FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFF FOWLER, 

Petitioner-Appellant, No. 04-15885

v. D.C. No.  CV-00-02195- SACRAMENTO COUNTY SHERIFF’S

MCE/PAN DEPARTMENT; CALIFORNIA ATTORNEY

GENERAL, OPINION

Respondents-Appellees. 

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, District Judge, Presiding

Argued and Submitted

June 14, 2005—San Francisco, California

Filed August 31, 2005

Before: Richard C. Tallman, Jay S. Bybee, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea

11925
COUNSEL

Quin Denvir and Allison Claire, Office of the Federal

Defender, Sacramento, California, for petitioner-appellant Jeff

Fowler.

Bill Lockyer, Robert R. Anderson, Mary Jo Graves, John G.

Mclean and George M. Hendrickson, Office of the Attorney

General of the State of California, Sacramento, California, for

respondent-appellee the State of California.

OPINION

BEA, Circuit Judge: 

Defendant-Appellant Jeff Fowler was convicted of annoying or molesting Charla Lara in violation of California Penal

Code § 647.6 following a jury trial in which he was precluded

from cross-examining Lara regarding two prior incidents in

which she alleged that other men had molested her. We conclude that the proffered cross-examination sufficiently bore

upon Lara’s reliability or credibility such that the jury might

reasonably have questioned it and, thus, that the crossexamination implicated Fowler’s Sixth Amendment right to

confrontation. We further conclude that the trial court’s

implicit determination — that precluding the proffered crossexamination, rather than limiting it, was not unreasonable,

FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11929
arbitrary or disproportionate given the trial court’s concerns

about waste of time, confusion of the issues, and prejudice —

was itself objectively unreasonable. Finally, because Lara’s

testimony was crucial to the State’s case, which, in any event,

was not strong, we conclude that this error had substantial and

injurious effect or influence in determining the jury’s verdict.

We therefore reverse the district court’s order denying Fowler’s petition for a writ of habeas corpus, and remand for issuance of a conditional writ.

I.

A.

On September 5, 1998, Fowler agreed to drive Lara from

her mother’s apartment to her friend’s house. Lara, who was

then fourteen years old, was daughter to Kelly Kenniston,

with whom Fowler had been romantically involved. All parties agree that, before driving Lara to her friend’s house, Fowler applied some type of lotion to her, and that, while driving

Lara to her friend’s house, Fowler engaged her in a sexually

explicit conversation. However, the details in Lara’s and Fowler’s accounts differ considerably. There were no third-party

witnesses to either event.

1.

At trial, Lara testified that before Fowler drove her to her

friend’s house, he suggested that she change clothes and then

entered the walk-in closet while she was wearing only a bra

and underpants to offer her a particular dress. Lara put on the

dress and then excused herself to the bathroom, where Fowler

followed and told her that she needed some lotion and that he

would apply it. He first applied it to her lower legs and thighs

and, while doing so, his hand brushed the outside of her

underpants several times. He then applied the lotion to her

arms, after which he told Lara to lift her dress so that he could

apply it to her back. Lara complied, and, as Fowler was apply11930 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
ing the lotion to her back, he pushed her underpants down

with his hand. He also applied the lotion to Lara’s stomach,

and, while doing so, slipped his hand underneath her underpants, but did not touch her vagina. Finally, he applied the

lotion to her breasts, moving his hands inside her bra and

touching her nipples. Fowler and Lara then left the apartment.

While driving Lara to her friend’s house, Fowler asked her

whether she watched pornographic movies. He also suggested

that, if she “got ‘horny,’ ” she should masturbate rather than

have sex, but that, should she have sex, she should use a condom.

2.

As noted above, Fowler concedes that he applied the lotion

and that he later engaged Lara in a sexually explicit conversation. Otherwise, he tells a very different story. Fowler testified

that Lara was already wearing the dress when he entered the

apartment. He testified further that Lara asked him to apply

the lotion, and that he did so quickly and asexually. Specifically, while he acknowledged applying the lotion to Lara’s

lower legs, arms and possibly her shoulders and back, he

denied having touched her thighs, groin, stomach, breasts or

nipples. As for the later conversation, Fowler explains that he

initiated the conversation because Lara’s father previously

had told Fowler that Lara was “messing around” with her

step-brothers, and Fowler was attempting to counsel Lara

about the differences between appropriate and inappropriate

sexual behavior. 

3.

After Lara arrived at her friend’s house, her friend’s mother

noticed that Lara did not appear to be feeling well. When she

inquired, Lara eventually said something about Fowler having

put lotion on her, prompting her friend’s mother to telephone

Kenniston, who, in turn, contacted the police. About two

weeks later, Lara was questioned about the incidents by an

FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11931
interview specialist with the Multi-Disciplinary Interview

Center (“MDIC”), while a detective with the Sacramento

County Sheriff’s Department observed from behind a twoway mirror. 

B.

1.

Shortly afterwards, Fowler was charged with sexual battery

in violation of California Penal Code § 243.41 and annoying

or molesting a minor in violation of California Penal Code

§ 647.6.2 He pleaded not guilty. 

Before trial, the State moved to prevent Fowler from crossexamining Lara and offering evidence regarding two incidents

of molestation that, in her MDIC interview, Lara had claimed

to have suffered about six years before the incident involving

1A sexual battery takes place when, for the purpose of sexual arousal,

sexual gratification, or sexual abuse, the defendant (1) touches an intimate

part of the alleged victim while the alleged victim is (a) unlawfully

restrained and the touching is against the will of the alleged victim,

(b) institutionalized for medical treatment and seriously disabled or medically incapacitated and the touching is against the will of the alleged victim, or (c) unconscious of the nature of the act because the defendant

fraudulently represented that the touching served a professional purpose,

or (2) causes the alleged victim to masturbate or touch an intimate part of

the defendant or another while the alleged victim is (a) unlawfully

restrained and the touching is against the will of the alleged victim, or

(b) institutionalized for medical treatment and seriously disabled or medically incapacitated and the touching is against the will of the alleged victim. Cal. Penal Code § 243.4. 

2Conduct qualifies as annoying or molesting for purposes of California

Penal Code § 647.6 if the conduct “would unhesitatingly disturb or irritate

a normal person if directed at that person” and was “motivated by an

unnatural or abnormal sexual interest in . . . the alleged child victim[ ].”

CALJIC 16.440; accord People v. Lopez, 965 P.2d 713, 717 (1998). The

conduct need not “actually disturb or irritate the child” nor must “the body

of the child be actually touched.” CALJIC 16.440; accord Lopez, 965 P.2d

at 717. 

11932 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
Fowler. Fowler opposed the State’s motion, arguing that it

would violate his Sixth Amendment rights to confront and

cross-examine adverse witnesses and his Fourteenth Amendment right to due process. In opposing the motion, Fowler

made a proffer to the trial court detailing the proposed crossexamination. The proffer was based on the MDIC interview

and on a police report in connection with the second of the

two earlier alleged incidents of molestation. 

According to Fowler’s proffer, the first of these two prior

incidents involved an “acquaintance” of Kenniston named

Tommy Filson. Lara claimed to have been sleeping at Filson’s

residence when Filson “grabbed her in the crotch, pulled

down her pants, touched her butt,” and then repeated the process at least twice. According to Lara, Filson “went to either

jail or prison as a result of that.”

3

The second incident occurred “a little bit after that” and

involved Kenniston’s then-boyfriend Steven Hendrix.

According to Fowler’s reading of Lara’s MDIC interview:

My mom had a boyfriend and, umm, like this is like

— like a little bit after that Tommy [Filson] incident.

So I was thinking I was just like a little cautious

about things. And he was putting me to bed, and I

don’t really know if he meant to do that, so he —

like he was like flying me into bed and he, like he

was holding my crotch, and I was just — I said

something to my mom, and my mom went and told

the cops. But I don’t think . . . it was that big of a

deal.

(Emphases added). The Bakersfield Police Department inves3

In fact, although Filson was charged with committing lewd and lascivious acts on both Lara and a friend with whom Lara was sharing a bed, Filson was convicted of committing lewd and lascivious acts only as to the

friend, not Lara. 

FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11933
tigated this second incident, and although, in retrospect, Lara

admitted to having been “a little cautious about things” and

described the incident as not “that big of a deal,” she reported

to the Bakersfield Police Department at the time of the incident “that [Hendrix] put his hand between her legs on her private part and squeezed about four times.” Nonetheless, the

Bakersfield Police Department concluded that the case was

“unfounded,” apparently because Lara’s statements were

uncorroborated and because Kenniston contradicted Lara.

Specifically, although intoxicated at the time of the alleged

incident, Kenniston claimed to have observed Hendrix putting

Lara to bed on the night in question and to have seen no inappropriate touching: “[Kenniston] said she only observed

[Hendrix] . . . lay [Lara] on the bed, in a sense. She said

before that she did not observe anything unusual . . . . She

never noticed him to touch [Lara] in any way, and she

believed [Lara] was asleep during the entire time.” 

Fowler argued that the incident involving Hendrix was evidence that, owing to the earlier incident involving Filson,

Lara had a tendency to, as she put it, be “a little cautious

about things” and, perhaps, as Fowler put it, to be “supersensitive” to physical contact “somewhere near a sensitive area

such as a breast or vaginal area or crotch” by adult men and,

thus, to “[mis]perceive[ ],” “exaggerate[ ]” or “overreact[ ].”

Fowler argued that this was particularly relevant given that he

“acknowledge[d] that he rubbed cream on [Lara’s] legs and

arms,” but denied “touch[ing] her in a sexual manner or in a

sexual place.” Fowler also argued that the incident involving

Hendrix was evidence not merely of Lara being prone to overreaction, but also of her untruthfulness. 

The trial court granted the State’s motion to preclude the

proffered cross-examination. It first explained that there was

no “indication” that Lara actually overreacted or lied in the

prior incidents and that the facts of the prior accusations were

“very dissimilar” from those here. It then “weigh[ed] the evidence” pursuant to California Evidence Code § 352 against

11934 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
the facts that its introduction “would consume an inordinate

amount of court time,” “would be extremely confusing to this

jury,” and “would be significantly more prejudicial than it

would be probative.”

4

2.

At the conclusion of the ensuing two-day trial, the jury

deliberated for four days. Ultimately, it was unable to reach

a unanimous verdict as to the sexual battery charge, but convicted Fowler of annoying and molesting Lara. Fowler was

placed on three-years probation, conditioned on his serving

150 days in county jail and registering as a sex offender pursuant to California Penal Code § 290.

3.

After exhausting his state remedies, Fowler filed in federal

district court the petition for a writ of habeas corpus now

before us. He made six claims, including that in limiting his

cross-examination of Lara, the trial court violated his Sixth

Amendment right to cross-examine adverse witnesses. The

magistrate judge recommended issuing the writ on the basis

of this claim, but otherwise found Fowler’s claims to be without merit. Rejecting the magistrate judge’s recommendation,

the district court concluded that all of Fowler’s claims were

without merit and denied the petition. Fowler then filed this

timely appeal, and the district court granted a certificate of

appealability as to all of the issues raised in the petition. We

have jurisdiction pursuant to 28 U.S.C. § 2253.5

4California Evidence Code § 352 is the rough equivalent of Federal

Rule of Evidence 403, stating: “The court in its discretion may exclude

evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b)

create substantial danger of undue prejudice, of confusing the issues, or of

misleading the jury.” Cal. Evid. Code § 352. 

5Typically, federal courts have jurisdiction to consider a habeas petition

only if the petitioner is “ ‘in custody’ under the conviction or sentence

FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11935
II.

A.

We review a district court’s decision to deny a petition for

a writ of habeas corpus de novo and its findings of fact for

clear error. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th

Cir. 2004). 

B.

Because Fowler filed this petition for a writ of habeas corpus on October 6, 2000 and, thus, after the effective date of

the Antiterrorism and Effective Death Penalty Act

under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S.

488, 490-91 (1989) (citing Carafas v. LaVallee, 391 U.S. 234, 238

(1968)); Resendiz v. Kovensky, 416 F.3d 952, ___, 2005 WL 1501495, at

*6 (9th Cir. 2005) (noting exceptions to the “in custody” requirement); see

also 28 U.S.C. §§ 2241(c)(3), 2254(a). “A probationary term is sufficient

custody to confer [this] jurisdiction.” See United States v. Spawr Optical

Research, Inc., 864 F.2d 1467, 1470 (9th Cir. 1988). Fowler was on probation at the time he filed his habeas petition. Therefore, this is unlike

Henry v. Lungren, 164 F.3d 1240 (9th Cir. 1999), wherein we held that

being subject to California’s sex offender registration requirement is

merely a collateral consequence of conviction and does not itself satisfy

the requirement for habeas relief that the petitioner be “in custody.” Id. at

1241-42 (citing Williamson v. Gregoire, 151 F.3d 1180, 1184 (9th Cir.

1998)). 

Further, although Fowler is no longer on probation, “[s]o long as the

adverse consequences of a criminal conviction remain, a petition for a writ

of habeas corpus is not moot, even though the petitioner’s custody has

expired since filing.” Spawr Optical Research, Inc., 864 F.2d at 1470 (citing Carafas, 391 U.S. at 236-38); accord Spencer v. Kemna, 523 U.S. 1,

7 (1998); Maleng, 490 U.S. at 491-92. Fowler continues to be subject to

California’s sex offender registration requirement. Cal. Penal Code

§§ 290(a)(1)(A), 290(a)(2)(A) (requiring those who have been convicted

of specified offenses to register as sex offenders so long as they reside,

attend school, or work in California, and listing annoying or molesting a

minor in violation of California Penal Code § 647.6 as among the offenses

requiring registration).

11936 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
(“AEDPA”), its provisions apply. Lindh v. Murphy, 521 U.S.

320, 322-23, 336 (1997). AEDPA states in relevant part: 

An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of

a State court shall not be granted with respect to any

claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the

claim . . . 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 . . . . 

28 U.S.C. § 2254(d)(1). Before applying this now familiar

provision, three points bear repetition. 

First, “clearly established Federal law[ ] as determined by

the Supreme Court of the United States,” id., refers to “the

governing legal principle or principles” set forth by the

Supreme Court as of the time of the relevant state-court decision, Lambert v. Blodgett, 393 F.3d 943, 974 (9th Cir. 2004)

(citing Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)),

which is the “last reasoned decision” by the state court. Robinson, 360 F.3d at 1055. Nevertheless, “[o]ur cases may be

persuasive authority for purposes of determining whether a

particular state court decision is an ‘unreasonable application’

of Supreme Court law, and may also help us determine what

law is ‘clearly established.’ ” Duhaime v. Ducharme, 200

F.3d 597, 600 (9th Cir. 2000). 

Second, a decision is “contrary to” clearly established federal law as determined by the Supreme Court if “the state

court applies a rule that contradicts the governing law set

forth in [the Supreme Court’s] 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 [that] precedent.” Williams v.

Taylor, 529 U.S. 362, 405-06 (2000). By contrast, the mere

FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11937
failure to identify expressly the correct legal standard does not

render the state court’s decision “contrary to” clearly established federal law as determined by the Supreme Court so

long as the state court’s reasoning and result are not “contrary

to” that precedent. Early v. Packer, 537 U.S. 3, 8 (2002). 

Third, a decision involves “an unreasonable application of”

clearly established federal law as determined by the Supreme

Court only if its application of that law is “objectively unreasonable,” Williams, 529 U.S. at 409, which means something

more than merely incorrect. Id. at 410-11. “[T]he range of

reasonable judgment can depend in part on the nature of the

relevant rule. . . . The more general the rule, the more leeway

courts have in reaching outcomes in case by case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). 

III.

A.

[1] The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses against

him . . . .” U.S. Const. amend. VI. This right, which is incorporated by the Fourteenth Amendment so as to apply to state

prosecutions, Pointer v. Texas, 380 U.S. 400, 403 (1965),

“guarantees the defendant [not only] a face-to-face meeting

with witnesses appearing before the trier of fact,” Coy v.

Iowa, 487 U.S. 1012, 1016 (1988), but also the right to crossexamine those witnesses. Pointer, 380 U.S. at 404, 406-07;

Douglas v. Alabama, 380 U.S. 415, 418 (1965) (“[A] primary

interest secured by [the Confrontation Clause] is the right of

cross-examination . . . .”). Thus, as is relevant here, “a criminal defendant states a violation of the Confrontation Clause

by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed . . . ‘to expose

to the jury the facts from which jurors . . . could appropriately

draw inferences relating to the reliability of the witness.’ ”

11938 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
See Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)

(quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)); see also

Olden v. Kentucky, 488 U.S. 227, 231 (1988) (per curiam)

(quoting Van Arsdall, 475 U.S. at 680). 

1.

Before turning to what is meant by “appropriate” crossexamination, Van Arsdall, 475 U.S. at 680, two points warrant

emphasis. 

[2] First, “the right to cross-examine includes the opportunity to show [not only] that a witness is biased, [but also] that

the testimony is exaggerated or [otherwise] unbelievable.”

Pennsylvania v. Ritchie, 480 U.S. 39, 51-52 (1987) (plurality); see also Delaware v. Fensterer, 474 U.S. 15, 22 (1985)

(per curiam) (“[T]he Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to

probe and expose [testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-examination,

thereby calling to the attention of the factfinder the reasons

for giving scant weight to the witness’ testimony.”); Davis,

415 U.S. at 316 (“[T]he cross-examiner is . . . permitted to

delve into the witness’ story to test the witness’ perceptions

and memory, [and] . . . has traditionally been allowed to

impeach, i.e., discredit, the witness.”). Thus, crossexamination may implicate the Sixth Amendment without

implying conscious or malicious fabrication on the part of the

witness so long as it otherwise bears on the witness’s reliability or credibility. See Van Arsdall, 475 U.S. at 680. For example, in Davis, the defendant sought to cross-examine a

prosecution witness regarding the fact that, at the time he

identified the defendant to the police, he was on probation

after having been adjudicated a juvenile delinquent. Davis,

415 U.S. at 309-11. In so doing, the defense sought to show

not that the prosecution witness consciously or maliciously

lied, but that he might have made a “hasty and faulty identification” of the defendant to shift suspicion away from himself,

FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11939
or that he might have been subject to “undue pressure” from

the police resulting from fear of possible probation revocation. Id. at 311, 317-18. The Supreme Court held that the precluded cross-examination came within the ambit of the Sixth

Amendment. Id. at 317-18. 

[3] Second, cross-examination may implicate the Sixth

Amendment even if it is not certain to affect the jury’s assessment of the witness’s reliability or credibility. See Davis, 415

U.S. at 317 (refusing to “speculate as to whether the jury, as

sole judge of the credibility of a witness, would have accepted

th[e] [defendant’s] line of reasoning had counsel been permitted to fully present it,” but nevertheless concluding that the

trial court violated the defendant’s Sixth Amendment right to

cross-examination by precluding the proffered crossexamination). Rather, it is sufficient that a jury “might reasonably” have questioned the witness’s reliability or credibility in

light of the cross-examination. Van Arsdall, 475 U.S. at 679;

see also Olden, 488 U.S. at 232 (1988) (quoting Van Arsdall,

475 U.S. at 680); Van Arsdall, 475 U.S. at 680 (holding that

the defendant “state[d] a violation of the Confrontation

Clause” where “[a] reasonable jury might have received a significantly different impression of [the prosecution witness’s]

credibility had [the defendant’s] counsel been permitted to

pursue his proposed line of cross-examination”); Davis, 415

U.S. at 319 (concluding that the trial court violated the defendant’s Sixth Amendment right to cross-examination where

“[s]erious damage to the strength of the State’s case would

have been a real possibility had [the defendant] been allowed

to pursue [the proffered] line of inquiry”).

2.

Of course, even where cross-examination bears on the reliability or credibility of a witness and sufficiently so such that

a jury might reasonably question such reliability or credibility, the cross-examination must nevertheless be “appropriate”:

11940 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
It does not follow, of course, that the Confrontation

Clause of the Sixth Amendment prevents a trial

judge from imposing any limits on defense counsel’s

inquiry into the [reliability or credibility] of a prosecution witness. On the contrary, trial judges retain

wide latitude insofar as the Confrontation Clause is

concerned to impose reasonable limits on such crossexamination based on concerns about, among other

things, harassment, prejudice, confusion of the

issues, the witness’ safety, or interrogation that is

repetitive or only marginally relevant. 

See Van Arsdall, 475 U.S. at 679; see also Olden, 488 U.S.

at 232 (same); Davis, 415 U.S. at 316 (noting that crossexamination is “[s]ubject always to the broad discretion of a

trial judge to preclude repetitive and unduly harassing interrogation”); Alford v. United States, 282 U.S. 687, 694 (1931)

(holding that a trial court “may exercise a reasonable judgment in determining when [a] subject [on cross-examination]

is exhausted” and has “a duty to protect [the witness] from

questions which go beyond the bounds of proper crossexamination merely to harass, annoy or humiliate”); Wood v.

Alaska, 957 F.2d 1544, 1549-54 (9th Cir. 1992) (explaining

that even relevant cross-examination may properly be

excluded if its probative value is outweighed by other legitimate interests).6

6The Supreme Court has likewise held that other, closely related rights

are similarly limited. E.g., Michigan v. Lucas, 500 U.S. 145, 149 (1991)

(“ ‘[T]he right to present relevant testimony is not without limitation. The

right “may, in appropriate cases, bow to accommodate other legitimate

interests in the criminal trial process.” ’ ”) (quoting Rock v. Arkansas, 483

U.S. 44, 55 (1987) (quoting Chambers v. Mississippi, 410 U.S. 284, 295

(1973))); Maryland v. Craig, 497 U.S. 836, 844-50 (1990) (holding that

although the Sixth Amendment right to “face-to-face confrontation” is not

“absolute” and, like “other Sixth Amendment rights[,] must also be interpreted in the context of the necessities of trial and the adversary process,”

it nonetheless may “be dispensed with . . . only where denial of such confrontation is necessary to further an important public policy and only

where the reliability of the testimony is otherwise assured”). 

FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11941
[4] Rather significantly, however, these restrictions must be

“reasonable,” Van Arsdall, 475 U.S. at 679, and “ ‘may not be

arbitrary or disproportionate to the purposes they are designed

to serve.’ ” Lucas, 500 U.S. at 151 (quoting Rock, 483 U.S.

at 56). For example, in Van Arsdall, although the Supreme

Court noted that trial courts may impose “reasonable limits”

on cross-examination, it nevertheless held that the trial court

there violated the defendant’s Sixth Amendment right to

cross-examination when, pursuant to the equivalent of California Code of Evidence § 352, it prohibited “all inquiry”

about an event that the State conceded had taken place and

that a jury “might reasonably” have found bore on the witness’s reliability or credibility. Van Arsdall, 475 U.S. at 676,

679 (emphasis in original). Likewise, in Olden, the Supreme

Court acknowledged that a trial court may impose “reasonable

limits” on cross-examination, but, in the very same breath,

concluded that the limitation there, again, pursuant to the

equivalent of California Code of Evidence § 352, was “beyond reason” because mere “[s]peculation” as to the prejudicial effect of precluded cross-examination could not justify its

exclusion where it had “such strong potential to demonstrate

the falsity of [the prosecution witness’s] testimony.” Olden,

488 U.S. at 230, 232. We too have held that precluding crossexamination in certain circumstances was unreasonable, arbitrary or disproportionate. E.g., United States v. Schoneberg,

396 F.3d 1036, 1042 (9th Cir. 2005) (holding that the trial

court was “erroneous” in characterizing the precluded crossexamination as irrelevant and misleading and, thus, concluding that “we cannot sustain the limitation on cross examination as an exercise of permissible discretion”); cf. LaJoie v.

Thompson, 217 F.3d 663, 671-73 (9th Cir. 2000) (concluding

that the exclusion of evidence pursuant to a state rape shield

law was arbitrary and disproportionate to the purposes served

by the rape shield law and, thus, that the exclusion of the evidence was an unreasonable application of clearly established

law as determined by the Supreme Court).

11942 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
B.

1.

The last-reasoned state-court decision here — and, thus, the

decision that we review — is the trial court’s. See Robinson

v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). As noted

above, in granting the State’s motion in limine, the trial court

first explained that there was no “indication” that Lara actually overreacted or lied in the prior incidents and that the facts

of the prior accusations were “very dissimilar” from those

here. It then “weigh[ed] the evidence” pursuant to California

Evidence Code § 352 against the facts that its introduction

“would consume an inordinate amount of court time,” “would

be extremely confusing to this jury,” and “would be significantly more prejudicial than it would be probative.” Concluding that the probative value of the proffered crossexamination was substantially outweighed by these concerns,

the trial court precluded it.

2.

a.

[5] Although the trial court did not expressly rely upon “the

governing legal principle,” see Lambert v. Blodgett, 393 F.3d

943, 974 (9th Cir. 2004), its reasoning was nonetheless consistent with that principle. It took into consideration various

legitimate state interests such as waste of time, confusion and

prejudice, and, in weighing those interests against the probative value of the proffered cross-examination, it implicitly

determined that the exclusion of that evidence was not unreasonable, arbitrary or disproportionate. See Lucas, 500 U.S. at

151; Van Arsdall, 475 U.S. at 679. Nor are there any Supreme

Court cases that are materially indistinguishable from the situation here in which the Supreme Court held contrary to the

trial court. Thus, the trial court’s ruling was not “contrary to”

clearly established federal law as determined by the Supreme

FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11943
Court. See Early v. Packer, 537 U.S. 3, 8 (2002); Williams v.

Taylor, 529 U.S. 362, 405-06 (2000).

b.

Having so concluded, we must nevertheless consider

whether the trial court’s preclusion of the cross-examination

was an objectively unreasonable application of that precedent.

In so doing, we consider first whether the proffered crossexamination sufficiently bore upon Lara’s reliability or credibility such that a jury might reasonably have questioned it,

and, if so, whether the trial court’s preclusion of this crossexamination was unreasonable, arbitrary or disproportionate

given its concerns about waste of time, confusion and prejudice. 

[6] According to Fowler’s proffer, Lara reported to the

Bakersfield Police Department “that [Hendrix] put his hand

between her legs on her private part and squeezed about four

times.” The Bakersfield Police Department concluded, however, that the case was “unfounded.” Further, despite having

reported what appears to be a deliberate molestation, Lara

herself later conceded in her MDIC interview that she had

been “a little cautious about things” and that, in retrospect,

she did not view the Hendrix incident as “that big of a deal,”

suggesting that she may have overreacted and perhaps exaggerated in reporting the Hendrix incident. Based on this evidence, a jury very well might reasonably have concluded that

Lara was hypersensitive to physical contact by adult men and,

thus, tended to misinterpret or misperceive the conduct, overreact and then, perhaps unconsciously, exaggerate or embellish in recounting the conduct so as to fit her subjective

misinterpretation or misperception.7 Additionally, given Ken7Similarly, albeit in a pre-AEDPA case, we have before recognized that

exclusion of evidence tending to show that an alleged victim of sexual

abuse is prone to fantasy implicates the Sixth Amendment. In Franklin v.

Henry, 122 F.3d 1270 (9th Cir. 1997), overruled on other grounds by Pay11944 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
niston’s statements to the detective investigating the Hendrix

incident that “she only observed [Hendrix] . . . lay [Lara] on

the bed,” “that she did not observe anything unusual,” that

“[s]he never noticed him to touch [Lara] in any way,” and that

“she believed [Lara] was asleep during the entire time,” a jury

might reasonably have found that Lara had consciously lied

about the Hendrix incident. 

[7] Nor, finally, was the Hendrix incident so dissimilar

from the allegations against Fowler that Lara’s arguable lack

of reliability or credibility in reporting that incident was irrelevant as to her allegations here. In recommending that Fowler’s habeas petition be granted on this issue, the magistrate

judge persuasively set forth the similarity of the incidents:

The trial court also erred in characterizing the [Hendrix] incident as “dissimilar” to allegations against

[Fowler]. Both incidents involved alleged molestation by Kenniston’s boyfriend; Lara accused both

men of repeatedly grabbing or bumping her groin

ton v. Woodford, 299 F.3d 815, 829 n.11 (9th Cir. 2002) (en banc), the

defendant was tried for sexually abusing a child in violation of California

Penal Code §§ 288.5(a) and 1203.066(a)(8) on the basis of the child’s

statement that the defendant had “licked her ‘private’ and made her lick

his ‘private.’ ” Id. at 1270-71. At trial, the defendant attempted to introduce as evidence that he had witnessed the same child tell her two brothers

that her mother “had come into her room and ‘licked her private.’ ” Id. at

1272. The trial court refused to admit this evidence. Id. The defendant was

convicted and, after exhausting his state remedies, filed a habeas petition

in district court, which the district court denied. Id. at 1272-73. On appeal,

we reversed, holding: “The explicit testimony bore on the credibility of the

only percipient witness against [the defendant]. If believed by the jury,

[the defendant’s] testimony would have shown [the alleged victim] capable of fantasies about her mother analogous to the charges she made

against [the defendant].” Id. at 1273. We note further that fantasy by child

witnesses is well-documented. Craig, 497 U.S. at 868 (Scalia, J., dissenting) (listing “studies show[ing] that children are substantially more vulnerable to suggestion than adults, and often unable to separate recollected

fantasy (or suggestion) from reality”). 

FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11945
through her clothing; both men admitted physical

contact occurred but not to the groin; both men gave

an innocent explanation for what took place. The

incident [here] was strikingly similar, regardless of

its remoteness in time. The evidence had substantial

relevance. 

The incidents were not, of course, identical, but, as Fowler

astutely observed before the trial court, “life isn’t like that.”

[8] Thus, although the trial court concluded that there was

no “indication” that Lara actually overreacted or lied in the

prior incidents and that the facts of the prior incidents were

“very dissimilar” from those here, in fact, there can be no

doubt that the precluded cross-examination sufficiently bore

on Lara’s reliability or credibility such that a jury might reasonably have questioned it.8

 We reiterate that “[w]e cannot

[and do not] speculate as to whether the jury, as sole judge of

the credibility of a witness, would have accepted [Fowler’s]

line of reasoning had counsel been permitted to fully present

it.” Davis, 415 U.S. at 317. But where, as here, the proffered

cross-examination might reasonably have influenced the

jury’s assessment of Lara’s reliability or credibility, absent

sufficient countervailing interests, “the jurors were entitled to

have the benefit of the defense theory before them so that they

could make an informed judgment as to the weight to place

on [Lara’s] testimony which provided a crucial link in the

proof . . . .” Id.

[9] Turning now to those countervailing interests, the trial

court predicted that the cross-examination “would consume

8

Indeed, because it expressly invoked California Evidence Code § 352,

the trial court implicitly concluded that the proffered evidence was to

some degree relevant. There is no occasion to employ the weighing process of California Evidence Code § 352 unless the proffered evidence,

later rejected, is relevant. If irrelevant, the evidence is excluded by California Evidence Code § 350, which provides: “No evidence is admissible

except relevant evidence.” 

11946 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
an inordinate amount of time,” but, in fact, there is no reason

to believe that cross-examination as to the two prior incidents

necessarily would have. Had the cross-examination been permitted, Fowler would have asked Lara about the prior incidents. At oral argument, Fowler estimated that this testimony

would take no more than one hour. Only if Lara testified

inconsistently with either her interview or the police report

would Fowler have been forced to resort to extrinsic evidence

in the form of the MDIC interview, police report or other witnesses.9

 Even then, Fowler advised the trial court that he

would “be happy” “to abide with whatever restrictions the

Court wishes to impose as far as keeping [the crossexamination] brief, relatively nonintrusive, yet getting the

probative facts before the jury.” Rather than setting forth reasonable restrictions and holding Fowler to his word, the trial

court simply excluded any cross-examination at all on the

subject. 

[10] The trial court also predicted that the crossexamination “would be extremely confusing to this jury.” Our

criminal and civil justice systems routinely charge juries with

deliberating in cases involving exceedingly complex factual

and legal issues, often involving multiple parties and multiple

events. The defendant’s theory here, by comparison, is rather

straightforward. Indeed, with respect to the potential confusion it might cause the jury, the introduction of evidence

regarding the Filson and Hendrix incidents is rather like the

routine introduction of evidence of so-called prior bad acts

against defendants charged with certain sex offenses. See,

e.g., Fed. R. Evid. 414 (permitting introduction of such evidence where the defendant is charged with child molestation);

Cal. Evid. Code § 1108 (permitting introduction of such evidence where the defendant is charged with, among other

crimes, sexual battery in violation of California Penal Code

9Fowler represented to the trial court that he had under subpoena Hendrix, the detective that investigated the Hendrix incident, and the custodian

of records from the Bakersfield Police Department. 

FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11947
§ 243.4 and/or annoying or molesting a minor in violation of

California Penal Code § 647.6). In such circumstances, juries

are tasked with evaluating allegations regarding prior, unrelated incidents and, if they find those allegations to be true,

determining their relevance as to the charged crime. If juries

are deemed competent to consider such evidence, we see no

reason why the jury here would not have been competent to

understand the proffered cross-examination. 

Finally, the trial court was concerned about the prejudice,

presumably to Lara, resulting from the cross-examination.

Other than as to her credibility, it is not clear how her testimony regarding the prior incidents would prejudice her at all.

Although the prior incidents involved sexual conduct or, at

least, alleged sexual conduct, Lara did not participate by

choice. Any disgust or hostility that jurors might have felt

would have been lodged not with Lara, but with Filson and

Hendrix. See LaJoie, 217 F.3d at 673 (holding that evidence

excluded pursuant to a state rape shield law pertaining to the

alleged victim’s history of being subject to non-consensual

sexual abuse was not prejudicial because it was “unlikely” to

cause “the jury . . . to draw an unfavorable and unwarranted

impression of the alleged victim”). Indeed, if anything, the

jurors would have been more likely to sympathize with Lara.

Further, if by “prejudice” the trial court meant embarrassment to Lara, it is not clear how the testimony would be any

more embarrassing than Lara’s testimony regarding the

alleged incident involving Fowler. Such minimal — if any —

embarrassment cannot serve as the basis to preclude relevant

cross-examination. See Davis, 415 U.S. at 319-20 (“Whatever

temporary embarrassment might result to [the prosecution

witness] or his family by disclosure of his juvenile record . . .

is outweighed by [the defendant’s] right to probe into the

influence of possible bias in the testimony of a crucial identification witness. . . . [T]he State’s desire that [the prosecution

witness] fulfill his public duty to testify free from embarrassment and with his reputation unblemished must fall before the

11948 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
right of [the defendant] to seek out the truth in the process of

defending himself.”). Finally, Fowler’s attorney advised the

trial court that he would “gently walk” Lara through these

incidents, that he would not “try [to] embarrass [Lara] in front

of the jury because that will simply alienate [his] client,” and,

indeed, that he was confident that he could get “the facts to

come out . . . without undue pressure or embarrassment to

her.” 

[11] We therefore conclude that the trial court’s preclusion

of the cross-examination was an objectively unreasonable

application of clearly established federal law as determined by

the Supreme Court. There can be no doubt that the precluded

cross-examination sufficiently bore on Lara’s reliability or

credibility such that a jury might reasonably have questioned

it. Nor were the trial court’s concerns about waste of time,

confusion and prejudice sufficiently well-founded to justify

precluding rather than limiting the cross-examination. Given

this, the trial court’s implicit determination that precluding the

cross-examination was not unreasonable, arbitrary or disproportionate given its concerns was itself objectively unreasonable. 

4.

Having determined that Fowler was denied his Sixth

Amendment right to cross-examination, we must now decide

whether that error was harmless “assuming that the damaging

potential of the [precluded] cross-examination [would otherwise have been] fully realized.” Van Arsdall, 475 U.S. at 684.

In a federal habeas proceeding, constitutional error is harmless unless it had “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” DePetris v.

Kuykendall, 239 F.3d 1057, 1061 (9th Cir. 2001) (quoting

Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). Relevant

factors to consider include: 

[1] the importance of the witness’ testimony in the

prosecution’s case, [2] whether the testimony was

FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11949
cumulative, [3] the presence or absence of evidence

corroborating or contradicting the testimony of the

witness on material points, [4] the extent of crossexamination otherwise permitted, and, of course, [5]

the overall strength of the prosecution’s case. 

See Van Arsdall, 475 U.S. at 684 (listing factors relevant on

direct review to whether a violation of a defendant’s Sixth

Amendment right to cross-examination is harmless beyond a

reasonable doubt). We apply each factor in turn. 

First, the importance of Lara’s testimony to the State’s case

cannot be overstated. Conduct qualifies as annoying or

molesting for purposes of California Penal Code § 647.6 only

if the conduct “would unhesitatingly disturb or irritate a normal person if directed at that person” and was “motivated by

an unnatural or abnormal sexual interest in . . . the alleged

child victim[ ].” CALJIC 16.440; accord People v. Lopez,

965 P.2d 713, 717 (1998). Given that the sexually explicit

conversation in which Fowler engaged Lara while driving her

to her friend’s house was arguably benign and wellintentioned, it was Fowler’s application of lotion to Lara that

was most likely to constitute annoying or molesting conduct

in the eyes of the jury. And it was Lara’s version of the event

that describes conduct that “would unhesitatingly disturb or

irritate a normal person if directed at that person” and that

suggests that the conduct was “motivated by an unnatural or

abnormal sexual interest in” Lara. See CALJIC 16.440;

accord Lopez, 965 P.2d at 717. 

[12] Thus, in the absence of any physical evidence of or

any third-party witness to the alleged molestation, Lara’s testimony was central to the State’s case. Indeed, it was the

State’s case and, so, the State’s case depended upon the jury

believing Lara’s testimony. About this there is no serious dispute, the State conceding: “The instant case was primarily a

credibility contest between Lara and [Fowler].” This alone

strongly supports a finding that the error was not harmless.

11950 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
Olden, 488 U.S. at 232 33 (concluding that the preclusion of

cross-examination was not harmless error where the witness

that was to have been cross-examined gave testimony that

was “central, indeed crucial, to the prosecution’s case”);

Davis, 415 U.S. at 319-20 (holding that the trial court precluded cross-examination in violation of the defendant’s Sixth

Amendment right to cross-examination where the prosecution

witness was “a crucial identification witness” and “[s]erious

damage to the strength of the State’s case would have been a

real possibility had [the defendant] been allowed to pursue

this line of inquiry”); see Wood, 957 F.2d at 1550 (“A trial

court does not abuse its discretion [by limiting crossexamination in violation of the Sixth Amendment] so long as

the jury has ‘sufficient information’ upon which to assess the

credibility of witnesses.”); cf. Thomas v. Hubbard, 273 F.3d

1164, 1178 (9th Cir. 2002) (“This court has recognized that

‘where a defendant’s guilt hinges largely on the testimony of

a prosecution’s witness, the erroneous exclusion of evidence

critical to assessing the credibility of that witness violates the

Constitution.’ ”) (quoting DePetris, 239 F.3d at 1062), overruled on other grounds by Payton v. Woodford, 299 F.3d 815,

829 n.11 (9th Cir. 2002) (en banc); DePetris, 239 F.3d at

1062 (same). 

Second, as noted above, Lara’s testimony was not cumulative such that an effective cross-examination would not have

undermined the State’s case. To the contrary, there was no

physical evidence and no third-party witnesses to the alleged

incidents. Other than Fowler, Lara was the only person that

could and did testify regarding the alleged incidents. 

[13] Third, given this absence of evidence either corroborating Fowler’s account or contradicting Lara’s account, the

proffered cross-examination took on added significance.

Absent the proffered cross-examination, the jury was left

without a possible explanation for why Lara’s account differed so. The proffered cross-examination, however, would

have provided a jury with a theory: that since, and perhaps

FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11951
owing to, the Hendrix incident, Lara is “a little cautious about

things” and may misinterpret asexual conduct as inappropriate

conduct and may unconsciously exaggerate asexual conduct

such that it becomes inappropriate conduct. Cf. Crane v. Kentucky, 476 U.S. 683, 689-90 (1986) (explaining the importance of providing the jury with an explanation for why two

accounts differ). 

Fourth, the trial court admitted into evidence that Lara had

committed theft by shoplifting and, thus, even after precluding the proffered cross-examination, had not eliminated all

evidence affecting Lara’s reliability or credibility. Nonetheless, whereas the fact that Lara had committed theft by shoplifting undoubtedly bore on Lara’s character for truthfulness

generally, the proffered cross-examination bore on Lara’s reliability and credibility in the specific context before the jury.

Thus, the former is qualitatively different from — and does

not substitute for — the latter. See Davis, 415 U.S. at 316

(distinguishing between “discrediting the witness [by] introduc[ing] evidence of a prior criminal conviction of that witness,” by which “the cross-examiner intends to afford the jury

a basis to infer that the witness’ character is such that he

would be less likely than the average trustworthy citizen to be

truthful in his testimony,” and “[a] more particular attack on

the witness’ credibility [that] is effected by means of crossexamination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate

directly to issues or personalities in the case at hand”). 

Fifth, as explained above, the State’s case was only as

strong as Lara’s testimony. Further, what we know of the jury

deliberations suggests that even absent the proffered crossexamination, the jury did not consider the State’s case to be

strong. The jury heard evidence for only two days, but deliberated for four. And during those four days, it requested that

certain testimony be read back, then announced that it was

deadlocked as to both counts, and, only after being ordered to

deliberate further, rendered a verdict as to the count for

11952 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T
annoying or molesting a minor. Even then, the jury remained

deadlocked as to the count for sexual battery, as to which a

mistrial ultimately was declared. 

[14] Having applied the factors listed in Van Arsdall, we

have little trouble concluding that the error here had “ ‘substantial and injurious effect or influence in determining the

jury’s verdict.’ ” See DePetris, 239 F.3d at 1061 (quoting

Brecht, 507 U.S. at 638).)

IV.

The Sixth Amendment’s Confrontation Clause “ ‘comes to

us on faded parchment,’ . . . with a lineage that traces back

to the beginnings of Western legal culture,” Coy v. Iowa, 487

U.S. 1012, 1015 (1988) (quoting California v. Green, 399

U.S. 149, 174 (1970) (Harlan, J., concurring)), and confers a

“bedrock procedural guarantee.” Crawford v. Washington,

541 U.S. 36, 42 (2004). So too, “[t]he right of crossexamination [in particular] is more than a desirable rule of

trial procedure.” Chambers v. Mississippi, 410 U.S. 284, 295

(1973). Rather, it is “essential to a fair trial,” Pointer v. Texas,

380 U.S. 400, 404 (1965), insofar as “[t]he opportunity for

cross-examination, protected by the Confrontation Clause, is

critical for ensuring the integrity of the fact-finding process.”

Kentucky v. Stincer, 482 U.S. 730, 736 (1987); accord Chambers, 410 U.S. at 295 (noting that cross-examination “helps

assure the ‘accuracy of the truth-determining process’ ”)

(quoting Dutton v. Evans, 400 U.S. 74, 89 (1970)). This is

because “[c]ross-examination is the principal means by which

the believability of a witness and the truth of his testimony are

tested.” Davis v. Alaska, 415 U.S. 308, 316 (1974). Indeed, it

has been said that cross-examination is nothing less than the

“ ‘greatest legal engine ever invented for the discovery of

truth.’ ” Green, 399 U.S. at 158 (quoting 5 J. Wigmore, Evidence § 1367 (3d ed. 1940)); accord Pointer, 380 U.S. at 404

(noting “the value of cross-examination in exposing falsehood

and bringing out the truth in the trial of a criminal case”). 

FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T 11953
[15] For the reasons expressed above, we hold that Fowler

was denied this venerable and essential right and, further, that

the district court erred in holding that the trial court’s order

precluding cross-examination pertaining to the two prior

claims by Lara of molestation was not an unreasonable application of clearly established federal law as determined by the

Supreme Court. We therefore reverse and remand with

instructions that the district court issue a conditional writ of

habeas corpus directing that the State vacate Fowler’s conviction unless, within 90 days or as extended by the district court

as reasonably necessary, the State begins anew trial proceedings against Fowler. See Lane v. Williams, 455 U.S. 624, 630-

31 & n.10 (1982) (noting as appropriate habeas relief “set[-

ting] aside [the habeas petitioners’] convictions,” which “relief would free [the habeas petitioners] from all consequences

flowing from their convictions, as well as subject them to

[potential] reconviction with a possibly greater sentence”).10

REVERSED and REMANDED.

10Because we reverse and remand for issuance of a conditional writ of

habeas corpus, we need not reach Fowler’s remaining claims. 

11954 FOWLER v. SACRAMENTO COUNTY SHERIFF’S DEP’T