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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JOSE ALFREDO SOTO

Petitioner, No. CIV S-04-2122 MCE EFB P

vs.

D. ADAMS,

Respondent. FINDINGS AND RECOMMENDATIONS

 /

Petitioner is a state prisoner proceeding in propria persona with an application for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2002 judgment of

conviction entered against him in San Joaquin County Superior Court on two counts of forcible

rape and one count of forcible oral copulation, with findings that petitioner’s acts involved

multiple victims; that during the commission of one of the rapes and the oral copulation

petitioner kidnapped the victim, used a deadly weapon, and bound the victim; and that during the

commission of the second rape petitioner used a deadly weapon. Petitioner seeks relief on the

grounds that: (1) the evidence was insufficient to support his conviction on one of the rape

counts; (2) the trial court’s admission into evidence of prior sex crimes committed by petitioner

violated his right to due process and equal protection; and (3) jury instruction error violated his 

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 The following summary is drawn from the July 17, 2003 opinion by the California

Court of Appeal for the Third Appellate District (hereinafter Opinion), at pp. 1-5, filed in this

court as Lodg. Doc. D, Ex. A. This court presumes that the state court’s findings of fact are

correct unless petitioner rebuts that presumption with clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1); Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). Petitioner has not

overcome the presumption with respect to the underlying events. The court will therefore rely on

the state court’s recitation of the facts. 

2

 All further statutory references are to the Evidence Code unless otherwise indicated.

2

right to due process. Upon careful consideration of the record and the applicable law, the

undersigned recommends that petitioner’s application for habeas corpus relief be denied.

I. Procedural and Factual Background1

A jury found defendant Jose Soto guilty of rape and forcible oral

copulation of victim J.D., with special findings that he kidnapped,

tied or bound the victim, and was armed with a knife during the

commission of these crimes. The jury also found Soto guilty of the

rape of victim Q.D., with a special finding that he was armed with

a knife. Finally, the jury found that defendant committed a sex

crime against separate victims within the meaning of Penal Code

section 667.61, subdivision (b)(e)(5).

After the court found a prior felony conviction to be true,

defendant was sentenced to state prison for an aggregate term of 80

years to life under the three strikes law. He appeals, challenging

the sufficiency of the evidence to support one of the rape

convictions and claiming instructional error and improper

admission of prior sex crimes under Evidence Code section 1108.2

We will reject these arguments and affirm the judgment.

* * *

Victim Q.D.

In November 1999, 22 year-old Q.D. was working at night as a

prostitute in Stockton when defendant drove up and offered her

$200 for a “date,” to take place at defendant’s house in Lathrop.

Q.D. agreed.

They drove for about 45 minutes until they got to his house which

was in the back of a small appliance store. As soon as they walked

in the door, defendant used a key to lock the dead bolt lock from

the inside, which made Q.D. nervous.

Once inside the bedroom, Q.D. asked for her money. In response,

defendant pulled out a knife with the blade exposed and ordered

her to take her clothes off.

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Complying with defendant’s instructions, Q.D. disrobed and got on

the bed. Defendant then took his pants off and had vaginal

intercourse with Q.D. for about 30 minutes. He then ordered her to

roll over onto her stomach and penetrated her anally for 30 more

minutes.

Q.D. told defendant she had to urinate, and she was allowed to go

to the bathroom. While she was in the bathroom, defendant asked

if he could take pictures of her naked. At that point, Q.D. broke

open the bathroom window with a chair and started screaming for

help. A few seconds later, defendant opened the door with a

shocked look on his face and told her to stop screaming. She

asked “Can I go?” and he replied “You can go, you can go.” Q.D.

put on her pants and carried her jacket with her as she ran out to

the street. A neighbor found her distraught, frightened, naked from

the waist up, yelling she had been raped, and that “He’s got a

knife.” The neighbor allowed Q.D. into her home, where she

dialed 911.

Q.D. positively identified defendant from a photographic police

lineup. Sheriff’s deputies searching defendant’s house recovered a

black folding knife, Polaroid film, rope, and duct tape from a

dresser near his bed.

Victim J.D.

Around 4:00 a.m. on June 30, 2001, 22 year-old J.D. was picking

up cigarette butts and disposing of them in a garbage canister

outside her residence in Lathrop. Defendant walked by and asked

her for directions to a street called Warfield. Because defendant

seemed confused, J.D. led him down the street and was pointing

out directions, when defendant grabbed her by the neck and pushed

her up against a fence in a nearby driveway. He tried

unsuccessfully to rip off J.D.’s pants, then decided to push her

toward a less conspicuous spot next to a church. As he did this he

held a knife to her throat and told her to “stop fucking around.”

At defendant’s direction, J.D. removed her clothes while he held

the knife to her throat. Defendant took J.D.’s shirt and tied it

around her head, asking her if she could see anything. J.D. replied

she could not and assured him she was “positive,” after he asked

her again.

Defendant ordered her to spread her legs and penetrated her

vaginally. When he was finished, defendant forced her to orally

copulate him for a short time.

Telling J.D. he had a “better idea,” defendant then ordered J.D. to

roll over on her hands and knees. He put all his weight on top of

her and stayed in that position for a couple of minutes, then

suddenly got up and fled.

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Uncharged Misconduct

Pursuant to section 1108 the prosecution was permitted to

introduce two prior uncharged incidents of sexual misconduct

committed by defendant on February 24, 1997.

Late that night defendant, who was then 25 years old, together with

14-year-old A.F., and a third person, robbed a BP gas station and

convenience store in Lathrop. Wearing masks, the robbers ordered

the store clerk, B.D., to the floor where they bound her arms, legs,

eyes, and mouth with duct tape. After going through B.D.’s purse,

defendant took out a knife, cut her sweater and bra open, sucked

one of her breasts, and fondled the other.

Later that night A.F. and defendant met at a community center in a

park to divide the stolen property. While at the park, defendant

started kissing A.F. and grabbing her breasts. He pushed her down

on the grass and tried to remove her clothes. Having managed to

half undress A.F., defendant inserted his penis in her vagina,

despite her pleas to get off her. A.F. escaped and began running.

Defendant caught up with her and demanded oral sex. A.F.

complied because she wanted to go home. At one point, defendant

pulled out a buck knife and some rope, telling A.F. that if she got

out of hand he would have to tie her up. A.F. played with the

knife, but defendant quickly grabbed it away from her.

The jury was advised that in 1997, defendant pled guilty to “one

count of lewd act with a child, fourteen or fifteen years of age, . . .”

as well as robbery.

Defense

Defendant did not testify. His mother and father took the stand

and gave testimony supporting the inference that their son did not

leave their house the night of the attack on J.D.

Petitioner’s judgment of conviction was affirmed by the California Court of Appeal in a

reasoned decision dated July 17, 2003. Resp.’s Lodg. Doc. D, Ex. A. On August 27, 2003,

petitioner filed a petition for review in the California Supreme Court, which was summarily

denied by order dated October 1, 2003. Resp.’s Lodg. Docs. D, E.

II. Analysis

A. Standards for a Writ of Habeas Corpus

Federal habeas corpus relief is not available for any claim decided on the merits in state

court proceedings unless the state court’s adjudication of the claim:

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 (1) resulted in a decision that was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or 

(2) resulted in a decision that was based on an unreasonable 

determination of the facts in light of the evidence presented in the

State court proceeding.

28 U.S.C. § 2254(d). 

Under section 2254(d)(1), a state court decision is “contrary to” clearly established

United States Supreme Court precedents “if it ‘applies a rule that contradicts the governing law

set forth in [Supreme Court] cases’, or if it ‘confronts a set of facts that are materially

indistinguishable from a decision’” of the Supreme Court and nevertheless arrives at a different

result. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406

(2000)). 

Under the “unreasonable application” clause of section 2254(d)(1), a federal habeas

court may grant the writ if the state court identifies the correct governing legal principle from the

Supreme Court’s decisions, but unreasonably applies that principle to the facts of the prisoner’s

case. Williams, 529 U.S. at 413. 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.” Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is “not

enough that a federal habeas court, in its independent review of the legal question, is left with a

‘firm conviction’ that the state court was ‘erroneous.’”) 

The court looks to the last reasoned state court decision as the basis for the state court

judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court reaches a

decision on the merits but provides no reasoning to support its conclusion, a federal

habeas court independently reviews the record to determine whether habeas corpus relief is

available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).

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 In connection with his argument on this claim, petitioner states that the prosecutor

knowingly permitted Q.D. to give untruthful testimony to the effect that she was afraid and that

petitioner raped her. Am. Pet. at 20. He also argues that the trial court improperly admitted

hearsay evidence with no “indicia of reliability,” in the form of the neighbor’s testimony about

statements made to her by Q.D. Id. By these allegations, petitioner may be attempting to raise a

claim of prosecutorial misconduct and/or the improper admission of hearsay evidence by the trial

court. Any such “claim” is vague and conclusory, is not properly before the court, and is

unexhausted in any event. Accordingly, the court will not address these allegations. 

6

B. Petitioner’s Claims

1. Sufficiency of the Evidence

Petitioner’s first claim is that the evidence introduced at his trial is insufficient to support

his conviction for the rape of Q.D. Attach. to July 25, 2005 Am. Pet. entitled “Amended Petition

under 28 USC § 2254 for Writ of Habeas Corpus by a Person in State Custody and Pursuant to

the United States District Court Order of June 2nd, 2005 ” (hereinafter Am. Pet.), at 3-8. 

Petitioner’s main argument is that there was insufficient evidence to support the requirement

under state law that the crime was committed by means of fear. Id. at 17, 20-21. He explains,

“The claim of fear was unreasonable, and it was not established beyond a reasonable doubt that

petitioner took advantage of [Q’s] unreasonable fear that she never expressed.” Id. at 8. 

Petitioner also states that Q.D. “never said don’t hurt me or anything that would alert petitioner

to her fear . . . petitioner was certainly unaware of her fear.” Id. at 18. Petitioner argues that

Q.D.’s statements to the neighbor to the effect that she was afraid of petitioner were fabricated

and untrustworthy. Id. at 21. He contends that Q.D., who was a prostitute, “willingly went with

petitioner and had sex with him for an agreed upon amount of $200.00.” Id. at 17.3

This claim was rejected by the California Court of Appeal in a written decision on

petitioner’s direct appeal, and by the California Supreme Court without comment on petition for

review. The California Court of Appeal explained its reasoning as follows:

a. Substantial Evidence of the Rape of Q.D.

Defendant claims his conviction for the rape of Q.D. should be

reversed for lack of sufficient evidence of force or fear. His

argument may be summarized as follows: Q.D. willingly

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accompanied him to his house for the express purpose of having

sex; he never threatened her with the knife and put it away after

displaying it; Q.D. never verbalized her fear of defendant, and

apparently just “freaked” after he asked if he could take nude

pictures of her while she was in the bathroom; and there was no

indication defendant would not have paid her for her services.

Penal Code section 261, subdivision (a)(2), provides: “Rape is an

act of sexual intercourse accomplished with a person not the

spouse of the perpetrator, under any of the following

circumstances: [¶] . . . [¶] 2. Where it is accomplished against a

person’s will by means of force . . . or fear of immediate and

unlawful bodily injury on the person or another.” (Italics added.)

Upon a challenge to the sufficiency of the evidence of fear to

support a verdict of rape, we ask “whether ‘a reasonable trier of

fact could have found the prosecution sustained its burden of

proving the defendant guilty beyond a reasonable doubt.’” (People

v. Johnson (1980) 26 Cal.3d 557, 576 . . . .) In making this

determination, we “‘must view the evidence in a light most

favorable to respondent and presume in support of the judgment

the existence of every fact the trier could reasonably deduce from

the evidence.’” (Ibid.)” (People v. Iniguez (1994) 7 Cal.4th 847,

854 (Iniguez ).)

The “fear” element of rape has two components, one subjective

and the other objective. “The subjective component asks whether

a victim genuinely entertained a fear of immediate and unlawful

bodily injury sufficient to induce her to submit to sexual

intercourse against her will. In order to satisfy this component, the

extent or seriousness of the injury feared is immaterial. 

[Citations.] [¶] In addition, the prosecution must satisfy the

objective component, which asks whether the victim’s fear was

reasonable under the circumstances, or, if unreasonable, whether

the perpetrator knew of the victim’s subjective fear and took

advantage of it. [Citation.]” (Iniguez, supra, 7 Cal.4th at pp.

856-857.)

Q.D.’s testimony satisfied both components of the fear element.

Although the initial arrangement between Q.D. and defendant was

ostensibly “sex-for-money,” it became clear as soon as they

arrived at his house that defendant had used the agreement as a

ruse to effectuate a rape: defendant dead bolted the door,

essentially locking her inside; and when Q.D. asked for her money,

defendant responded by brandishing an open knife and ordering

her to take off her clothes. It was not necessary for defendant to

verbally threaten Q.D. with bodily injury to transform the

encounter into a rape. Defendant’s display of an open-blade knife

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 Defendant misrepresents the record in asserting that defendant “put the knife away”

after brandishing it. Q.D. testified merely that after defendant took the knife out, she did not

know what he did with it but believed he set it by his bed.

8

spoke as loudly and forcefully as any words he could utter.4

 A

reasonable jury could find that Q.D. submitted because she was

genuinely afraid for her safety. The record also supports the

inference that Q.D.’s fear was objectively reasonable, or if

unreasonable, that defendant exploited it.

Contrary to defendant’s suggestion, it was not necessary that Q.D.

either express her fear of defendant or communicate that the sex

was nonconsensual prior to the act. “‘Fear’” may be inferred from

the circumstances despite even superficially contrary testimony of

the victim.” (Iniguez, supra, 7 Cal.4th at p. 857.) Here, there was

strong evidence that Q.D. feared defendant, as manifested by her

behavior upon reaching the bathroom.

Moreover, the Legislature abolished the element of resistance as a

prerequisite to rape in 1980. (Iniguez, supra, 7 Cal.4th at pp.

855-856.) Now, all that is required is that the jury find, in light of

the totality of the circumstances, that the victim’s compliance with

defendant’s insistence on sexual intercourse “was induced either

by force, fear, or both, and, in any case, fell short of a consensual

act.” (People v. Barnes (1986) 42 Cal.3d 284, 305 (Barnes ).)

Defendant’s position would “effectively guarantee[ ] an attacker

freedom to intimidate his victim and exploit any resulting

reasonable fear so long as she neither struggles nor cries out,” a

result rejected by the California Supreme Court. (Iniguez, supra, 7

Cal.4th at p. 858.) Defendant’s substantial evidence claim must be

rejected.

Opinion at 5-8.

There is sufficient evidence to support a conviction if, “ after viewing 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.” Jackson v. Virginia, 443 U.S. 307, 319

(1979). “[T]he dispositive question under Jackson is ‘whether the record evidence could

reasonably support a finding of guilt beyond a reasonable doubt.’” Chein v. Shumsky, 373 F.3d

978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318). A petitioner in a federal habeas

corpus proceeding “faces a heavy burden when challenging the sufficiency of the evidence used

to obtain a state conviction on federal due process grounds.” Juan H. v. Allen, 408 F.3d 1262,

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1274, 1275 & n.13 (9th Cir. 2005). In order to grant the writ, the habeas court must find that the

decision of the state court reflected an objectively unreasonable application of Jackson and

Winship to the facts of the case. Id.

The court must review the entire record when the sufficiency of the evidence is

challenged in habeas proceedings. 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 to ultimate facts.” Jackson, 443 U.S. at 319. If the trier

of fact could draw conflicting inferences from the evidence, the court in its review will assign

the inference that favors conviction. Turner v. Calderon, 281 F.3d 851, 881-82 (9th Cir. 2002). 

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. Mares, 940 F.2d 455,

458 (9th Cir. 1991). The federal habeas court determines the sufficiency of the evidence in

reference to the substantive elements of the criminal offense as defined by state law. Jackson,

443 U.S. at 324 n.16; Chein, 373 F.3d at 983.

Viewing the evidence in the light most favorable to the verdict, and for the reasons

expressed by the state appellate court, there was sufficient evidence from which a rational trier of

fact could have found beyond a reasonable doubt that petitioner was guilty of raping Q.D. As

explained by the state appellate court, the evidence introduced at petitioner’s trial was sufficient

for a rational juror to conclude that the “act of sexual intercourse” between petitioner and Q.D.

was accomplished against Q.D.’s will by force or “fear of immediate and unlawful bodily

injury,” as required by Cal. Penal Code § 261. Q.D.’s actions, even prior to her statements to the

neighbor, were sufficient for a rational juror to conclude that she was afraid. This fear was

justified by petitioner’s actions in locking his bedroom door, producing a knife, and telling Q.D.

to take off her clothes after she asked him for payment. The conclusion of the state court that

sufficient evidence supported petitioner’s conviction of the rape of Q.D. is not contrary or an

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 Petitioner’s jury asked the following question: “Jurors all have questions concerning

one of the findings in count three – defendant committed a forcible sex crime against two

separate victims. Besides Ms. Davis who is the other victim?” Clerk’s Transcript on Appeal

(CT) at 137. The jurors were advised that the only people who were considered to be victims for

purposes of the finding regarding “multiple victims” were Q.D. and J.D. Id. at 138. 

10

unreasonable application of United States Supreme Court authority. Accordingly, petitioner is

not entitled to relief on this claim.

2. Admission of Evidence

Petitioner’s next claim is that the trial court violated his Fourteenth Amendment rights to

due process and equal protection when it admitted into evidence his acts against B.D. (the store

clerk) and A.F. (his accomplice in the store burglary) to show his propensity to commit sex

offenses. Am. Pet. at 8-12, 21-31. 

Petitioner first argues that A.F.’s testimony was inconsistent and not credible. Id. He

argues that the incident involving A.F. was not similar to the offenses for which he was

convicted in this case and was “remote in time,” and that the admission of evidence about the

incident was “more prejudicial rather than probative.” Id. at 10, 24. He specifically complains

that he was convicted of lewd acts with a minor in the case of A.F., whereas the instant

conviction involved charges of rape. Id. at 22-23. Petitioner contends that the prosecutor

discussed the evidence regarding petitioner’s acts with A.F. “intensely in his closing arguments

in order to get the jury to focus on it.” Id. at 12. He also notes that the jury asked for

clarification regarding “who were the victims for the multiple victims enhancement.” Id. He

argues that “where the jurors were confused and uncertain as to who the victims are, then it is

inherently reasonably possible that they are also confused as to what facts and elements belong

to what alleged crime.” Id. at 30.5

 Citing Apprendi v. New Jersey, 530 U.S. 466 (2000),

petitioner argues that the admission of this evidence violated his right to a jury trial because the

prosecutor essentially “re-characterized” his offense against A.F. as a rape, when he did not

plead guilty to a rape. Id. at 23-24.

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Petitioner also argues that the trial court erroneously admitted evidence of his actions

against B.D., the store clerk, even though “this incident was nothing like the instant offense” and

was “remote.” Id. at 10, 26, 29. It appears that petitioner’s due process claim with regard to

B.D. is unexhausted. Lodg. Doc. A. Nonetheless, assuming it is unexhausted the court

recommends that it be denied on the merits for the reasons expressed below. See 28 U.S.C. 

§ 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the

State”).

Petitioner claims that the admission of the above-described propensity evidence was

harmless because the case against him was “not very strong.” Am. Pet. at 28. He states:

petitioner was charged with rape of a prostitute that occurred three

years prior to trial where the evidence of guilt was particularly

weak and remote, and the sexual assault where he was identified

by a woman who only observed her assailant for a brief time in the

dark while under the influence of drugs. Petitioner had an iron

clad alibi and still counsel was unable to deflect the prejudicial

effect of the prior act propensity evidence unfairly had in this case.

Id.

a. State Court Decision

The California Court of Appeal denied these claims, reasoning as follows: 

Admission of Prior Sex Crimes Under Section 1108

In limine and prior to trial, defendant sought to exclude the

testimony of A.F. that defendant raped and forced her to orally

copulate him following the gas station robbery in which they both

participated. Counsel argued that the incident was more

prejudicial than probative because: (1) A.F. was a minor; (2)

defendant was never convicted of rape, but rather a lewd act on a

minor; (3) admission of the incident would take up an inordinate

amount of time since defendant claimed the encounter was

consensual; and (4) the crimes were dissimilar, since defendant

and the victim knew each other, unlike the charged offenses.

While conceding that the sexual assault on A.F. created some

potential prejudice in that it involved a minor who was 10 years

defendant’s junior and an acquaintance, the trial court decided to

admit the evidence under section 1108. The judge noted that the

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sequence of sexual acts was the same as in the Q.D. charges, and

A.F .’s testimony tended to corroborate the credibility of both 

victims in the present case. Defendant claims this ruling was

prejudicial error.

In a prosecution for a sexual offense, section 1108 permits

evidence of the commission of another sexual offense provided

that it is not inadmissible under section 352 (prejudicial effect of

the evidence outweighs its probative value). “By reason of section

1108, trial courts may no longer deem ‘propensity’ evidence

unduly prejudicial per se, but must engage in a careful weighing

process under section 352. Rather than admit or exclude every sex

offense a defendant commits, trial judges must consider such

factors as its nature, relevance, and possible remoteness, the degree

of certainty of its commission and the likelihood of confusing,

misleading, or distracting the jurors from their main inquiry, its

similarity to the charged offense, its likely prejudicial impact on

the jurors, the burden on the defendant in defending against the

uncharged offense, and the availability of less prejudicial

alternatives to its outright admission, such as admitting some but

not all of the defendant’s other sex offenses, or excluding

irrelevant though inflammatory details surrounding the offense.” 

(People v. Falsetta (1999) 21 Cal.4th 903, 916-917.)

We will not disturb a trial court’s exercise of discretion under

section 352 unless it is shown the trial court exercised it “‘“in an

arbitrary, capricious or patently absurd manner.”’” (People v. Frye

(1998) 18 Cal.4th 894, 948; accord, People v. Sanders (1995) 11

Cal.4th 475, 512.)

The court’s ruling admitting the A.F. incident was not an abuse of

discretion. The episode was clearly relevant to both victims in the

present case, in that it tended to show defendant’s propensity for

obtaining sexual gratification from young females by force and

intimidation. Significantly, both the A.F. incident and the incident

involving Q.D. started out as innocuous encounters which

escalated into forcible sex. In all three cases, defendant brandished

a knife as a means of intimidating his victim. In the case of A.F.

as with J.D., defendant first raped the victim and then immediately

demanded the victim orally copulate him.

While defendant correctly points out there were some

dissimilarities between the A.F. incident and the charged offenses,

section 1108, unlike section 1101, subdivision (b), contains no

predicate requirement that there be an unusually high degree of

similarity. As the court noted in People v. Soto (1998) 64

Cal.App.4th 966, the Legislature deliberately chose not to add a

similarity requirement to section 1108 because doing so would

tend to reintroduce the strictures of prior law which the statute was

designed to overcome “and could often prevent the admission and

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consideration of evidence of other sexual offenses in

circumstances where it is rationally probative. Many sex offenders

are not ‘specialists’, and commit a variety of offenses which differ

in specific character.” (Id. at p. 984, quoting Historical Note, 29B

pt. 3, West’s Ann. Evid.Code, (1998 pocket supp.) foll. § 1108, pp.

31-32.)

Finally, defendant contends that the ruling was an abuse of

discretion because: (1) he disputed the claim of forced sex with

A.F. and “consented to sex is not probative” of violent sexual

offenses; and (2) the district attorney in A.F.’s case allowed him to

plead guilty to a lesser charge of unlawful sex with a minor.

Neither point has merit.

Defendant’s claim of consent with respect to A.F. does not militate

in favor of exclusion. Quite to the contrary: defendant also

claimed consent with respect to Q.D.’s accusation of rape. A.F .’s

testimony tended to undermine that claim and support the

truthfulness of Q.D.’s testimony. (See People v. Fitch (1997) 55

Cal.App.4th 172, 182 [“The Legislature has determined the need

for this evidence is ‘critical’ given the serious and secretive nature

of sex crimes and the often resulting credibility contest at trial”].)

Nor did the fact that defendant pled guilty to a lesser offense of

having sex with A.F. as a minor tip the scales in favor of

exclusion. To be admissible under section 1108, it is not necessary

that any conviction result from the prior sexual misconduct. A

fortiori, the fact that the accused pleads guilty to a lesser offense

than that described by the victim is of little moment.

Clearly, perpetrating a lewd act on a 14- or 15-year-old female is a

serious offense. If anything, the fact that defendant pled to a less

serious offense reduced the prejudicial effect of the evidence, since

it tended to soften the impact of A.F.’s rape allegation. In any

event, the trial court did not abuse its discretion in allowing the

jury to weigh the incident for whatever light it shed on the charges

involving J.D. and Q.D.

Opinion at 10-13.

b. Analysis of Due Process Claims

The question whether evidence of prior uncharged acts was properly admitted under

California law is not cognizable in this federal habeas corpus proceeding. Estelle v. McGuire,

502 U.S. 62, 67 (1991). The only question before this court is whether the trial court committed

an error that rendered the trial so arbitrary and fundamentally unfair that it violated federal due

process. Id. See also Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991) (“the issue for

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us, always, is whether the state proceedings satisfied due process; the presence or absence of a

state law violation is largely beside the point”).

The United States Supreme Court “has never expressly held that it violates due process to

admit other crimes evidence for the purpose of showing conduct in conformity therewith, or that

it violates due process to admit other crimes evidence for other purposes without an instruction

limiting the jury’s consideration of the evidence to such purposes.” Garceau v. Woodford, 275

F.3d 769, 774 (9th Cir. 2001), overruled on other grounds by Woodford v. Garceau, 538 U.S.

202 (2003). In fact, the Supreme Court has expressly left open this question. See Estelle v.

Mcguire, 502 U.S. at 75 n.5 (“Because we need not reach the issue, we express no opinion on

whether a state law would violate the Due Process Clause if it permitted the use of ‘prior crimes’

evidence to show propensity to commit a charged crime”). See also Mejia v. Garcia, 534 F.3d

1036, 1046 (9th Cir. 2008) (holding that state court had not acted objectively unreasonably in

determining that the propensity evidence introduced against the defendant did not violate his

right to due process); Alberni v. McDaniel, 458 F.3d 860, 863-67 (9th Cir. 2006), cert. denied,

549 U.S. 1287 (2007) (denying the petitioner’s claim that the introduction of propensity

evidence violated his due process rights under the Fourteenth Amendment because “the right

[petitioner] asserts has not been clearly established by the Supreme Court, as required by

AEDPA”); United States v. LeMay, 260 F.3d 1018 (9th Cir. 2001) (Fed. R. Evid. 414, permitting

admission of evidence of similar crimes in child molestation cases, under which the test for

balancing probative value and prejudicial effect remains applicable, does not violate the due

process clause). Accordingly, the state court’s rejection of petitioner’s due process claim is not

contrary to United States Supreme Court precedent. 

Further, any error in admitting this testimony did not have “a substantial and injurious

effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637

(1993). See also Penry v. Johnson, 532 U.S. 782, 793-96 (2001). The record reflects that the

state trial judge struck an appropriate balance between petitioner’s rights and the clear intent of

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 The Ninth Circuit has observed that “[n]othing in the text of § 1108 suggests that the

admissible propensity evidence would be sufficient, by itself, to convict a person of any crime. 

Section 1108 relates to admissibility, not sufficiency.” Schroeder v. Tilton, 493 F.3d 1083, 1088

(9th Cir. 2007) (admission of evidence of defendant’s prior sex crimes did not violate Ex Post

Facto Clause). 

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the California legislature that evidence of prior similar acts be admitted in sexual offense

prosecutions. The trial court held a hearing on petitioner’s pre-trial in limine motion to exclude

evidence of petitioner’s uncharged acts involving A.F. and B.D. and concluded that the

challenged evidence was relevant, appropriate, and allowed by California law. Reporter’s

Transcript on Appeal (RT) at 15-39. Further, the jury instructions did not compel the jury to

draw an inference of propensity – they simply allowed it. The trial court instructed the jury at

the close of the evidence that if they found petitioner had committed the prior sexual offenses

they could, but were not required to, infer that he had a disposition to commit sexual offenses. 

Id. at 1104. The jury was also instructed that if they found that petitioner had such a disposition,

they could, but were not required to, infer that he was likely to have committed the charged

offenses. Id. The jury was directed that it should not consider petitioner’s prior conduct, or

evidence thereof, as proof that petitioner committed the crimes charged in the information. Id.

In addition, the jury instructions as a whole correctly informed petitioner’s jury that the

prosecution had the burden of proving all elements of the crimes against petitioner beyond a

reasonable doubt. Id. at 1085, 1092. The jury is presumed to have followed all of these

instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000); Brown v. Ornoski, 503 F.3d 1006,

1018 (9th Cir. 2007).6

The admission of petitioner’s prior acts of sexual misconduct did not violate any right

clearly established by United States Supreme Court precedent or result in prejudice under the

circumstances of this case. Accordingly, petitioner is not entitled to relief on his due process

claim.

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c. Analysis of Equal Protection Claim

Petitioner has also failed to demonstrate that the admission of his prior acts of sexual

misconduct pursuant to California Evidence Code § 1108 violated his rights under the Equal

Protection Clause. In LeMay, the Ninth Circuit held that Federal Rule of Evidence 414 did not

violate the Equal Protection Clause because it did not discriminate against any group of

individuals on the basis of a suspect or quasi-suspect class and did not infringe on a fundamental

right. 260 F.3d at 1030 (defendants have “ no fundamental right to have a trial free from

relevant propensity evidence that is not unduly prejudicial ” ). Thus, the rule was constitutional

so long as it bore a “ reasonable relationship to a legitimate government interest.” Id. at 1031. 

The court observed that Rule 414 allowed prosecutors to introduce relevant evidence in

furtherance of the legitimate government interest of prosecuting and convicting sex offenders. 

Id. On this basis the court found the equal protection challenge to Rule 414 to be without merit. 

Id. 

As in LeMay, the class of sex offenders is not a suspect class triggering strict scrutiny

here. Further, California Evidence Code § 1108 does not infringe on a fundamental right

because petitioner has no fundamental right to a trial free from relevant propensity evidence that

is not unduly prejudicial. See LeMay, 260 F.3d at 1030. Thus, the provision need only satisfy

rational bases review. Section 1108 bears a reasonable relationship to the legitimate government

interest in the effective prosecution of rape cases. See id. at 1031. 

Petitioner has not demonstrated that the state court decision rejecting his equal protection

challenge to § 1108 was contrary to or an unreasonable application of federal law. Accordingly,

petitioner is not entitled to habeas relief on that claim.

3. Jury Instruction Error

Petitioner claims that one of the jury instructions given at his trial allowed him to be

convicted on lesser proof than beyond a reasonable doubt. The California Court of Appeal

rejected this claim, reasoning as follows:

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Giving the 1999 Revision of CALJIC No. 2.50.01

The trial court gave the post-1999 revision of CALJIC No.

2.50.01, which states in relevant part: “If you find that the

defendant committed a prior sexual offense, you may, but are not

required to, infer that the defendant had a disposition to commit

sexual offenses. If you find that the defendant had this disposition,

you may, but are not required to, infer that [he][she] was likely to

commit and did commit the crime [or crimes] of which [he][she] is

accused. [¶] However, if you find by a preponderance of the

evidence that the defendant committed [a] prior sexual offense[s],

that is not sufficient by itself to prove beyond a reasonable doubt

that [he][she] committed the charged crime[s]. If you determine an

inference properly can be drawn from this evidence, this inference

is simply one item for you to consider, along with all other

evidence, in determining whether the defendant has been proved

guilty beyond a reasonable doubt of the charged crimes. [¶] 

Unless you are otherwise instructed, y[Y]ou must not consider this

evidence for any other purpose.]”

Defendant contends the trial court erred and deprived him of due

process of law in giving this instruction since he contends it

impermissibly lessens the burden of the prosecution to prove him

guilty beyond a reasonable doubt.

This claim has recently been rejected by the California Supreme

Court. In People v. Reliford (2003) 29 Cal.4th 1007, the state high

court held that “the 1999 version of CALJIC No. 2.50.01 correctly

states the law.” (Id. at p. 1009.) In so holding, the court

essentially rejected all the arguments raised by defendant here. 

(Id. at pp. 1012-1016.)

In his reply brief, defendant acknowledges that Reliford disposes

of his argument and that this court is bound to follow the Supreme

Court’s command under Auto Equity Sales, Inc. v. Superior Court

(1962) 57 Cal.2d 450, 455.

Opinion at 13-15.

Due process “ requires the prosecution to prove every element charged in a criminal

offense beyond a reasonable doubt.” Gibson v. Ortiz, 387 F.3d 812, 820 (9th Cir.2004),

overruled on other grounds by Byrd v. Lewis, 566 F.3d 855, 866 (9th Cir. 2009) (citing In re

Winship, 397 U.S. 358, 364 (1970)). If the jury is not properly instructed concerning the

presumption of innocence until proven guilty beyond a reasonable doubt, a denial of due process

results. See Middleton v. McNeil, 541 U.S. 433, 437 (2004) (per curiam). “Any jury instruction

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that ‘reduce[s] the level of proof necessary for the Government to carry its burden . . . is plainly

inconsistent with the constitutionally rooted presumption of innocence.’” Gibson, 387 F.3d at

820 (alterations in original) (quoting Cool v. United States, 409 U.S. 100, 104 (1972) (per

curiam)).

In Gibson, the Court of Appeals for the Ninth Circuit held that the 1996 version of

CALJIC No. 2.50.01 and CALJIC No. 2.50.1, when given together at a criminal trial, violate the

defendant’s Fourteenth Amendment due process rights to be proven guilty beyond a reasonable

doubt because they allow a jury to: (1) find that a defendant had committed prior sexual offenses

by a preponderance of the evidence; (2) infer from those past offenses a predilection for

committing sexual offenses; and (3) further infer guilt of the charged offense based on those

predilections. 387 F.3d at 820. CALJIC No. 2.50.01 was amended in 1999 to clarify how jurors

should evaluate a defendant’s guilt relating to the charged offense if they found that he had

committed a prior sexual offense. That revision added the following language: “However, if you

find by a preponderance of the evidence that the defendant committed prior sexual offenses, that

is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged

crimes.” CALJIC No. 2.50.01 (7th ed. 1999). The instruction also provided that “[t]he weight

and significance of the evidence, if any, are for you to decide.” Id. In 2002, CALJIC No.

2.50.01 was revised again. The 2002 revision deleted the sentence “[t]he weight and

significance of the evidence, if any, are for you to decide,” and inserted the following statement: 

“If you determine an inference properly can be drawn from this evidence, this inference is

simply one item for you to consider, along with all other evidence, in determining whether the

defendant has been proved guilty beyond a reasonable doubt of the charged crime.” CALJIC

No. 2.50.01. In People v. Reliford, 29 Cal.4th 1007, 1016 (2003), the California Supreme Court

upheld the constitutionality of the 1999 version of CALJIC No. 2.50.01, but commented that it

had been “improved” by the addition of the sentence in the 2002 amendment. 

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As described by the California Court of Appeal, the trial court gave the post-1999

revision of CALJIC No. 2.50.01 to petitioner’s jury. Challenges to the constitutionality of the

1999 and 2002 versions of CALJIC No. 2.50.01 have been rejected by numerous federal courts

in unpublished opinions. See e.g. Abel v. Sullivan, No. 08-55612, 2009 WL 1220761, *3 (9th

Cir. 2009) (2002 version); Smith v. Ryan, 220 Fed. Appx. 563, **3 (9th Cir. 2007) (1999

version); McGee v. Knowles, 218 Fed. Appx. 584, **1 (9th Cir. 2007); Turner v. Adams, No. C

07-6258 MHP (PR), 2010 WL 702268, *21 (N.D. Cal., February 25, 2010) (2002 version); Cata

v. Garcia, No. C 03-3096 PJH (PR), 2007 WL 2255224, *15-16 (N.D. Cal., Aug. 3, 2007) (1999

version); Perez v. Duncan, 2005 WL 2290311 (N.D. Cal., Sept. 20, 2005) (1999 version). Based

on the reasoning of the above-cited opinions, this court concludes that the decision of the state

court rejecting petitioner’s jury instruction claim is not contrary to or an unreasonable

determination of United States Supreme Court authority. Accordingly, petitioner is not entitled

to relief on this claim. 

III. Conclusion

For all of the foregoing reasons, 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-one

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.” Failure to file objections

within the specified time may waive the right to appeal the District Court’s order. Turner v.

Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In

his objections petitioner may address whether a certificate of appealability should issue in the

event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 

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Section 2254 Cases (the district court must issue or deny a certificate of appealability when it

enters a final order adverse to the applicant). 

DATED: March 29, 2010.

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