Eickenhorst v. Gipson

JEREMY SCOTT EICKENHORST, Petitioner, v. CONNIE GIPSON, Respondent.

No. 2:12-cv-2363 TLN DAD P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

February 6, 2015

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding through counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on May 27, 2009, in the San Joaquin County Superior Court on for five counts of committing a lewd act upon a child under the age of 14 years, in violation of California Penal Code § 288(a); and one count of misdemeanor possession of child pornography, in violation of California Penal Code § 311.11(a); with a jury finding that petitioner's crimes were committed against more than one victim. Petitioner seeks federal habeas relief on the following grounds: (1) the willful destruction of evidence by an agent with the California Department of Justice violated his right to due process; (2) his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment; and (3) misconduct by the lead detective investigating his case violated his right to due process. Upon careful consideration of the record and the applicablelaw, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.

I. Background

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal,¹ the California Court of Appeal for the Third Appellate District provided the following factual summary:

A seven-year-old girl from Kern County; an eight-year-old girl from Tulare County; and the eight year old's cousins from San Joaquin County, aged six and seven, reported to their respective mothers and then to the police that defendant Jeremy Scott Eickenhorst had either touched or asked to see their "privates" and told each of them to keep it a secret. The mothers testified that defendant had been alone with young and disabled children behind closed doors. The police confiscated his computer and found thumbnail images of child pornography.

A jury convicted defendant of five counts of committing a lewd act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)) FN1 and one count of misdemeanor possession of child pornography (§ 311.11, subd. (a)), and found true the allegation that the crimes were committed against more than one victim (§ 667.61, subd. (e)(5)). The court sentenced defendant to state prison for 75 years to life.

FN1. All further statutory references are to the Penal Code unless otherwise indicated.

On appeal, defendant contends the trial court applied the wrong standard of review in denying his motion for a new trial and failed to instruct the jury sua sponte on lesser related offenses. He also alleges insufficiency of the evidence and sentencing error. We affirm.

FACTS

Who's Who?

During the time defendant was accused of committing lewd acts with the four little girls, he was studying to become a special education teacher in Kern County. His mother, Jennie, had been a caseworker for the Kern Regional Center for people with developmental disabilities. She hosted a support group for mothers of children with disabilities, including an annual pool party. She became close friends with several of the mothers in the group, including Laurie F., whose daughter Jessica was one of the victims; D.P., whose autistic son engaged in some bizarre behaviors after defendant babysat him; and Sheila L., whose five-year-old daughter Allison was also at a pool party with her brother, who was also severely disabled.FN2

FN2. Only the minors and their parents whose given names are not among the 1,000 most popular birth names during the last nine years (according to statistical information provided by the Social Security Administration) will be designated by initials, in order to reduce confusion and improve readability. (In re Branden O. (2009) 174 Cal.App.4th 637, 639, fn. 2, 94 Cal.Rptr.3d 520; In re Edward S. (2009) 173 Cal.App.4th 387, 392, fn. 1, 92 Cal.Rptr.3d 725; Cal. Rules of Court, rule 8.400(b)(2).)

Defendant's stepfather, Rick, was related to the parents of the other child victims. Don and Jenny C. lived in San Joaquin County with their three children, A.C. and Brenna, who were victims, and D.C. Don's sister, K.C., lived in Tulare County with the fourth victim, Nicole C. Defendant attended holiday celebrations with this branch of the family.

Laurie, D.P., Jenny, and K.C. all testified that defendant spent time with the young children that made them uncomfortable. They ignored or minimized their discomfort, rationalizing that defendant enjoyed the children's company because he was going to be a teacher.

As an expert testified is common with young victims of molestation, Jessica, A.C., Brenna, and Nicole kept the secret for a period of time as defendant had instructed them, and only over time did the truth dribble out, first to their mothers and then to the police. But, as is also often the pattern, some of the victims recanted portions of their allegations at trial.

Disclosures

A.C. and Brenna. On July 4, 2006, A.C. told her mother that she had just seen defendant with her younger sister, Brenna, through a crack in the door. There are various versions of what she told her mother, but suffice it to say, her mother reacted immediately and asked her husband to make defendant leave the house. Although the two girls provided few details, their mother called the police the following day.

On July 5, 2006, Officer Kami Ysit interviewed nine-year-old A.C. and seven-year-old Brenna. A.C. told Officer Ysit that on three or four occasions, defendant asked to see her private parts. She routinely told him no. She did, however, allow him to put his hands on her hips, and he told her that it was their secret. On one occasion in particular, she made a deal with him that he would allow her to play his World of Warcraft computer game if she let him touch her hips. She also told Officer Ysit that she had seen defendant and her sister sitting on the floor in their bedroom facing each other with their legs spread apart. She told her mother becauseshe was afraid he was doing something to Brenna and would try to see her private parts.

Brenna expressed her concern to Officer Ysit that defendant would not be able to become a teacher. Nevertheless, she told her that while they were alone in her room the previous day, defendant asked to see her private parts. Because she trusted him, she pulled down her pants and underwear to show defendant. He told her not to tell anyone; it was their secret. Once her clothing was pulled up, she sat in defendant's lap and they rocked back and forth. Defendant touched her front and back private parts with his hand over her clothing. Brenna also stated defendant showed her his front private part either on this or another occasion. He pretended to be reading a Garfield book when someone knocked on the door.

A month later the girls were interviewed by a social worker. They gave a diluted version of the facts they had provided Officer Ysit, but Brenna did tell the social worker that defendant touched her vagina and bottom with his hand over her clothing, and A.C. told her that defendant asked to see her private parts on several occasions.

At trial, both girls recanted some of the more egregious allegations. A.C. testified that defendant had asked to see her private parts, but she insisted she refused. She stated she had made a deal with defendant to show him her private parts if he allowed her to play World of Warcraft, but she insisted that although she played the game she would not allow him to see her. She repeated that defendant told her to keep secret his request to see her private parts. She denied that defendant ever touched her in an inappropriate way.

Similarly, Brenna backtracked on what she had told Officer Ysit. She too denied that defendant had touched her private parts. She did remember being alone with him, but she could not remember what had happened. He did, however, ask her to show him her private parts, and she would sit on his lap when he read to her.

Nicole. After learning of her nieces' accusations against defendant, K.C., who had been molested as a child, "grilled" her daughter Nicole to ascertain if anyone had touched her inappropriately. Nicole, afraid of getting into trouble and of upsetting her mother, denied that anyone had touched her. A couple of years later, however, she confided in her cousins A.C. and Brenna, and ultimately in her mother.

In May 2008 Officer Erik Martinez interviewed Nicole. She told him about two separate incidents. First, around Thanksgiving of 2005, when she was eight years old, she hid with defendant in a closet during a game of hide and seek. According to Nicole, defendant touched her "sacred place" (her vaginal area) over the top of her clothing. Defendant told her it was a secret and not to tell anyone.

The second incident occurred a few months later at her mother's house while defendant was babysitting. Again, defendant lured herinto a closet, purportedly to tell her something private, and again touched her vaginal area and buttocks over her clothing. Defendant told her to keep it a secret.

Nicole's trial testimony was consistent with her police interview.

Jessica. Although Jessica was the first of the girls to be molested by defendant in the summer of 2004, she did not tell her mother until January of 2008. At that time, she told her mother, Laurie, that defendant had put his hand underneath her bathing suit top. Jessica was concerned about Laurie's relationship with defendant's mother, Jennie. Indeed they were close friends; in addition, Jennie was Laurie's son's caseworker and advisor on how to handle difficult behavioral issues. Despite the friendship, Laurie contacted the police.

A social worker from child protective services interviewed Jessica. Her statement to the social worker was consistent in all material

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