Amezcua v. Lizarraga

CARLOS AMEZCUA, Petitioner, v. JOE A. LIZARRAGA, Warden, Respondent.

Case No.: 18cv1317 GPC (MSB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

May 29, 2019

ORDER:

(1) DENYING PETITION FOR WRIT OF HABEAS CORPUS and

(2) GRANTING CERTIFICATE OF APPEALABILITY IN PART AND DENYING IN PART

I. INTRODUCTION

Petitioner Carlos Amezcua (Petitioner" or "Amezcua"), a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his San Diego Superior Court conviction in case number SCD258616 for six counts of lewd and lascivious acts on a child under 14 years of age. (Pet. at 1, ECF No. 1 "Pet.")¹ The Court has reviewed the Petition, the Answer and Memorandum of Points and Authorities in Support of the Answer, the lodgments, and all the supportingdocuments submitted by both parties. For the reasons discussed below, the Court the Petition is DENIED.

II. FACTUAL BACKGROUND

This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from those facts, are entitled to statutory presumption of correctness). The following facts are taken from the California Court of Appeal opinion:

This case involves Amezcua's molestation of two female relatives when they were young girls, Jane Doe 1 and Jane Doe 2.

The molestation first came to light when Jane Doe 1, who was 22 years old at the time of trial, disclosed to a relative that Amezcua had molested her when she was eight years old. Family members confronted Amezcua about the allegations, and he admitted to having molested Jane Doe 1. He also disclosed to family members that he had molested Jane Doe 2, who was 13 years old at the time of trial.

In an interview with police that was video-recorded and played for the jury at trial, Amezcua admitted to molesting Jane Doe 1 and Jane Doe 2 and described the details of the molestations.

As to Jane Doe 1, Amezcua told police that on at least three occasions when Jane Doe 1 was eight or nine years old, he rubbed her buttocks and vagina while cuddling with her. In addition, Amezcua recalled one occasion when he put Jane Doe 1's hand on his penis for a few seconds. As to Jane Doe 2, Amezcua stated that he started touching Jane Doe 2 on the buttocks and vagina over her clothing when she was approximately seven years old. According to Amezcua, he touched Jane Doe 2 in that manner "a few times" when he lived at a residence in Riverside County, including one instance during which he touched Jane Doe 2's bare skin beneath her underwear. Amezcua also stated that later, when he moved to San Diego and Jane Doe 2 was approximately 10 years old, he touched Jane Doe 2's buttocks and vagina on one occasion over her clothes. Amezcua told police that he was "aroused" during the molestation of the two girls, but he claimed that he never had an erection.

Amezcua was charged with five counts of committing lewd acts against Jane Doe 1 (counts 1-5) and seven counts of committing lewd acts against Jane Doe 2 (counts 6-12). (§ 288, subd. (a).) The information described the acts that gave rise to each count. As to the counts concerning Jane Doe 2, three of them were alleged to have taken place at Amezcua's San Diego residence and four of them at his Riverside County residence. Counts 6, 9, 10, 11 and 12 were based on allegations that Amezcua touched Jane Doe 2's vagina. Counts 7 and 8 alleged a touching of Jane Doe 2's buttocks and Jane Doe 2's chest, respectively.

Jane Doe 1 testified that when she was eight years old, Amezcua molested her in the same manner on six or seven occasions. Specifically, on each occasion Amezcua would rub Jane Doe 1's clitoris beneath her underwear, touch her breasts and put her hand on his erect penis over his clothes. On one occasion Amezcua also put his mouth on Jane Doe 1's breast and licked her nipple. According to Jane Doe 1, Amezcua suggested that she not tell anyone about the molestation.

Jane Doe 2 testified that when she was 11 or 12 years old Amezcua molested her on two occasions, and both occurred at his residence in San Diego. According to Jane Doe 2, Amezcua touch her vagina on only one occasion. Specifically, Jane Doe 2 stated that on that occasion, Amezcua caressed her arms and touched her vagina with a "slight tap" over her clothes. On the second occasion, Amezcua caressed her arm and also touched her chest near her collarbone but did not touch her vagina. When the prosecutor followed up with Jane Doe 2 about whether Amezcua touched her vagina on a second occasion, Jane Doe 2 reiterated that Amezcua did not. When the prosecutor followed up as to whether Amezcua had molested Jane Doe 2 on more than two occasions, Jane Doe 2 stated that there was no third occasion on which Amezcua molested her. Jane Doe 2 testified that Amezcua told her not to tell anyone about the molestation.

Amezcua testified at trial. He stated that he had touched Jane Doe 1 as he described during his police interview, but stated that it was done in a "playful" manner and that he did not touch her to become sexually aroused. He denied that he ever directly touched Jane Doe 1's clitoris underneath her clothes and claimed that the only time Jane Doe 1 touched his penis was by accident when he was picking her up.

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As to Jane Doe 2, Amezcua testified that he touched her on only two occasions, stating "I remember two situations with [Jane Doe 2], just two situations." Although Amezcua provided sparse detail during his testimony about the ways in which he touched Jane Doe 2 on those two occasions, he did admit that he touched Jane Doe 2's vagina on one occasion at his San Diego residence.

Later in his testimony, Amezcua admitted that he touched Jane Doe 2's vagina at the Riverside County residence. On that subject the following testimony was presented at trial when the prosecutor asked Amezcua about a description of the molestation at the Riverside County residence that Amezcua had given to police:

"[Prosecutor]: Do you remember the detective asking you, can you tell me what happened with [Jane Doe 2]? And then you replied, 'It was again, cuddling, playing. I noticed that -- uh, see if I could touch her, and I did. In the back again, start . . . in the rear end and rubbed her thighs and again in her private part.' You reference that section of your interview. Would it be fair to say that that instance of the touching was not an accident?

"[Amezcua]: Yes, it was not an accident.

"[Prosecutor]: You did it on purpose?

"[Amezcua]: Yes."

[Footnote 2: Earlier in his testimony Amezcua also seemed generally admit to this same molestation at his Riverside County residence when the prosecutor asked him about his statements to police about that incident.

Prosecutor: You told the detective you were playing piggyback or goofy games and that you and touched her - and this was at the [Riverside County] house - you touched her on her vagina on that occasion.

[Amezcua]: I think so.

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[Prosecutor]: And then they asked you how many more times it happened. You said three more times at the [Riverside County] house' is that correct?

[Amezcua]: I remember two situations with [Jane Doe 2], just two situations.]

Amezcua also testified that he did not touch Jane Doe 2 with any sexual intent and did not consider himself to be a child molester because he had no desire to penetrate either of the girls or to have sex with them. Although admitting that he told the police that he was "aroused" during the molestations, he tried to minimize that statement during his trial testimony by claiming that "[i]t was aroused in the sense of thinking, I shouldn't be doing this" and it "wasn't related to . . . sexual desire."

(Lodgment No. 6 at 2-7, ECF No. 7-10.)

III. PROCEDURAL BACKGROUND

On March 30, 2015, the San Diego District Attorney's Office filed an information charging Amezcua with twelve counts of committing a lewd act upon a child under the age of fourteen, pursuant to California Penal Code section 288(a). (Lodgment No. 1, Clerk's Tr. at 24-26, ECF No. 7-1.) Five counts involved Petitioner's conduct with Jane Doe 1 between April 11, 2001 to April 11, 2003 (counts 1-5); three counts involved his conduct with Jane Doe 2 between October 16, 2011 and October 16, 2013 (counts 6-8); and four counts were related to conduct with Jane Doe 2 between October 16, 2009 and October 16, 2011 (counts 9-12). (Id. at 26-32.)

As to counts one through six and nine through twelve, it was further alleged that Amezcua committed the offenses against more than one victim and had substantial sexual conduct with a victim under 14 years of age, pursuant to California Penal Code sections 1203.066(a)(7) and (a)(8). (Id. at 26-31.) As to all counts it was also alleged that Petitioner committed the offenses against more than one victim, under California Penal Code sections 667.61(b), (c) & (e). (Id.)

Jury trial began on August 26, 2015. (Id. at 247.) On September 1, 2015, after the close of evidence, defense counsel moved for a judgment of acquittal as to all counts,under California Penal Code section 1118.1.² (Lodgment No. 2, Rep.'s Tr. vol. 2 at 18-22, ECF No. 7-3.) The trial court granted Amezcua's motion to dismiss the section 1203.066(a)(8) allegation as to count six and denied the motion as to all other counts. (Id. at 26.) The jury began deliberations on September 1, 2015. (See Lodgment No. 1, Clerk's Tr. at 256, ECF No. 7-1.)

On September 8, 2015, the jury returned guilty verdicts on counts two, four, six, seven, nine and ten. (Id. at 170-79.) The jury further found true the section 1203.066(a)(7) allegations attached to counts two, four, six, nine and ten. (Id. at 170, 172, 174, 176, 178.) The jury also found the section 667.61 allegations to be true. (Id. at...