,

testified as an expert in the area of RTS and the common reaction of sexual assault victims. 

(Ans., Ex. F at 8; Ex. B, Vol. 4 at 379.) According to Blackstock, not only do sexual assault

victims not always immediately try to escape from an attacker because they are in shock and

“believe the attacker is all powerful,” but also it is common for assault victims not to fight

back. (Id.) Moreover, most rape victims “never report that they have been sexually

assaulted . . . [a]nd if they do make a report, it is almost always delayed,” because of the

trauma of the assault and because of the fear of how others may react to the assault. (Id. at

8–9.) Furthermore, while the demeanor of rape victims varies, the internal reactions are

pretty universal in that the victims exhibit a “super human calmness” due to the shock. (Id.

at 9.) Blackstock also explained that RTS consists of three phases, and that in order to

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function, most victims stay in the second phase of “outward adjustment,” where they push

aside their feelings regarding the rape for a long time until they are able to acknowledge what

has happened and figure out how to deal with it. (Id. at 9.) 

Based on her experience, Blackstock also testified as to the cultural stigma associated

with sexual assault in the Latino community. (Id. at 9.) Blackstock’s organization has a

Latina outreach program that mainly serves Latina immigrants. (Id. at 9.) According to

Blackstock, in Latino immigrant communities, because of culture and religion and issues of

virginity, there can be stronger stigma as to a sexual assault than in some other communities

as well as stronger issues of shame that arise because of the experience. (Ans., Ex. B, Vol. 4

at 387.) In addition, Blackstock explained that in many immigrant communities it may be

hard for victims to obtain help because of the hesitation “to take things outside the family”

and the “fear of deportation.” (Id.) 

1. Due Process

A state court’s erroneous admission of evidence is not subject to federal habeas

review unless a specific constitutional guarantee is violated or the error is of such magnitude

that the result is a denial of the fundamentally fair trial guaranteed by due process. See

Estelle v. McGuire, 502 U.S. 62, 72 (1991). The due process inquiry in federal habeas

review is whether the admission of evidence was arbitrary or so prejudicial that it rendered

the trial fundamentally unfair. See Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995). 

“Only if there are no permissible inferences the jury may draw from the evidence can its

admission violate due process.” Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991).

Here, Petitioner has not shown that the admission of the RTS testimony warrants

habeas relief. First, the prosecution presented Blackstock’s testimony only to rebut the

inferences possibly drawn from Jane’s conduct that emerged from her testimony; that is, to

rebut the inference “that a young woman who does not scream, resist, flee, sustain physical

injury or immediately characterize the incident as rape has not, in fact, been raped.” (Ans.,

Ex. F at 11.) The prosecution did not offer Blackstock’s testimony in order for her to opine

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as to whether a rape had occurred or to show that Petitioner had raped Jane. Blackstock, in

fact, had not met or examined Jane. Indeed, on cross-examination, Blackstock “explained

that RTS describes the normal reaction of a victim; it does not indicate whether a rape

occurred in any particular case.” (Id. at 9.)

Second, the prosecutor did not argue the RTS testimony to the jury in his closing

argument and the trial court gave a limiting instruction to the jury nonetheless. (Id.) The

trial court instructed that Blackstock’s testimony “is not evidence that the defendant

committed any of the crimes charged against [him]. You may consider this evidence only in

deciding whether or not [Jane]’s conduct was not inconsistent with the conduct of someone

who has been raped, and in evaluating the believability of her testimony.” (Id.) Jurors are

presumed to follow their instructions. See Richardson v. Marsh, 481 U.S. 200, 211 (1987). 

Third, even if Blackstock’s testimony concerned the ultimate issue, a claim based on

such a contention would be foreclosed by case law. The Supreme Court has left open the

question whether the Constitution is violated by the admission of expert testimony

concerning an ultimate issue to be resolved by the trier of fact. See Moses v. Payne, 543

F.3d 1090, 1105 (9th Cir. 2008). Furthermore, the Ninth Circuit has declared that it is wellestablished that expert testimony on an ultimate issue is not per se improper. Id. at 1106. 

Because Petitioner’s claim is based on the opposite proposition, it necessarily fails. 

Finally, the record supports the trial court’s decision to allow Blackstock to answer

questions as to the cultural stigma that attaches to sexual assault in the Latino community. 

Blackstock had worked as a sexual assault counselor for twenty-eight years and was the

executive director of a rape crisis center, which had a Latina outreach project, serving mainly

immigrants. (Ans., Ex. B, Vol. 4 at 379, 385.) Blackstock only answered a few short

questions about Latina sexual assault victims to the extent that her experience enabled her to

do so. (Id. at 386–87.) Based on the record, this Court cannot conclude that the admission of

Blackstock’s testimony was arbitrary or so prejudicial that it rendered the trial fundamentally

unfair. Accordingly, Petitioner’s due process claim is DENIED.

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2. Confrontation Clause

Petitioner also claims that the trial court denied him his right to confront his accuser

by admitting Blackstock’s expert testimony. He argues that “by unfairly bolstering specific

weaknesses in the complainant’s credibility, the authoritative evidence further denied

appellate a fair chance to confront and cross-examine his accuser’s credibility based on the

facts of the case.” (Pet. at 11–12.)

The Confrontation Clause of the Sixth Amendment provides that in criminal cases, the

accused has the right to “be confronted with witnesses against him.” U.S. Const. amend. VI. 

Here, Petitioner’s claim is without merit. The record clearly shows that Petitioner did in fact

cross-examine both his accuser, Jane, and Blackstock. (See Ans., Ex. B, Vol. 2 at 157–83,

186; id., Ex. B, Vol. 4 at 388–94.) During the cross-examinations, the defense attacked the

credibility of Jane’s testimony and the reliability of Blackstock’s testimony. Thus, this Court

cannot say that the trial court violated Petitioner’s right to confront his accuser. 

Accordingly, Petitioner’s claim is DENIED.

C. Trial Court’s Response to Jury’s Question

Petitioner next contends that the trial court’s response to the jury’s question about

personal use of a dangerous weapon was “inadequate, unbalanced, and coercive of a verdict,”

denying Petitioner of his rights to due process and a jury determination of all issues. (Pet. at

14.)

The relevant facts are as follows. Five counts of the information included the

additional allegation that Petitioner personally used a dangerous weapon; here, a broken

bottle. (Ans., Ex. F at 11.) As to these counts, the trial court instructed the jury that

“[s]omeone personally uses a deadly or dangerous weapon if he or she intentionally displays

the weapon in a menacing manner.” (Id. at 12.) During deliberations, the jury asked the

court whether “personal use of a deadly or dangerous weapon” requires the victim to have

“visually seen the weapon.” (Id., Ex. F at 12.) After conferring with counsel and

considering the case law, the trial court responded: 

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As to the term ‘personal use of a deadly or dangerous weapon’ generally see

[I]nstruction number 3145. The word ‘displays’ . . . means that the alleged

victim must be aware of the presence of the alleged deadly or dangerous

weapon. However, the law does not require that such awareness be

accomplished or made through the sense of sight. 

(Id.)

The state appellate court rejected Petitioner’s claim, finding that “displays” means that

the “victim is made aware of [the weapon’s] presence” through sensory perception, but not

necessarily through visual observation. (Id. at 12.) 

To obtain federal habeas relief for errors in the jury instruction, a petitioner must show

that the trial court’s error “so infected the entire trial that the resulting conviction violates due

process.” Estelle, 502 U.S. at 72 (internal quotes omitted). “[T]he instruction ‘may not be

judged in artificial isolation,’ but must be considered in the context of the instructions as a

whole and the trial record.” Id. (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). The

reviewing federal habeas court must inquire whether there is a “reasonable likelihood” that

the jury applied the challenged instruction in a way that violates the Constitution. Estelle,

502 U.S. at 72 (quoting Boyde v. California, 494 U.S. 370, 380 (1990)).

“When a jury makes explicit its difficulties, a trial judge should clear them away with

concrete accuracy.” Bollenbach v. United States, 326 U.S. 607, 612–13 (1946). However,

the trial judge has wide discretion in charging the jury. Arizona v. Johnson, 351 F.3d 988,

944 (2003). Such discretion “carries over to a trial judge’s response to a question from the

jury.” Id. (citing Allen v. United States, 186 F.2d 439, 444 (9th Cir. 1951) (“the giving of

additional instructions has always been held to be within the discretion of the trial court”)). 

Thus, the precise manner by which the court fulfills its obligation to address the jury’s

difficulties is a matter committed to its discretion. Johnson, 351 F.3d at 944. 

In the instant case, before responding to the jury’s question, the trial judge conferred

with counsel and considered case law addressing the issue whether “personal use of a deadly

or dangerous weapon” requires the victim to have seen the weapon visually. (Ans., Ex. B,

Vol. 7 at 923.) Using his discretion, the trial judge determined that simply reiterating the

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jury instruction would not be enough to address the jury’s difficulties. Rather, in order to

comply with his duty to help the jury understand the phrase in question, the trial judge

provided a clarification in the context of the jury instruction, as described above. Because

the trial court has wide discretion in determining the precise manner in which it addresses the

jury’s difficulties with the jury instructions, see Johnson, 351 F.3d at 944, this Court cannot

say that the trial judge violated Petitioner’s right to due process. 

Furthermore, the challenged instruction by itself did not “so infect[] the entire trial

that the resulting conviction violates due process.” Estelle, 502 U.S. at 72. At trial, defense

counsel argued that the trial judge’s response to the jury’s question violated Petitioner’s right

to due process because the judge “usurped the jury’s constitutional function as the sole judge

as to the facts,” and because the judge “commented on the facts . . . in such a way [that the

judge] assist[ed] the jury in reaching a verdict.” (Ans., Ex. B, Vol. 7 at 925.) First of all, the

trial judge did not comment on the facts, but rather explained the meaning of a legal element

of a charge. In addition, in the other instructions, the trial court reminded the jury of its

responsibility to decide the facts of case based on the evidence presented, to presume that

Petitioner is innocent, and to convict Petitioner only if the prosecution has proved the

elements of its case beyond a reasonable doubt. (Id. at 780–83.) Viewing the instructions as

a whole, rather than viewing the instruction on personal use of a deadly or dangerous weapon

in isolation, this Court concludes that the jury instruction did not violate Petitioner’s right to

due process. 

Petitioner’s claim is DENIED.

D. One-Strike Kidnap Instruction

Petitioner claims that the trial court violated his rights to due process and a jury

determination of all issues by charging the jury with a modified jury instruction on the

aggravated kidnapping One Strike sex offense allegation. (Pet. at 16.) 

In pertinent part, the standard version of the relevant instruction, CALCRIM No.

3175, instructs: “Substantial distance means more than a slight or trivial distance. The

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movement must be more than merely incidental to the commission of [rape]. In deciding

whether the distance was substantial and whether the movement substantially increased the

risk of harm, you must consider all the circumstances relating to the movement.” 

The trial court gave a modified version of No. 3175. The jury was instructed that in

order for the prosecution to prove the aggravated kidnapping One Strike sex offense

allegation true, it must prove, inter alia, that Petitioner moved Jane a “substantial distance,” a

movement which “substantially increased the risk of harm to her beyond that necessarily

present in the crime of rape.” (Ans., Ex. F at 13.) The trial court explained:

Substantial distance means more than a slight or trivial distance. In deciding

whether the distance was substantial, you must consider all the circumstances

relating to the movement. Thus, in addition to considering the actual distance

moved you must also consider other factors in order to determine whether the

movement substantially increased the risk of physical or psychological harm,

increased the danger of a foreseeable escape attempt, gave the attacker a greater

opportunity to commit additional crimes, or decrease the likelihood of detection.

(Id.) 

The modified version of CALCRIM No. 3175 used by the trial court differs from the

standard version of CALCRIM No. 3175 in two main respects. First, it does not include

“movement must be more than merely incidental” to the crime. Second, it elaborates on the

circumstances relating to the movement that the jurors must consider in determining whether

the distance was substantial. Petitioner contends that the modified instruction given to the

jury erroneously omitted the “more than merely incidental” language as well as the

consideration of “all the circumstances” language on the issue of substantially increased risk

of harm. (Id.) 

The state appellate court determined that “movement that is not merely incidental to

the commission of the associated offense is not an ‘essential element’ of the crime of

kidnapping, but rather a circumstance for the jury to consider in weighing the substantial

distance factor of the asportation element.” (Ans., Ex. F at 15.) Based on that determination,

the state appellate court concluded that “any instructional error in th[at] regard is far from

implicating a federal constitutional right subject to the Chapman standard of prejudice.” (Id.) 

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A challenge to a jury instruction solely as an error under state law does not state a

claim cognizable in federal habeas corpus proceedings. Estelle, 502 U.S. at 71–72. To

obtain federal habeas relief for errors in the jury instruction, Petitioner must show that the

court’s error “so infected the entire trial that the resulting conviction violates due process.” 

Id. at 72 (internal quotes omitted). “[T]he instruction ‘may not be judged in artificial

isolation,’ but must be considered in the context of the instructions as a whole and the trial

record.” Id. (quoting Cupp, 414 U.S. at 147). The reviewing federal habeas court must

inquire whether there is a “reasonable likelihood” that the jury applied the challenged

instruction in a way that violates the Constitution. Estelle, 502 U.S. at 72 (quoting Boyde,

494 U.S. at 380). 

Furthermore, a federal habeas court is bound by a state court’s interpretation of state

law. Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (citing Estelle, 502 U.S. 67–68). Thus, the

state appellate court’s determination — that “movement that is not merely incidental to the

commission of the associated offense” is not an “essential element” of the crime of

kidnapping — is not open to challenge on habeas review. See id. There is no constitutional

requirement that a jury determine whether the movement was not merely incidental to the

commission of the associated crime where the state has not made such a finding an element

of the charged offense. In other words, Petitioner does not state a claim cognizable in a

federal habeas proceeding.

Accordingly, Petitioner’s claim is DENIED. 

E. Asportation Element of Kidnapping Offenses

Next, Petitioner asserts that California law defining “asportation” in simple and

aggravated kidnapping is unconstitutionally vague on its face, and as applied, denies him due

process and equal protection of the law. (Pet. at 18.) Specifically, Petitioner claims that

because there is no fixed minimum distance that satisfies the substantial movement element

of asportation and because the asportation element of simple and aggravating kidnapping

involves consideration of the same three factors, the two kidnapping statutes are susceptible

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to arbitrary enforcement, with divergent results in terms of conviction and sentencing on

similar facts. (Id. at 17–20.)

The state appellate court rejected Petitioner’s claims, finding that the California

Supreme Court “has repeatedly reiterated the conclusion . . . that to define the ‘actual

distance’ aspect of the asportation element of kidnapping ‘in terms of a specific number of

inches or feet or miles would be open to a charge of arbitrariness,’” whereas “a standard such

as ‘substantial’ is ‘not impermissively vague, provided [its] meaning can be objectively

ascertained by reference to common experiences of mankind.’” (Ans., Ex. F at 16.) The

state appellate court acknowledged that “California law governing the asportation element of

kidnapping is not a model of clarity,” but ultimately held that it was not unconstitutional. 

(Id. at 17.)

1. Vagueness

To comply with due process, a state must “provide meaningful standards to guide the

application of its laws.” See Kolender v. Lawson, 461 U.S. 352, 358 (1983). To avoid

unconstitutional vagueness, a statute or ordinance must (1) define the offense with sufficient

definiteness that ordinary people can understand what conduct is prohibited; and (2) establish

standards to permit law enforcement to enforce the law in a non-arbitrary, non-discriminatory

manner. Vlasak v. Superior Court of California, 329 F.3d 683, 688–89 (9th Cir. 2003). A

statute will have the certainty required by the Constitution “if its language conveys

sufficiently definite warning as to the proscribed conduct when measured by common

understanding and practices.” Panther v. Hames, 991 F.2d 576, 578 (9th Cir. 1993) (internal

quotations omitted). In a facial vagueness challenge, the reviewing court must look to the

plain language of the statute, as well as construe the statute as the state courts have

interpreted it. Nunez by Nunez v. City of San Diego, 114 F.3d 935, 941–42 (9th Cir. 1997). 

In the instant case, this Court concludes that the California statutes defining the

asportation element of simple kidnapping and aggravated kidnapping are not

unconstitutionally vague. The asportation element prohibits the defendant from using force

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or fear to move the detained victim a substantial distance without the victim’s consent. See

Cal. Pen. Code § 209(b)(1); CALCRIM No. 1215; CALCRIM No. 3175. Thus, the statutes

define the asportation element of the crime in terms of the standard, “substantial distance.” 

They explain that “substantial distance means more than a slight or trivial distance” and

depends on “all the circumstances relating to the movement.” Id. CALCRIM No. 3175

points out that the movement must “substantially increase the risk of harm to [the victim]

beyond that necessarily present in the [relevant sex offense].” CALCRIM No. 1215

elaborates on the circumstances relating to the movement and instructs that in addition to

considering the actual distance the person was moved, the jury may also consider factors

such as whether the movement increased the risk of harm, gave the attacker a greater

opportunity to commit additional crimes, or decreased the likelihood of escape or detection. 

See CALCRIM No. 1215. 

Under the first prong of the Vlasak analysis, any ordinary person would understand

that whether the actual distance the victim is moved can be characterized as “substantial”

depends such circumstances. Moreover, the statutes make clear that inconsequential or

attendant movements are not punishable under the statutes. See Cal. Pen. Code § 209(b)(2).

Under the second prong of the Vlasak analysis, this Court concludes that the statutes

establish standards that permit police to enforce the law in a non-arbitrary, nondiscriminatory manner. By defining “asportation” by way of “substantial” instead of in terms

of a specific fixed minimum distance in inches, feet or miles, the statute allows the police to

take into consideration the circumstances related to the movement, decreasing the likelihood

of arbitrary results. Contrary to Petitioner’s suggestion, if the statutes defined the asportation

element in terms of a “fixed minimum distance,” that could lead to arbitrary and

discriminatory enforcement of the law. For example, if the “fixed minimum distance” were

300 feet, a defendant could be charged with kidnapping for moving a victim 300 feet within a

large, open room, whereas another defendant could not be charged with kidnapping for

moving a victim 280 feet from the victim’s house to the defendant’s basement next door. 

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The California Supreme Court’s decisions in People v. Daniels, 71 Cal. 2d 1119 (1969),

People v. Rayford, 9 Cal. 4th 1 (1994), and People v. Martinez, 20 Cal. 4th 225 (1999) are

consonant with that of this Court.

In addition, the statutes are not unconstitutionally vague as applied to Petitioner’s

action. Petitioner moved Jane through a parking lot, down a pathway alongside a building in

an area not frequented by others, and into the bushes in order to rape Jane. (Ans., Ex. B, Vol.

2 at 131–37; Ex. B, Vol. 6 at 661–63.) Under such circumstances, the distance Petitioner

moved Jane in order to rape her fairly could be considered a “substantial distance.”

Accordingly, this claim is DENIED. 

2. Equal Protection

Petitioner also contends that California law violates the Equal Protection Clause

because it allows for arbitrary enforcement and divergent results in terms of conviction and

sentencing on similar facts. (Pet. at 17, 19.) 

Unless the United States Supreme Court requires otherwise, a state law that mandates

the same treatment for any person who commits a particular crime does not violate the Equal

Protection Clause. See Alvarado v. Hill, 252 F.3d 1066, 1069–70 (9th Cir. 2001). Here, this

Court concludes that the statutes do not violate the Equal Protection Clause. Applying

Alvarado v. Hill, this Court finds that California law mandates the same treatment for any

person who commits either simple kidnapping or aggravated kidnapping. Petitioner argues

that the asportation element of both simple and aggravated kidnapping “appear to be the very

same,” yet defendants can receive divergent sentences based on the same facts surrounding

the asportation. (Pet. at 19–20.) Contrary to Petitioner’s assertion, however, defendants can

receive disparate sentences based on similar asportations because simple kidnapping and

aggravated kidnapping themselves are two different offenses. Simple kidnapping, see Cal.

Pen. Code § 207, is the stealing or detention of another person by means of force or fear. 

Aggravated kidnapping, see Cal. Pen. Code §§ 209 & 209.5, is the holding or detention of

another person in order to commit robbery, rape, or another statutorily-specified crime. As

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each is a separate crime, and each involves a separate and different punishment, the Equal

Protection Clause is not implicated because defendants are treated similarly under the same

laws. Accordingly, Petitioner’s claim is DENIED.

F. Instruction on Rape Trauma Syndrome

Petitioner claims that the use of the CALCRIM No. 1192 jury instruction on RTS

violated his right to due process because it creates unconstitutional presumptions that reduce

the prosecution’s burden of proof on issues of credibility and guilt. (Pet. at 21–22.) The

state appellate court rejected Petitioner’s claim, finding that the jury instruction did not create

a conclusive or burden-shifting presumption because the instruction did not contain any

mandatory language that the jury could construe as directing them to reach a result without a

finding of proof beyond a reasonable doubt. (Ans., Ex. F at 18–20.)

As given to the jury, CALCRIM No. 1192 states:

You have heard testimony from [Blackstock], regarding [RTS]. [Blackstock]’s

testimony about [RTS] is not evidence that the defendant committed any of the

crimes charged against [him].

You may consider this evidence only in deciding whether or not [Jane]’s

conduct was not inconsistent with the conduct of someone who has been raped,

and in evaluating the believability of her testimony.

(Id. at 18). 

In analyzing whether the instant challenged instruction creates an evidentiary

inference that violates due process, the first step is to determine whether the instruction

creates a mandatory presumption or a permissive inference. See United States v. Warren, 25

F.3d 890, 897 (9th Cir. 1994). “A mandatory presumption tells the jury that it must presume

that an element of a crime has been proven if the government proves certain predicate facts.” 

Id. It can be either conclusive or rebuttable, i.e., burden shifting. Sandstrom v. Montana,

442 U.S. 510, 514–15 (1979). If a mandatory presumption relieves the state of the burden of

persuasion on an element of the charged offense, it violates due process because it “directly

foreclose[s] independent jury consideration of whether the facts proved establish[] certain

elements of [the charged offense] . . . and relieve[s] the State of its burden of . . . proving by

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evidence every essential element of [the] crime beyond a reasonable doubt,” but it can be

reviewed for harmless error. Carella v. California, 491 U.S. 263, 265–66 (1989). 

By contrast, “a permissive inference instruction allows, but does not require, a jury to

infer a specified conclusion if the government proves certain predicate facts.” Warren, 25

F.3d at 897. An instruction that merely creates a permissive inference does not shift the

burden of proof or relieve the state of its burden of persuasion because “it still requires the

state to convince the jury that the suggested conclusion should be inferred based on the

predicate facts proved.” Francis v. Franklin, 471 U.S. 307, 314 (1985). However, a

permissive inference may violate due process unless it can be said “‘with substantial

assurance’” that the inferred fact is “‘more likely than not to flow from the proved fact on

which it is made to depend.’” County Court of Ulster County v. Allen, 442 U.S. 140, 166 &

n.28 (1979) (quoting Leary v. United States, 395 U.S. 6, 36 (1969)).

Here, the record does not support Petitioner’s claim that CALCRIM No. 1192 created

unconstitutional presumptions in violation of due process. First, as the state appellate

correctly identified, CALCRIM No. 1192 does not create a mandatory presumption. (See

Ans., Ex. F at 18.) The RTS instruction does not require the jury to infer a fact. Rather, it

instructs jurors that they “may” consider the RTS testimony in evaluating Jane’s credibility,

and it expressly warns the jury not to consider the RTS testimony as evidence of the charged

crime. See CALCRIM No. 1192. Furthermore, there is nothing in the RTS instruction that

even suggests a shift or reduction in the prosecution’s burden of proof. Thus, Petitioner’s

argument that the RTS instruction violates due process fails on this ground as well. 

Moreover, this Court cannot say that the challenged instruction by itself “so infected

the entire trial that the resulting conviction violates due process.” Estelle, 502 U.S. at 72. 

Jury instructions must be considered by a federal habeas court in their entirety, and not in

isolation. Id. (quoting Cupp, 414 U.S. at 147). Firstly, the trial court instructed the jury that

the RTS testimony is not evidence of whether a rape had occurred, and that they may only

consider the RTS testimony in evaluating the credibility of Jane. Secondly, in the other

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instructions, the trial court reminded the jury of its responsibility to decide the facts of the

case based on the evidence presented, to presume that Petitioner is innocent, and to convict

Petitioner only if the prosecution has proved the elements of its case beyond a reasonable

doubt. (Ans., Ex. B, Vol. 7 at 780–83.) Viewing the instructions as a whole, this Court

concludes that the RTS instruction did not lessen the prosecution’s burden of proof, or

otherwise violate Petitioner’s constitutional rights. Accordingly, Petitioner’s claim is

DENIED. 

G. Robbery Instruction

Next, Petitioner claims that the use of CALCRIM No. 376 lessened the prosecution’s

burden of proof on the robbery charge because it contained an “unconstitutional irrational

permissive inference of guilt” in violation of his due process rights. (Pet. at 24.) 

On the robbery charge, the trial court instructed the jury:

If you conclude that [Petitioner] knew he possessed property and you conclude

that the property had, in fact, been recently stolen, you may not convict

[Petitioner] of robbery based on those facts alone. However, if you also find

that supporting evidence tends to prove his guilt, then you may conclude that

the evidence is sufficient to prove he committed robbery.

The supporting evidence need only be slight and need not be enough by itself

to prove guilt. You may consider how, where and when [Petitioner] possessed

the property along with any other relevant circumstances relating to his guilt or

innocence of robbery or any lesser offense thereto.

Remember that you may not convict [Petitioner] of any crime unless you are

convinced that each fact essential to the conclusion that [Petitioner] is guilty of

that crime has been proved beyond a reasonable doubt.

(Ans., Ex. B, Vol. 7 at 809.) The state appellate court rejected Petitioner’s claim on grounds

that other courts have held that the use the predecessor robbery instruction, CALJIC No.

2.15, did not violate a criminal defendant’s due process rights. (Id., Ex. F at 20–21.) 

Here, the record does not support Petitioner’s claim that the challenged instruction

created a permissive inference of his guilt, thereby lessening the prosecution’s burden of

proof or otherwise denying him due process of law. First, as the state appellate court

recognized, precedent from the U.S. Supreme Court as well as the California Supreme Court 

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supports the proposition that:

[r]equiring only “slight” corroborative evidence in support of a permissive

inference, such as that created by possession of stolen property, does not

change the prosecution’s burden of proving every element of the offense, or

otherwise violate the accuser’s right to due process unless the conclusion

suggested is not one that reason or common sense could justify in light of the

proven facts before the jury.

(Ans., Ex. F at 20). Second, it can be said with substantial assurance that the inferred fact

that Petitioner himself stole the property more likely than not flowed from the proved fact

that Petitioner possessed the recently stolen property at issue in this case. The stolen item at

issue was Jane’s phone. Jane testified she did not willingly give it to Petitioner: “the man

grabbed me from behind and took my phone away.” (See id., Ex. B, Vol. 2 at 131.) 

Petitioner also testified that he possessed Jane’s phone, (see id., Vol. 6 at 661), and had

removed it from his pocket while sitting in front of the patrol car (see id. at 670–71). 

Because it is clear that Petitioner possessed Jane’s stolen phone, it can reasonably be inferred

that Petitioner stole the phone.

Moreover, this Court cannot say that the challenged instruction by itself “so infected

the entire trial that the resulting conviction violates due process.” Estelle, 502 U.S. at 72. 

Jury instructions must be considered by a federal habeas court in their entirety, and not in

isolation. Id. (quoting Cupp, 414 U.S. at 147). For one, not only did the trial court instruct

the jury that they “may not convict [Petitioner] of any crime unless [they] are convinced that

each fact essential to the conclusion that [Petitioner] is guilty of that crime has been proved

beyond a reasonable doubt” but the trial court also instructed that the jury may not convict

Petitioner of robbery based solely on the facts that “[Petitioner] knew he possessed property”

and “that the property had, in fact, been recently stolen.” (Ans., Ex. B, Vol. 7 at 809.) In

addition, in the other instructions, the trial court reminded the jury of its responsibility to

decide the facts of the case based on the evidence presented, to presume that Petitioner is

innocent, and to convict Petitioner only if the prosecution has proved the elements of its case

beyond a reasonable doubt. (Id., Ex. B, Vol. 7 at 780–83.) Viewing the instructions as a

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whole, this Court concludes that the robbery instruction did not lessen the prosecution’s

burden of proof. Accordingly, Petitioner’s claim is DENIED.

H. Reasonable Doubt Instructions

Petitioner contends that the reasonable doubt and related jury instructions violated his

rights to due process and a jury determination of all issues beyond a reasonable doubt. (Pet.

at 23.) Specifically, Petitioner argues that such instructions are unconstitutional because they

do not instruct that reasonable doubt may be based on the absence of evidence, and that the

“abiding conviction” language in CALCRIM No. 220 conveys a “clear and convincing”

rather than a “beyond a reasonable doubt” standard of proof. (Id. at 25–26.) Upon noting

that the California courts have repeatedly rejected Petitioner’s claims and that the Supreme

Court of the United States has expressly upheld the “abiding conviction” language, the state

appellate court rejected both of Petitioner’s claims. (Ans., Ex. F at 21–22.)

Using a modified version of CALCRIM No. 220, the trial court instructed the jury that

“[p]roof beyond a reasonable doubt is proof that leaves you with an abiding conviction that

the charge is true,” and that in deciding whether the prosecution has proved its case beyond a

reasonable doubt, “you must impartially compare and consider all the evidence that was

received throughout the entire trial.” (Id., Ex. B, Vol. 7 at 782–83.) The trial court also

instructed the jury, “You must decide what the facts are in this case. You must use only the

evidence that was presented in this courtroom or during a jury view. Evidence is the sworn

testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to

consider as evidence.” (Id. at 783.)

The “beyond a reasonable doubt” standard is a requirement of due process, but the

Constitution neither prohibits trial courts from defining reasonable doubt nor requires them

to do so as a matter of course. Victor v. Nebraska, 511 U.S. 1, 6 (1994). So long as the trial

court instructs the jury on the necessity that the defendant’s guilt be proven beyond a

reasonable doubt, the Constitution does not require that any particular form of words be used

in advising the jury of the government’s burden of proof. Id. Rather, taken as a whole, the

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instructions must correctly convey the concept of reasonable doubt to the jury. Id. (citing

Holland v. United States, 348 U.S. 121, 140 (1954)). The proper inquiry is "whether there is

a reasonable likelihood that the jury understood the instructions to allow conviction based on

proof insufficient to meet the [In re] Winship [397 U.S. 358 (1970)] standard [that the jurors

are able to say that the evidence before them is sufficient to show the existence of evidence

of every fact necessary to constitute the crime charged.]" Victor, 511 U.S. at 6.

Here, the challenged instruction does not suggest an impermissible definition of

reasonable doubt. CALCRIM No. 220 defines proof beyond a reasonable doubt as “proof

that leaves [one] with an abiding conviction that the charge is true.” Contrary to Petitioner’s

assertion, therefore, CALCRIM No. 220 instructs jurors that reasonable doubt is the “absence

of an abiding conviction in the truth of the charges” and to acquit in the absence of proof. 

People v. Guerrero, 155 Cal. App. 4th 1264, 1268 (2007). In Victor v. Nebraska, the

Supreme Court of the United States upheld the “abiding conviction” language and explained

that “[a]n instruction cast in terms of an abiding conviction as to guilt, without reference to

moral certainty, correctly states the government’s burden of proof.” 511 U.S. at 14–15. 

Accordingly, use of CALCRIM No. 220 did not violate Petitioner’s right to due process. 

Because the state appellate court’s decision was neither contrary to nor an

unreasonable application of federal law, Petitioner’s claim is DENIED.

I. Cumulative Error

Petitioner claims that the cumulative effect of the errors he has alleged above deprived

him of due process and a fair trial. (Pet. at 27.) The state appellate court succinctly rejected

Petitioner’s claim, finding that “[t]here was no cumulative prejudice because there was no

cumulative error.” (Ans., Ex. F at 22.) 

While it is true that the cumulative effect of several errors may prejudice a defendant

so much that his conviction must be overturned, see Alcala v. Woodford, 334 F.3d 862,

893–95 (9th Cir. 2003), where there is no single constitutional error existing, nothing can

accumulate to the level of a constitutional violation, see Mancuso v. Olivarez, 292 F.3d 939,

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957 (9th Cir. 2002). In the instant case, because there are no constitutional errors, there

cannot have been cumulative error. Accordingly, Petitioner’s claim is DENIED.

J. Sentencing

Finally, Petitioner contends that the trial court deprived him of due process and equal

protection of the law by imposing the twenty-five years-to-life sentence on the One Strike

kidnapping conviction rather than the fifteen years-to-life sentence. (Pet. at 28.) Without

elaboration, Petitioner asserts that his rights were violated because the One Strike statute can

be arbitrarily applied based solely on prosecutorial charging discretion. (Id.)

The state appellate court noted that under California law, “[a]n act . . . that is

punishable in different ways by different provisions of law shall be punished under the

provision that provides for the longest potential term of imprisonment,” as long as it is not

punished under more than one provision. (Ans., Ex. F at 24) (quoting Cal. Pen. Code § 654). 

The state appellate court then rejected Petitioner’s due process claim because it found that

none of the cases Petitioner cited “suggests that when a jury has found that a defendant’s

conduct comes within the terms of more than one properly alleged sentence-enhancement

provision, it is a violation of due process to impose the more severe of the statutory

penalties.” (Id. at 24–25.) The state appellate court also rejected Petitioner’s equal

protection claim. The appellate court found that there was no violation of equal protection of

the law because “[a]nyone who is found to come within the purview of section 667.61,

subdivision (d)(2) is subject to a sentence of [twenty-five] years to life.” (Id.)

State sentencing courts must be accorded wide latitude in their decisions as to

punishment. See Walker v. Endell, 850 F.2d 470, 476 (9th Cir. 1987). Federal habeas relief

is not justified even if a state court misapplies its own sentencing laws, unless there is a

showing of fundamental unfairness. Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). 

As to the use of Three Strikes, the Supreme Court has held that “[t]hough three strikes laws

may be relatively new, our tradition of deferring to state legislatures in making and

implementing such important policy decisions is longstanding.” Ewing v. California, 538

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U.S. 11, 24 (2003). Because of this tradition of deference, a federal court may not review a

state sentence that is within statutory limits. See id. There are exceptions under the Due

Process Clause and the Eighth Amendment, however.5

 A federal court may grant relief from

a state sentence imposed in violation of due process. For example, if a state trial judge

imposed a sentence in excess of state law, see Walker, 850 F.2d at 476, or enhanced a

sentence based on materially false or unreliable information or based on a conviction infected

by constitutional error, see United States v. Hanna, 49 F.3d 572, 577 (9th Cir. 1995), such

sentence would not meet federal due process requirements. 

Here, Petitioner has failed to show that he was denied due process or equal protection

of the law; he has not made a showing of fundamental unfairness. At trial, the jury convicted

Petitioner of rape and found the following special allegations to be true: that count one

involved kidnapping and moving the victim, and thereby substantially increased the risk of

harm to the victim within the meaning of §§ 667.61(a), (c), and (d)(2), and that it involved

kidnapping the victim within the meaning of §§ 667.61(a), (b), and (e)(1). (Ans., Ex. F at 5.) 

Under section 667.61, the sentencing court must impose a twenty-five years-to-life sentence

upon any defendant who falls within the purview of subdivision (a), and a fifteen years-tolife upon any defendant who falls within the purview of subdivision (b). See Cal. Pen. Code.

§ 667.61. As the state appellate court noted, under section 654 of the California Penal Code,

“an act . . . that is punishable in different ways by different provisions of law shall be

punished under the provision that provides for the longest potential term of imprisonment.” 

Id. at § 654(a) (emphasis added). In other words, because the jury found the special

allegation under section 667.61(a) and (d)(2) to be true, Petitioner’s twenty-five years-to-life

sentence was mandatory — the sentencing court did not have discretion to impose any other

sentence. Moreover, at the sentencing hearing, defense counsel, the prosecution and the

court all agreed that the twenty-five years-to-life sentence was mandatory. (Ans., Ex. B, Vol.

7 at 952, 956, 962.) Because Petitioner’s sentence is within statutory limits, his claim must

be DENIED. 

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CONCLUSION

The state court’s adjudication of the claim did not result in a decision that was

contrary to, or involved an unreasonable application of, clearly established federal law, nor

did it result in a decision that was based on an unreasonable determination of the facts in

light of the evidence presented in the state court proceeding. Accordingly, the petition is

DENIED. 

A certificate of appealability will not issue. Petitioner has not shown “that jurists of

reason would find it debatable whether the petition states a valid claim of the denial of a

constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner may seek a

certificate of appealability from the Court of Appeals. 

The Clerk shall enter judgment in favor of Respondent and close the file. 

IT IS SO ORDERED.

DATED: May 12, 2010 MARILYN HALL PATEL

United States District Judge

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1. The jury convicted Petitioner of rape (Cal. Penal Code § 261(a)(2)), kidnap to commit rape

(§ 209(b)(1), lewd act upon a child (§ 288 (c)(1)), second degree robbery (§ 211), witness

intimidation (§ 136.1(c)(1)), assault with a deadly weapon (§ 245(a)(1)), false representation to

a peace officer (§ 148.9(a)), and injuring a wireless communication device (§ 591.5). (Ans., Ex.

F at 1, 5.) The jury also found all of the following allegations to be true: count one, that it

involved kidnapping and moving the victim and thereby substantially increased the risk of harm

to the victim within the meaning of §§ 667.61(a), (c), and (d)(2), that it involved kidnapping the

victim within the meaning of §§ 667.61(a), (b), and (e)(1), and that it involved the personal use

of a deadly weapon within the meaning of § 12022.3(a); count two, that it involved the personal

use of a deadly weapon within the meaning of § 12022.3(b)(1); count three, that it involved the

personal use of a deadly weapon within the meaning of § 12022.3(a), count four, that it involved

the personal use of a deadly weapon within the meaning of § 12022.3(b)(1); count five, that it

involved the personal use of a deadly weapon within the meaning of § 12022.3(b)(1). Id.

2. The trial court sentenced Petitioner to twenty-five years to life on count one (forcible rape

with aggravated kidnapping enhancement), plus a four-year enhancement for personal use of a

deadly weapon, for a total of twenty-nine years in state prison. The court ordered a consecutive

thirty days in county jail for count seven (misdemeanor giving false information to a police

officer), and stayed the sentences for the remaining counts under Penal Code § 654. (Ans., Ex.

F at 5–6).

3. The pages of Petitioner’s Petition are not in numerical order. Citations to pages in the Petition

are in accordance with the order in which Petitioner filed the Petition with the Court.

4. However, Hokanson also testified that students sometimes loitered in a courtyard near the

pathway in the mornings, (Ans., Ex. B, Vol. 5 at 511–12), and that she did not hear any unusual

noises outside her window on the particular day that the offense had occurred. (Id. at 499–500.)

5. Petitioner has not alleged an Eighth Amendment violation.

NOTES

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