Brown v. Robinson

KEVIN A. BROWN, Petitioner, v. JIM ROBINSON, Respondent.

No. 2:20-cv-0991 KJM DB P

United States District Court, E.D. California

June 21, 2021

FINDINGS AND RECOMMENDATIONS

DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a writ of habeas corpus under 28 U.S.C § 2254. Petitioner challenges his convictions and sentence imposed by the Sacramento County Superior Court in 2016 for sex crimes and robbery. Petitioner alleges violations of his right to due process and his Sixth Amendment right to counsel. For the reasons set forth below this court will recommend the petition be denied.

BACKGROUND

I. Facts Established at Trial

The California Court of Appeal for the Third Appellate District provided the following factual summary:

Prosecution Evidence

More than 20 years prior to trial, defendant married his wife, the victim's daughter. In 1995, the victim purchased an apartment building in Louisiana where she lived in the front apartment. Defendant, his wife, and their son lived together in the back apartment. The victim had defendant cut a hole in the closet so that she could go back and forth between the apartments “to do laundry and whatever she needs to do.”

One day, defendant asked the victim to come and see something in the closet. At the closet, defendant tried to shove the victim inside. Defendant's brother-in-law, the victim's son, happened to be present and intervened.

On another occasion, the victim woke up to see defendant standing over her with a knife in his hand. As the victim said defendant's name, he put his hand over her mouth. Defendant's wife and brother-in-law ran into the victim's apartment. As defendant's wife attempted to take the knife from defendant, the victim was cut on her hand. The cut was deep enough to leave a scar. Defendant's wife and brother-in-law and defendant kept “tussling with the knife” until the blade broke from the handle.

The victim testified she had known defendant to use crack cocaine in Louisiana. During both assaults, defendant seemed like a different person and behaved erratically. About defendant, the victim testified that “he's a pretty decent person other than when he's under the influence.”

As a result of the damage caused by Hurricane Katrina in 2005, the victim and her family - including defendant and his wife - moved to Sacramento to be near other family members. In 2012, defendant, his wife, and their son moved in with the victim at her residence in Sacramento.

On January 11, 2013, the victim came home from work around 5:30 p.m. As she walked inside, defendant surprised her and began punching her in the face. The victim attempted to fight back. Defendant put her into a chokehold and told her he was going to kill her if she did not stop fighting. Defendant choked the victim until she urinated on herself and lost consciousness. When the victim regained consciousness, she was lying on the floor with her arms tied behind her back and her legs taped up. Defendant put duct tape over the victim's mouth.

Defendant asked for and received the victim's bank card and PIN. Defendant said the PIN “better be right” or he would “come back and get [her].” The victim scooted toward the kitchen to try to find something to help free herself.

Defendant returned within 15 minutes and found the victim in the kitchen. Even with duct tape over her mouth, the victim believed defendant understood what she was saying. Defendant dragged her back into the living room and tied her more tightly with a vacuum cleaner cord. Defendant paced for a few minutes before dragging the victim into a small bedroom. The windows were closed and there was no ventilation.

The victim asked defendant what he was doing. Defendant responded, “Shut up.” Defendant smoked crack cocaine from a pipe for about 10 minutes. Defendant was so close to the victim she “inhaled whatever it was he was smoking.” Defendant then pulled down the victim's pants. The victim told him, “Kevin, you don't want to do that.”

Defendant used a telephone to call someone to tell the call recipient to “bring him some more.” Defendant stepped outside and spoke with someone. After about 5 to 10 minutes, defendant returned. Defendant resumed smoking. The victim was lying on the bed with her pants pulled down.

Defendant took off his clothes and inserted his penis into the victim's vagina. He then inserted his penis into her anus. Defendant was smoking while he inserted his penis into her anus for the first time. “After a while, when he ... couldn't get an erection, he stopp[ed] and started smoking” again. At some point, defendant licked her breast.

The victim testified defendant inserted his penis into her anus during three “different separate occasions.” Between the second and third occasion, defendant “[j]ust smoked.” Although defendant never achieved a full erection, the victim said he was most erect during the third insertion into her anus. After the third attempt, defendant appeared to get tired, got up, and began pacing again. The victim estimated the assault ended at 1:30 a.m.

The victim did not consent to sex or smoke crack cocaine with defendant.

Defendant freed the victim and then drove off in her vehicle. The victim informed defendant's wife of the assault and left the house. Defendant's wife called the police and the victim went to the Sutter Medical Center.

The victim was examined by physician's assistant Jennifer Joses around 5:00 a.m. on January 12, 2013. The victim reported she had not had consensual sexual intercourse within the previous 5 days, had not consumed alcohol within the previous 12 hours, and had not used drugs within the previous 96 hours. The victim's right eye showed a ruptured blood vessel consistent with receiving a direct blow or being choked. The victim had multiple bruises on her neck, right knee, and right arm. Joses did not observe any signs the victim was under the influence of cocaine.

The victim was bleeding at the opening of her cervix. She also had abrasions at the anal fold that were consistent with sexual assaults such as anal penetration. Joses collected several biological samples from the victim, including a urine sample and the victim's underwear.

At 11:00 a.m., defendant called his wife and said he was in Los Angeles. Defendant's wife testified that “he don't know what happened. All he knows is he was driving and when he really woke up, he was in LA. That's what he said.” Defendant's wife arranged a three-way conference call including defendant, herself, and City of Sacramento Police Detective Newby. During the call, which was played for the jury, defendant stated he borrowed the victim's car. He admitted taking the victim's ATM card and money. He remembered driving to Los Angeles but not assaulting the victim. Defendant admitted he had ingested “drugs.” He denied having sex with the victim or tying her up.

Defendant's wife testified she had never known the victim to ingest crack cocaine. Although defendant's wife had observed others to be under the influence of crack cocaine, she did not see any such signs in the victim after the assault.

Later, after defendant was taken into custody, he was interviewed by City of Sacramento Police Detective Terri Castiglia. During the interview, defendant acknowledged taking the victim's car and money from her bank account. Defendant admitted he had smoked crack cocaine on the day of the incident. Defendant stated he could not remember what had happened when the victim arrived home from work that day. Defendant noted his DNA had been collected and “if it matched up whatever they said I done, I must have done it.”

Criminalist Sarah Porter testified as an expert witness in forensic examination of body fluids and tissues for controlled substances, including cocaine and cocaine metabolite. Porter's testing of the victim's urine sample revealed the presence of benzoylecgonine, a cocaine metabolite. Porter stated that “there are cases where people may come in contact with cocaine passively, such that they then have the cocaine or cocaine metabolite in their system as a result.” Second-hand smoke from a crack cocaine user can cause the passive exposure. Porter described studies in which exposure to second-hand smoke or vaporized cocaine produced positive urine results. However, Porter did not opine about how the victim might have ingested or been exposed to cocaine.

Forensic testing matched defendant's DNA with a DNA profile on swabs taken from the victims' breast and rectal swabs.

Defense

During closing arguments, defendant's trial attorney argued the evidence was insufficient to convict defendant. Defense counsel argued the evidence showed the victim had smoked cocaine and the injuries she sustained “were more visible than they look.” The defense theory was that the victim had smoked cocaine with defendant and then lied about it and the sexual assault.

People v. Brown, No. C081100, 2019 WL 2314592, at ** 1-3 (Cal.Ct.App. May 31, 2019) (ECF No. 20-8 at 2-7^[1]).

II. Procedural Background

A. Judgment and Sentencing

A jury convicted defendant of committing the following offenses against the victim: three counts of forcible sodomy (Cal. Penal Code § 286(c)(2); Counts 1-3); rape (Penal Code § 261(a)(2); Count 4); sexual assault (Penal Code § 243.4(a); Count 5); false imprisonment (Penal Code § 236; Count 6), robbery (Penal Code § 211; Count 7), and unlawfully taking a vehicle (Veh. Code, § 10851(a); Count 8). The jury also found true the allegations that defendant bound the victim during the rape and sodomies in violation of Penal Code § 667.61(e)(5), which imposed a minimum fifteen-year sentence. The trial court sentenced defendant to serve a state prison term of 66 years to life.

B. ...