Vogt v. Fisher

KYLE VOGT, Plaintiff, v. RAYTHEL FISHER, Defendant.

No. 20-cv-03130-EMC

United States District Court, N.D. California

May 23, 2022

PUBLIC/REDACTED VERSION

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Docket No. 1

EDWARD M. CHEN UNITED STATES DISTRICT JUDGE

A jury in San Mateo County Superior Court convicted petitioner Kyle Vogt of aggravated sexual assault of a minor under age 14 nine counts of lewd or lascivious acts involving substantial sexual conduct with a minor under age 14, exhibiting harmful material to a minor with the intent of seduction, and two counts of committing a lewd or lascivious act with a minor age 14 or 15. See Cal. Pen. Code §§ 269(a), 288(a), 288.2(a), 288(c)(1). The state court sentenced him to 15 years to life, plus 24 years in prison.

Currently pending before the Court is Mr. Vogt's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to seek relief from his state court conviction. According to Mr Vogt, his constitutional rights were violated, primarily as a result of instructional error, improper admission of evidence, and ineffective assistance of counsel. For the reasons explained below, the Court DENIES Mr. Vogt's petition.

I. BACKGROUND

A. Factual Background

On April 29, 2014, a jury convicted Mr. Vogt for sexually abusing his girlfriend's younger half-sister, J.A., since she was five or six years old until she was about 13 years old. See Docket No. 30-1 (“Ex. H”) (California Court of Appeal opinion) at 1, 3. He also committed lewd acts on

J.A.'s half-sister, Jo.A. and on a family friend's daughter, A.P. Id. The following is an excerpt from the statement of facts in the California Court of Appeal's opinion in People v. Vogt, No. A145304 (Cal.Ct.App. Nov. 18, 2018):

The Family History

Melissa is the oldest of six sisters, and J.A. is the youngest. Keith is the father of the four middle sisters. In 1999, the girls' mother died. Melissa, who was eighteen years old at the time, moved to South San Francisco along with her infant son Antonio, and three-year-old half sister J.A., to live with their aunt, Luisa.

In the summer of 2002, Melissa moved to Davis with Antonio to study at UC Davis. That fall, Melissa started dating defendant. Around November 2006, Melissa bought a house on Hillside Boulevard, close to where J.A. was living with Luisa. In June 2009, Keith, along with Melissa's two other sisters, Jo.A. and K.A., moved into the Hillside Boulevard home. Defendant moved out of the Hillside Boulevard home for two periods of time when he and Melissa broke up. The first period was “[m]aybe” in 2009, and the second period was in 2010 and 2011.

Defendant frequently bought J.A., Jo.A., and K.A. gifts including shoes, clothes, and phones. Occasionally, defendant and the girls kept the gifts a secret if they thought Melissa or Luisa would disapprove.

J.A. Reports Defendant's Abuse

When J.A. was in seventh grade, she gave her friend Alanii a letter stating that her sister's boyfriend had been “messing with” her since she was eight years old, that she was “getting raped, ” and that she would get killed if Alanii told anyone. Alanii gave the letter back to J.A. and kept the secret.

When J.A. was a high school sophomore, she told another friend, Brianna, that defendant had been raping her since she was five years old. J.A. asked Brianna not to tell anyone, and Brianna complied.

In February 2012, when J.A. was 15 years old, she wrote a private message on Facebook to her sisters, Jo.A. and K.A., accusing defendant of raping her since she was five years old. Jo.A. told her sister A.A. what she had learned, and A.A. alerted Luisa. Luisa told J.A., who was staying with her sister in Reno at the time, to return home. Upon her return, J.A. gave Luisa a letter disclosing the abuse. Luisa immediately took J.A. to the police station where they met briefly with Sergeant Kenneth Chetcuti. Chetcuti interviewed J.A. further and arranged for her to be medically examined. The Investigation

Chetcuti arranged for J.A. to make a pretext call to defendant. A recording of the call was played for the jury. During the call, J.A. confronted defendant about having molested and raped her, but defendant said he could not hear her and that there was a bad connection, and the phone call was disconnected, even though Chetcuti heard no static or voices cutting in and out. During the call, defendant denied ever having raped or threatened J.A.

Chetcuti interviewed J.A.'s family members and friends and identified Jo.A. and A.P. as two more potential victims.

Chetcuti arranged for A.P. make a pretext call to defendant. A recording of that call was played for the jury. As with J.A.'s pretext call, defendant claimed he could not hear A.P., and the call was eventually disconnected.

Defendant was arrested on March 1, 2012, at Melissa's Hillside Boulevard home. Officers took a cell phone from defendant's pocket that had the same phone number used for the pretext calls. They also seized a backpack containing electronic storage devices, and computers, including a black and gray Dell desktop computer stored in the garage.

At Chetcuti's request, criminalist Terence Wong searched the Dell computer for defendant's name and email address, child pornography, and any communications between defendant and J.A.

J.A.'s Allegations of Abuse in Davis (Counts 1-4)

Several witnesses testified that J.A. visited Melissa in Davis at least once a month during the school year and several times during the summer. During these visits, defendant watched J.A. and Antonio when Melissa had to go to work or class.

J.A. testified that defendant first had sex with her in Davis in the summer when she was five years old. Defendant, who was wearing only a shirt, played adult pornography videos and told J.A. to do what the people were doing in the videos. He removed J.A.'s clothes and put a blanket over her face. J.A. felt defendant pull her legs apart and press between her legs with his penis. His penis went inside J.A.'s vagina, causing her pain. J.A. complained, but defendant told her it would not hurt. This continued for an hour, until Melissa came home. Defendant then told J.A. to take a shower and threatened to kill her if she said anything. J.A. went into the bathroom and saw blood dripping down her legs and onto the floor. She took a shower and wiped the blood off the floor so Melissa would not see it.

J.A. testified that defendant had sexual intercourse with her about nine more times during her visits to Davis. Each time, she and defendant were in Melissa's bedroom, and defendant played pornography, put his penis in J.A.'s vagina, told her to take a shower, and threatened to kill her if she told anyone.

J.A. did not want anybody to know what was happening because she was scared she would get hurt. Melissa never noticed anything unusual. Luisa observed only that J.A. became more quiet around this age.

J.A.'s Allegations of Abuse at Antoinette Lane (Counts 6-7)

J.A. continued to visit Melissa, Antonio and Kyle after they moved to Antoinette Lane in South San Francisco. J.A. testified that defendant had sexual intercourse with her about 20 times at the Antoinette Lane apartment. Each time, defendant played pornography videos, put blankets or pillows over J.A.'s face, and ejaculated onto a towel. Defendant continued to tell J.A. he would kill her if she told anyone.

J.A.'s Allegations of Abuse at the Hillside Boulevard Home (Counts 8-11)

J.A. regularly visited Melissa's home on Hillside Boulevard. J.A. testified that, as in the past, defendant would watch pornography, put something over her face, have intercourse with her, and ejaculate on a towel. J.A. testified that defendant played the pornography on a gray Dell desktop computer. These assaults occurred about 10 times, usually in the back room or Melissa's bedroom, but also in Antonio's room and the garage. Defendant also began engaging in oral sex with J.A. before and after intercourse. Defendant made J.A. orally copulate him on about six occasions. Defendant orally copulated J.A. about 10 times.

The sexual abuse did not cause J.A. physical problems, and no one noticed anything. J.A. continued acting normally because she feared defendant would kill her or Melissa would get hurt if anyone found out. However, she tried to avoid spending the night or being alone with defendant. Defendant stopped having intercourse and oral sex with J.A. when she was 13 years old, around the time Keith, Jo.A., and K.A. moved into the Hillside Boulevard house. However, defendant later offered J.A. money if she would send him nude photographs of herself, but she declined.

A.P.'s Allegations of Lewd Conduct (Counts 12-13)

A.P. and her family lived next door to J.A., and the parents became good friends with defendant and Melissa. A.P. testified that when she was 12 or 13 years old, she began to feel like she was defendant's girlfriend. They called and sent text messages to each other, sometimes using coded messages. Defendant told A.P. to delete their messages because he could get in trouble if anyone saw them. A.P.'s parents once found some of their texts and confronted defendant, but A.P. and defendant continued communicating until A.P.'s senior year of high school.

When A.P. was 12 or 13 years old, she was with defendant in the back room of Melissa's house when defendant showed her a picture of an erect penis on his phone. He said it was his penis and commented that it was large. He also said there were condoms in a nearby drawer. Defendant and A.P. then “made out” by kissing and touching.

When A.P. was 14 years old, she slept over at Melissa's house several times. One night, defendant woke A.P. and they went to the back room, where he kissed her and put his hand on her back under her shirt. A.P.

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