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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JOSHUA PHILLIPS,

Petitioner, No. CIV S-04-1257 GEB GGH P

vs.

SCOTT KERNAN, et al., 

Respondent. FINDINGS AND RECOMMENDATIONS

 /

I. Introduction

Petitioner is a state prisoner proceeding through counsel with a petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2002 conviction for

fifteen counts of lewd or lascivious acts upon minors under the age of 14 (counts 1-15) (Cal.

Penal Code § 288(a)), and one count of sexual penetration by a foreign object of a person under

the age of 18 (count 17) (Cal. Penal Code § 289(h)). The jury also found that petitioner had

engaged in substantial sexual conduct as to counts 3, 4, 7, 8, 9 and 11 (Cal. Penal Code §

1203.066(a)(8)). The jury also found that petitioner committed the offenses against two or more

victims (Cal. Penal Code § 667.61(e)(5)).

Petitioner was sentenced to 122 years to life.

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This action is proceeding on the original petition filed June 30, 2004. On May 18,

2005, petitioner’s counsel filed supplemental points and authorities. The petition raises three

claims: 1) admission of prior statement by Sabrina R. violated the Confrontation Clause; 2)

admission of videotaped statements by the other victims violated the Confrontation Clause; and

3) insufficient evidence.

After carefully considering the record, the court recommends that the petition be

denied.

II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)

The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to this

petition for habeas corpus which was filed after the AEDPA became effective. Neelley v. Nagle,

138 F.3d 917 (11th Cir.), citing Lindh v. Murphy, 117 S. Ct. 2059 (1997). The AEDPA “worked

substantial changes to the law of habeas corpus,” establishing more deferential standards of

review to be used by a federal habeas court in assessing a state court’s adjudication of a criminal

defendant’s claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir.

1997). 

In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000), the Supreme

Court defined the operative review standard set forth in § 2254(d). Justice O’Connor’s opinion

for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy

between “contrary to” clearly established law as enunciated by the Supreme Court, and an

“unreasonable application of” that law. Id. at 1519. “Contrary to” clearly established law applies

to two situations: (1) where the state court legal conclusion is opposite that of the Supreme

Court on a point of law, or (2) if the state court case is materially indistinguishable from a

Supreme Court case, i.e., on point factually, yet the legal result is opposite.

“Unreasonable application” of established law, on the other hand, applies to

mixed questions of law and fact, that is, the application of law to fact where there are no factually

on point Supreme Court cases which mandate the result for the precise factual scenario at issue. 

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Williams (Terry), 529 U.S. at 407-08, 120 S. Ct. at 1520-1521 (2000). It is this prong of the

AEDPA standard of review which directs deference to be paid to state court decisions. While the

deference is not blindly automatic, “the most important point is that an unreasonable application

of federal law is different from an incorrect application of law....[A] federal habeas court 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. Rather,

that application must also be unreasonable.” Williams (Terry), 529 U.S. at 410-11, 120 S. Ct. at

1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the

objectively unreasonable nature of the state court decision in light of controlling Supreme Court

authority. Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002).

The state courts need not have cited to federal authority, or even have indicated

awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.

Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is

contrary to, or an unreasonable application of, established Supreme Court authority. Id. An

unreasonable error is one in excess of even a reviewing court’s perception that “clear error” has

occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S. Ct. 1166, 1175 (2003). Moreover, the

established Supreme Court authority reviewed must be a pronouncement on constitutional

principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules

binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S. Ct. at 366.

However, where the state courts have not addressed the constitutional issue in

dispute in any reasoned opinion, the federal court will independently review the record in

adjudication of that issue. “Independent review of the record is not de novo review of the

constitutional issue, but rather, the only method by which we can determine whether a silent state

court decision is objectively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.

2003).

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In reviewing a state court’s summary denial of a habeas petition, this court must

“look through” the summary disposition to the last reasoned decision. Shackleford v. Hubbard,

234 F.3d 1072, 1079 n. 2 (9 Cir. 2000). In the instant case, the California Court of Appeal th

issued a decision explaining its reasons for denying two of petitioner’s federal claims. 

Petitioner’s Exhibit A. The California Supreme Court denied petitioner’s petition for review

without comment or citation. Petitioner’s Exhibit C. 

III. Factual Background

The opinion by the California Court of Appeal contains a factual summary. After

independently reviewing the record, the court finds this summary to be accurate and adopts it

below.

Except as to count 17, the victims were children placed with foster families by 

Families United, Inc., a Sacramento County agency. Defendant’s girlfriend, 

Rebecca Middleton, provided day care and babysitting services for the victims’ 

foster parents. During most of the period in which the crimes occurred, defendant

and Middleton lived together in one or another apartment.

Count 1 (A.C.)

A.C. was eight years old at the time of trial. Her foster parents had brought her to 

Middleton’s home for babysitting. Both Middleton and defendant babysat her.

A.C. testified that defendant touched her vagina more than once while she was at 

Middleton’s home; she estimated that he did so between six and 10 times 

altogether. He touched her under her panties, both inside and outside her vagina. 

He would tell her to come into his room; whenever she did, he would touch her. 

When she told him to stop, sometimes he would and sometimes he would not. 

A.C. told Middleton about it, but could not remember how Middleton had 

responded.

A.C.’s videotaped MDIC interview was played for the jury, which also 

received a transcript. A.C. admitted that she told the interviewer defendant 

touched her only once, but explained she had said that because she was shy; it

actually happened more often.

Count 2 (C.C.)

C.C., A.C.’s younger sister, was seven years old at the time of trial. She and her 

sister had lived with the same foster parents and had then been adopted by the 

same family.

C.C. testified that on three occasions while she was at Middleton’s and 

defendant’s home, sleeping in a sleeping bag, defendant touched her vagina on the

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inside under her panties. She was confused about Middleton’s identity, at first 

calling her defendant’s mother. She had watched her MDIC interview before 

testifying, and had spoken to her sister and her adoptive mother about her

molestation.

C.C.’s MDIC interview was played for the jury, and a transcript was provided. 

There, C.C., who was five years old at the time, said “Josh” (defendant) more than

once did something to her that “wasn’t okay.” She could not remember all the 

details, but she recalled that defendant came into the room where she and other 

girls were trying to sleep on the floor, then did something between her legs, 

putting his hand under her panties. Defendant’s “mom” was in bed watching 

television. C.C. was four years old when it happened. She told her mother about 

it afterward.

Counts 3-6 (C.G.)

C.G. testified that while living with foster parents Lori and Chuck L., she would 

be taken to Middleton’s home for babysitting. Middleton lived at three different 

locations during this period. Defendant touched her inappropriately at each.

At the first location, defendant touched C.G.’s vagina once in the bedroom; she 

awoke as he was rubbing it. At the second location, he touched her vagina twice, 

rubbing her as she slept on the floor next to L.C. (the victim in counts 7-11); she 

woke to see his hands under her clothes, but he ran off as Middleton came

downstairs. C.G. asked him to stop once, but he did not. At the third location, he 

touched her vagina and her chest.

C.G. repeatedly complained to Middleton about defendant’s touchings. At the 

first location, Middleton said the person who did it must have been “Tim,” who 

also lived there. Defendant also blamed Tim.

At the second location, Middleton blamed the touching on a boy Middleton 

babysat. When C.G. said she was going to tell Lori L., her foster mother, 

Middleton told her not to because defendant would go to jail; C.G. did not tell 

Lori L.

At the third location, after defendant touched C.G. she screamed for Middleton, 

who was in the same room; Middleton told her to move over next to her, and 

defendant stopped touching her. The next day C.G. and Middleton spoke to 

defendant about it, and he said he would turn himself in to the police; however, he

did not do so.

In her MDIC interview, done when she was 10 years old, C.G. gave an account 

generally consistent with her trial testimony. [Footnote]

[Footnote: Defendant asserts C.G. was inconsistent as to where the first 

touching occurred, sometimes saying it was in the living room and 

sometimes in the bedroom. We see no inconsistency at the cited passages. 

The questions and answers in that sequence did not purport to describe a 

strict chronological order or to identify which was the first touching.]

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She estimated the touchings occurred about six times at all three locations

together.

Counts 7-11 (L.C.)

Lori L. Was also L.C.’s foster mother for two years, beginning when L.C. was 

eight years old. C.G. and L.C. were in Lori L.’s home at overlapping times and 

regularly interacted. L.C. functioned intellectually below her chronological age.

Lori L. testified that she had taken L.C. to Middleton’s home for babysitting about

20 times, but quit doing so after L.C. said defendant had been touching her inside 

her panties. L.C. did not volunteer this information, but gave it after Lori L. said 

she had heard of other molestations by defendant.

L.C., who was 12 years old at the time of trial, testified that defendant had 

touched her on her chest and private part “a lot” when she was at Middleton’s

home. (L.C. remembered Middleton had lived in three different places during this

period.) The first time defendant touched her, she was sleeping. Another time 

she woke up and found her shorts had been removed. She did not see defendant 

touching her because she was asleep when it happened, but she was sure it could 

not have been Middleton who touched her. She once told Middleton defendant 

had touched her by coming up underneath her in a swimming pool; Middleton 

said it was an accident and asked her not to tell her foster mother.

In L.C.’s MDIC interview, she said defendant touched her first when she was nine

years old, sleeping in the living room with other girls, including C.G. (C.G. told 

her the next morning that defendant had touched C.G. in a private spot.) 

Defendant touched L.C. inside her panties and inside her private spot. L.C. told 

Middleton about it after every incident; Middleton always said it was an accident. 

Defendant denied touching anymore, but he was lying. Even though she was 

asleep when defendant touched her, she could feel it. The touchings happened at 

all three residences where Middleton and defendant lived.

Counts 12-13 (A.W.)

A.W., who was six years old at the time of trial, denied that anything improper 

had happened. She also denied knowing or recognizing anyone in court.

In her MDIC interview, conducted when she was four years old, A.W. said at first 

that defendant had done nothing wrong. However, she also said that she did not 

like “Josh,” that he did something to her “pee pee,” that his butt touched her 

“inside it,” that she had been touched with a “tic tac” on her butt, and that it hurt

and there was blood. She was two years old when she was at Middleton’s home. 

[Footnote 4]

[Footnote 4: After saying she did not want to talk about what happened at 

Middleton’s home, she said, “leave me alone” and crawled under some 

furniture. She then clarified that she did not want to talk about “Josh,” 

whom she called Middleton’s son.]

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Counts 14-15 (S.R.)

S.R. was seven years old at the time of trial. She testified that she did not 

recognize defendant and could not recall any incidents of abuse.

Sacramento County Sheriff’s Detective Steven Osborne testified that he 

interviewed S.R. at her home when she was four years old, in the presence of her 

adoptive mother, Debra D. S.R. remembered having been babysat at Middleton’s

home, and she identified Middleton and defendant when shown photographs of

them. However, when Osborne began questioning her about abuse, S.R. would 

not answer. Debra D. took S.R. onto her lap and took over the questioning.

Debra D. asked S.R. if anyone had ever touched her where they should not. After 

reminding S.R. that she had put her mouth on her brother’s penis, Debra D. asked 

her if she had ever done so to anyone else. S.R. answered, “Yes, Josh.” S.R. then

said “Josh” had put his finger in her butt, and that they played a game she called 

“icky kitty.”

Debra D. testified that when S.R. came into her home as a three-year-old foster 

child she would seductively dance naked around the boys in the house, rub up 

against people like a kitty cat, and masturbate in public. After Debra D. mentioned

some of this behavior during the interview, S.R. admitted putting her mouth on 

defendant’s penis and playing a game with him called “thumb-in-the-butt game.”

Detective Osborne testified that he did not arrange an MDIC interview for S.R. 

because she was too young and shy, and because parents are not allowed to be

present during those interviews. He thought S.R. would not answer any questions 

unless Debra D. was there.

Count 17 (N.G.)

N.G., 20 years old at the time of trial, was formerly a close friend of Middleton. 

During Christmas vacation when she was 16, she visited Middleton’s home. As 

she lay asleep on the couch, drowsy from flu medication, defendant began 

touching her vagina, inside and out. She could not physically resist, but when she 

said, “no” for the second time he stopped. On cross-examination, she could not 

remember if she and defendant had ever had consensual sex.

The pretext phone call

Detective Osborne asked Andrea Williams, the Sacramento area director of 

Families United, Inc., to make a pretext phone call to defendant to see if he would

admit the charges against him. At Osborne’s direction, Williams told defendant 

she was concerned about the agency’s reputation and her own job security. The 

call was taped. The tape was played for the jury and transcripts were provided.

At first defendant denied all wrongdoing. Then he admitted touching one victim’s

vagina. Later he admitted touching more of the victim’s vaginas, as many as six 

or seven. He promised not to do it anymore.

The box

Detective Osborne obtained a box from defendant’s residence. It contained about 

100 cut-out photographs of little girls.

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The police interview

After arresting defendant, Detective Osborne and two other officers transported 

him to the Sheriff’s Department. Osborne read him his rights, obtained his 

consent to talk, and interviewed him on videotape. The videotape was played in 

part for the jury, and transcripts were provided. Osborne testified that the 

videotape accurately recorded the conversation. He also testified that before the 

interview began no one threatened defendant or told him what he had to say.

In the interview, when first asked if he had abused an alleged victim (L.C.), 

defendant denied it; he blamed a roommate for whatever might have happened 

and insisted he himself “wouldn’t do anything like that.” Eventually, however, he

said “it only happened once,” then admitted touching and rubbing L.C.’s vagina 

over her panties. Soon afterward, he admitted touching her once over her clothes 

and once under her clothes. Then he admitted touching her at each of his three

residences. After that, he admitted touching C.G.’s vagina three times on the 

outside and at least twice on the inside. He knew that C.G. and L.C. had told 

Middleton, and she had threatened to break up with him.

Defendant admitted touching A.C. and C.C. on the vagina under their panties 

about five times each. (He made similar admissions as to several girls who were 

not named as victims in the information.) He admitted touching A.W. once 

inside her “pull-ups diaper” when she was two years old. He also admitted 

getting C.C. to touch his penis once. He claimed not to remember S.R., however.

Defendant admitted he put his mouth on the vaginas of all the victims (except for

C.G.) And put his finger in the “butts” of the older ones (again, except for C.G.). 

That usually happened at night when they were sleeping over, whereas the other 

things happened during the day. 

Defendant’s testimony

Testifying on his own behalf, defendant claimed total innocence. He never

touched any of the minors inappropriately. He had never even seen A.W. or S.R. 

before. As for N.G., the alleged victim in count 17, they may have once had 

consensual sex; he was sure N.G. participated willingly in whatever happened, 

and he never used force on her.

Defendant could not remember much about the pretext phone call. He told the 

caller “those things” to get her off the phone.

Defendant was arrested at his home by three large officers, who came to the door 

and handcuffed him. (Defendant is five-feet-three inches tall and weighs 115-120 

pounds.) The officers threatened him the car on the way to the station, saying he

had “better tell them what they want[ed] to hear.” He feared they would beat him. 

He was still frightened during his interrogation. He admitted, however, that 

Detective Osborne did not threaten him during the interrogation and the other

officers were not in the room.

He made up everything he supposedly confessed to Detective Osborne. However,

he actually saw his roommate Tim Kelly molesting L.C., as he told Osborne.

\\\\\

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Rebuttal

Jason Gay, one of the officers who arrested defendant and rode back to the station 

with him, denied threatening him. Detective Osborne spoke to defendant during 

the trip about the booking process.

Petitioner’s Exhibit A, pp. 3-12.

IV. Discussion

A. Claim 1: Admission of S.R.’s Prior Statement Violated Confrontation Clause

Petitioner contends that admission of S.R.’s prior statement violated the

Confrontation Clause. Respondent first argues that this claim is procedurally defaulted. 

Although the question of procedural default and other general prerequisites for

federal habeas corpus which are unrelated to the merits of the particular claims “should ordinarily

be considered first,” a reviewing court need not do so “invariably,” especially when those issues

turn on difficult questions of state law. Lambrix v. Singletary, 520 U.S. 518, 524-25, 117 S. Ct.

1517 (1977) (court bypassed question of procedural default to reach the merits of petitioner’s

claims). See also Busby v. Dretke, 359 F.3d 708, 720 (5 Cir. 2004) (same). In the instant case,

th

the California Court of Appeal found that petitioner’s counsel waived his claim challenging

admission of S.R.’s prior statement pursuant to Cal. Evid. Code § 1360. Whether this finding

included petitioner’s challenge to admission of S.R.’s prior statement on grounds that it violated

the Confrontation Clause is not entirely clear. In this case, the court finds that petitioner’s claim

can be resolved more easily by addressing its merits. Accordingly, the court will assume for the

sake of these findings and recommendations that the instant claim is not procedurally barred.

The Confrontation Clause permits use of out-of-court statements so long as the

witness is physically present at trial. “Finally, we reiterate that, when the declarant appears for

cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his

prior testimonial statements.” Crawford v. Washington, 541 U.S. 36, __(n.9), 124 S. Ct. 1354,

1369 (2004). While petitioner’s counsel may have a logical point in that it would seem that a

witness who cannot recall anything about the statement to be admitted, or even the event at issue

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itself, is not really subject to cross-examination, that point was decided adversely to petitioner in

United States v. Owens, 484 U.S. 554, 559, 108 S. Ct. 838 (1988) (witness who suffered brain

trauma causing complete memory loss regarding his previous identification was “subject to

cross-examination” on the out-of-court identification statement). Although the witness may be

“unavailable” for purposes of the hearsay rule exceptions because of complete lack of memory,

Owens determined that “subject to cross-examination” and “unavailability” were distinct

concepts. 

In the instant case, S.R. testified at trial. RT at 554-556. Although petitioner’s

counsel chose not to cross-examine her (because she understandably had no recollection of the

interview or event at all), he had the “opportunity” to do so. RT at 556. Because S.R. testified at

trial and petitioner had an opportunity to cross-examine her, no Confrontation Clause violation

occurred by the admission of her prior statements.

After independently reviewing the record, the court finds that the denial of this

claim by the California Supreme Court was not an unreasonable application of clearly established

Supreme Court authority. Accordingly, this claim should be denied. 

B. Claim 2: Admission of Videotaped Interviews

Petitioner argues that admission of the videotaped interviews of the other victims

violated the Confrontation Clause. The California Court of Appeal addressed this claim on the

merits. Respondent argues that this claim is procedurally defaulted as well. For the reasons

discussed regarding petitioner’s claim one, the court finds that this claim can also be more easily

resolved on the merits. Accordingly, the court will assume for the sake of these findings and

recommendations that this claim is not procedurally barred.

For the same reason petitioner’s claim challenging admission of S.R.’s prior

statement fails, the instant claim fails as well. All of the victims appeared in court. Under these

circumstances, admission of their videotaped interviews did not violate the Confrontation Clause. 

Crawford, Owens, supra.

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The denial of this claim by the California Court of Appeal was not an

unreasonable application of clearly established Supreme Court authority. Accordingly, this claim

should be denied.

C. Claim 3: Insufficient Evidence

Petitioner alleges that there was insufficient evidence to support his convictions

relating to S.R. and A.W.

When a challenge is brought alleging insufficient evidence, federal habeas corpus

relief is available if it is found that upon the record evidence adduced at trial, viewed in the light

most favorable to the prosecution, no rational trier of fact could have found “the essential

elements of the crime” proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979). Under Jackson, the court reviews the entire record when the

sufficiency of the evidence is challenged on habeas. Adamson v. Ricketts, 758 F.2d 441, 448 n.

11 (9th Cir. 1985), vacated on other grounds, 789 F.2d 722 (9th Cir. 1986) (en banc), rev’d, 483

U.S. 1 (1987). It is the province of the jury to “resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts.” Jackson, 443 U.S. at 319, 99 S.

Ct. at 2789. “The question is not whether we are personally convinced beyond a reasonable

doubt. It is whether rational jurors could have reached the same conclusion that these jurors

reached.” Roehler v. Borg, 945 F.2d 303, 306 (9th Cir. 1991).

If the trier of fact could draw conflicting inferences from the evidence, the court in

its review will assign the inference that favors conviction. McMillan v. Gomez, 19 F.3d 465,

469 (9th Cir. 1994). The fact that petitioner can construct from the evidence alternative scenarios

at odds with the verdict does not mean that the evidence was insufficient, i.e., that no reasonable

trier of fact could have found the conviction scenario beyond a reasonable doubt.

In reviewing the sufficiency of the evidence supporting a

conviction, we search the record to determine “whether a

reasonable jury, after viewing the evidence in the light most

favorable to the government, could have found the defendants

guilty beyond a reasonable doubt of each essential element of the

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 Page 26 of the opinion by the California Court of Appeal, containing the analysis of the 1

instant claim, filed by petitioner is missing. Accordingly, the court has cited the relevant pages

of the opinion contained on Westlaw. 

12

crime charged.” United States v. Douglass, 780 F.2d 1472, 1476 

(9th Cir.1986). The relevant inquiry is not whether the evidence

excludes every hypothesis except guilt, but whether the jury could

reasonably arrive at its verdict. United States v. Fleishman, 684

F.2d 1329, 1340 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S. Ct.

464, 74 L. Ed.2d 614 (1982); United States v. Federico, 658 F.2d

1337, 1343 (9th Cir.1981), overruled on other grounds, United

States v. De Bright, 730 F.2d 1255, 1259 (9th Cir.1984) (en banc). 

United States v. Mares, 940 F.2d 455, 458 (9th Cir. 1991)

(emphasis added).

Superimposed on these already stringent insufficiency standards is the AEDPA

requirement that even if a federal court were to initially find on its own that no reasonable jury

should have arrived at its conclusion, the federal court must also determine that the state

appellate court not have affirmed the verdict under the Jackson standard in the absence of an

unreasonable determination. Juan H. v. Allen, 408 F.3d 1262 (9 Cir. 2005). th

The California Court of Appeal denied this claim for the following reasons :

1

Here, as defendant points out, A.W. and S.R. testified that no molestation 

occurred. As discussed in part I, however, S.R. gave a prior statement to 

Detective Osborne accusing defendant of molesting her, and A.W., like the other 

minor victims, gave such a prior statement in an MDIC interview. Furthermore, 

defendant admitted to Detective Osborne that he touched A.W. under her diaper 

once, though denying any touching of S.R. 

According to Detective Osborne and Debra D., S.R. said defendant put her mouth 

on defendant’s penis and played a “thumb-in-the-butt” game with him. After

indicating the vagina on a picture, A.W. told the MDIC interviewer that defendant

had done something to that part; that defendant hurt her in her butt; that he 

touched her vagina with something; and that both vaginal and rectal touchings 

involved “blood,” “hurt,” and “pain.”

Relying on his previous arguments, defendant asserts that neither S.R.’s statement

nor A.W.’s interview was properly in evidence. For the reasons stated in parts I 

and II above, we reject that contention. We also reiterate that the jury could 

appropriately consider both victims’ prior inconsistent statements for their truth, 

as it was instructed. (Evid. Code, § 1235; People v. Montiel, supra, 5 Cal.4th 877,

930; People v. Hawthorne, supra, 4 Cal.4th 43, 55, fn. 4.)

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Defendant asserts further, however, that even if properly in evidence the prior 

statements were insufficient to prove his guilt because they were inherently 

improbable. We are not persuaded. 

Evidence is inherently improbable only if it is physically impossible or its falsity 

is apparent without resorting to inferences or deductions. (People v. Mayberry 

(1975) 15 Cal.3d 143, 150.) Defendant does not claim A.W.’s or S.R.’s

accusations were physically impossible. Instead, he asserts they cannot be

believed because the minors, interviewed at age four, purported to recall events

that occurred when they were two. This assertion does not establish inherent 

improbability. 

According to defendant, “a two-year old child simply does not have the cognitive 

ability to recall and describe events at that age. It defies common sense to expect 

that a four-year old child could recreate and articulate events that occurred as a 

two-year old, without any showing of unusual abilities for that particular child.” 

This argument fails for two reasons. First, defendant cites no authority for it; he 

cites inferences and deductions. Evidence which can be attacked only in this way 

is by definition not inherently improbable. (People v. Mayberry, supra, 15 Cal.3d 

143, 150.) Defendant has failed to show the victims’ prior statements (along with 

his own admission as to A.W.) were insufficient to convict him on counts 12 

through 15. 

People v. Phillips, 2003 WL 21949869 * 10-11 (2001).

Petitioner’s insufficiency of the evidence claim is simply the flip side of a claim

that a four year old witness is not competent to testify (in an out-of-court statement regarding

events that transpired when the four year old was two). Competency of a witness under state law

is determined by state law—an area where the federal habeas courts are not permitted to review. 

However, and despite the dismissiveness of the Court of Appeal, there are limits determined by

common experience concerning when a child is so young, and recollection of events occurring at

two years old and below are so improbable, that due process comes into play. Or, in the words of

the present claim, the evidence will be insufficient as a matter of federal constitutional law for

any purpose.

The problem in the AEDPA context is that petitioner must show that the

California Court of Appeal unreasonably applied the Jackson standard. While common

experience comes close to demonstrating that it did, close is not good enough. The scenario of a

four year old remembering what happened at two years old is not so improbable, not so out of the

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question in common experience, that this court could make an “unreasonable” finding. And, as

noted by the Court of appeal, there is no evidence in the record demonstrating the child’s

incompetence.

For the reasons stated by the California Court of Appeal, this court finds that there

was sufficient evidence to support petitioner’s convictions with respect to S.R. and A.W. 

Because the denial of this claim by the California Court of Appeal was not an unreasonable

application of clearly established Supreme Court authority, this claim should be denied.

Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for

a writ of habeas corpus be denied.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. The parties are advised

that failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: 3/7/06

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

ggh:kj

phil1257.hab

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