Michael Ray Bredemier v. Theresa Cisneros
Case Information
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MICHAEL RAY BREDEMEIER, Case No. 5:22-cv-02016-HDV (SK) Petitioner, ORDER ACCEPTING REPORT AND RECOMMENDATION TO v. DENY HABEAS PETITION BRYAN PHILLIPS, Warden,
Respondent.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the filed
(Corrected) Report and Recommendation to deny Petitioner’s Habeas
Petition and any relevant records as needed. Because the time for objections
has passed with none filed, the Court need not review de novo the findings
and conclusions in the Report and Recommendation.
See Thomas v. Arn
,
THEREFORE, the Court accepts the Report and Recommendation and orders that the petition under 28 U.S.C. § 2254 be denied. Judgment will accordingly be entered dismissing this action with prejudice.
IT IS SO ORDERED.
DATED: 6/16/25
HERNAN D. VERA United States District Judge UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MICHAEL RAY BREDEMEIER, Case No. 5:22-cv-02016-HDV (SK) Petitioner, REPORT AND RECOMMENDATION TO DENY v. HABEAS PETITION BRYAN PHILLIPS, Warden,
Respondent. Petitioner is a California inmate serving 90 years to life in prison after a jury convicted him of child sex offenses against two victims. On appeal, he claimed that the trial court incorrectly admitted evidence of uncharged bad acts including prior child sex crimes, as well as unnecessary and unreliable expert testimony, in violation of state evidence law and federal due process. He also claimed that one of the victim’s testimony was insufficient to support three of his seven convictions involving that victim. The California Court of Appeal rejected these claims on the merits in the last reasoned state court decision. Through retained counsel, petitioner now seeks federal collateral review under 28 U.S.C. § 2254, raising the same claims the court of appeal denied on the merits.
As amended by the Antiterrorism and Death Penalty Act of 1996 (AEDPA), however, § 2254 precludes relitigation of these claims unless (as pertinent here) petitioner proves that the court of appeal’s decision contradicted or unreasonably applied clearly established federal law as determined by the U.S. Supreme Court. See 28 U.S.C. § 2254(d)(1). Petitioner has not carried that burden. Indeed, he has not even framed his habeas claims in correct AEDPA terms. In any case, petitioner has neither shown that the court of appeal’s rejection of his evidentiary claims was contrary to or an unreasonable application of controlling Supreme Court precedent, nor established that the court of appeal unreasonably applied the clearly established federal law governing his insufficiency of evidence claims. As a result, the petition should be denied and this action dismissed.
I.
BACKGROUND
In 2018, police received a complaint that Jane Z.R., then 15 years old, had been sexually abused by petitioner over many years starting when she was nine or 10 years old. (1 RT 99–103). Z.R. met petitioner while living with her adoptive parents who were close family friends of his, and so she viewed him as surrogate grandfather (petitioner was in his mid to late-50s at the time). (1 RT 110–12, 115–17, 125, 145). Z.R. reported at least two instances of sexual penetration in late 2012 or early 2013 while in theaters watching movies with petitioner, as well as “repeated” incidents of lewd acts afterward at petitioner’s home during consecutive summers from 2013 to 2016. (1 RT 116–23, 126–27, 132–33). Police connected Z.R.’s complaint to another they had received around 2007 from Jane M.D, who was a friend of petitioner’s daughter in elementary school. (1 RT 53–64). M.D. reported that petitioner had committed lewd acts when she was around 11 years old during a sleepover with his daughter in 2000. (1 RT 62–66, 76–77). Like Z.R., M.D. kept that alleged abuse a secret until years later when she graduated from high school.
A. Trial Testimonies
After investigating the victims’ allegations, the State of California charged petitioner with two counts of sexual penetration with a child 10 years of age or younger (Z.R.); five counts of lewd acts with a child under 14 years of age (Z.R.); an additional sixth lewd acts count (M.D.); and one count of molesting a minor under the age of 18 years (Z.R.). (CT 143–47, 156– 70). Both victims testified at trial along with several percipient witnesses, including witnesses contradicting the victims’ accounts. (1 RT 53–64, 92– 185). One of the state’s witnesses was Z.R.’s biological grandmother who uncovered her abuse upon discovering Instagram messages and comments between her and petitioner. (1 RT 144–46). In the messages, exchanged after Z.R. had moved out of her adoptive family’s home in 2017, petitioner professed his continuing love for Z.R. and his desire to be her boyfriend. (1 RT 99–103, 150–52, 161). He also commented on Instagram pictures Z.R. posted, describing her as “cutie” and “hottie.” (1 RT 144–46, 161, 166).
For his part, petitioner didn’t testify at trial, but his attorney called witnesses including members of Z.R.’s adoptive family and petitioner’s daughter. One younger adoptive brother remembered (when he was in third grade) going to two movies with petitioner and Z.R., where she sat between them in the theaters. (2 RT 290–94). He saw nothing unusual during either movie and said that Z.R. acted normal after the movies finished. (2 RT 293– 94). Z.R.’s adoptive mother testified that she only remembered Z.R. being alone with petitioner perhaps twice during birthday parties. (2 RT 306–07). She said that Z.R. never appeared upset after those visits and that all her children, including Z.R., liked petitioner and often wanted to sit next to him in theaters. (2 RT 309–10). Finally, petitioner’s daughter testified about the sleepovers with M.D. (2 RT 320–25). She recalled one when M.D. woke up and said that her father had “done something” to her. (2 RT 324). But she couldn’t remember how she responded and thought they both just eventually went back to sleep. ( Id .). According to the daughter, petitioner weighed more than 400 pounds at the time and couldn’t walk well unassisted. [3] (2 RT 325–26). She added that M.D. came over to their home again at least once for another sleepover. (2 RT 325).
B. Challenged Evidence
In addition to victim and witness testimonies, the state introduced (1) incriminating data found on petitioner’s cellphone, (2) evidence of prior uncharged child sex abuse, and (3) expert testimony about “Child Sexual Abuse Accommodation Syndrome” (CSAAS). The cellphone evidence included links to videos titled “Father F*cks Schoolgirl Daughter” and “Father and Daughter Live on Cute Baby Cam,” as well as Internet search history for terms like “father f*cking daughter” and “young girls.” (1 RT 243–47, 265). The prior uncharged crimes involved petitioner’s younger cousin by nine years, who testified that in the late 1970s (when she was between seven and 10 years old) petitioner sexually molested and abused her. (1 RT 24–35). [4] And the CSAAS expert testified about the “pattern of behaviors many children exhibit when they’ve been sexually abused,” including delayed disclosure of abuse and contradictory or accommodating behavior with abusers. (1 RT 191, 197–98, 200). The expert added, however, that she had neither interviewed the victims nor reviewed any police reports, so her testimony was not intended to offer opinions about petitioner’s specific case. (1 RT 220–22).
Petitioner’s counsel objected before trial to the use of all this evidence. (CT 98–108; 1 RT 3–9, 200–15). He argued that petitioner’s uncharged bad acts—found in the cellphone and as alleged by his cousin—amounted to criminal propensity evidence that should be excluded for unfair prejudice and juror confusion. He also opposed the expert testimony, arguing that the science around CSAAS was unreliable and that such testimony was unhelpful in this case. Applying the relevant California rules of evidence, the trial court overruled the defense objections. (1 RT 4–7, 10–11). It found that the challenged evidence was offered for permissible purposes relevant to the charged crimes and that none of the evidence would unduly prejudice, confuse, or mislead the jury. When weighing the probative value of that evidence against the risks of misleading, confusing, or prejudicing the jury, the trial court added that any such risks would be further mitigated with limiting instructions (which the court later issued for all three challenged items of evidence) and defense counsel’s cross-examination of the witnesses (through whom the challenged evidence was later introduced). (1 RT 9–11).
C. Petitioner’s Defense
Petitioner does not claim that his attorney performed inadequately in mounting his defense at trial. Nor would the record support an ineffective assistance claim anyway. Most importantly, counsel worked to impeach the credibility of the victims (including petitioner’s cousin) and the reliability of their memories so many years after the alleged abuses. (1 RT 165–85; 2 RT 397, 399, 402–03). For instance, defense counsel successfully elicited Z.R.’s denial that any lewd act happened in a church, as the state claimed she had reported to social services. (1 RT 179). Counsel also established that police hadn’t ruled out whether others had “access” to petitioner’s cellphone or even if he had personally “downloaded” and “viewed” child pornography on the phone. (1 RT 246, 247, 404). As well, counsel elicited from the CSAAS expert that she couldn’t attest if the victims had that syndrome, that teenagers often make up stories to deflect unrelated adolescent problems, and that CSAAS cannot enhance a victim’s credibility or prove that alleged abuse happened just because it isn’t revealed until years later. (1 RT 220– 22). Counsel established, moreover, that petitioner’s weight and restricted mobility at the time of the victims’ alleged abuses would have made it too difficult for him to commit the alleged sexual acts in the ways the victims had described. (2 RT 397–98, 401).
Defense counsel also homed in on Z.R.’s testimony around her most serious allegations of sexual penetration and the number of alleged lewd acts. (1 RT 165–179). As pertinent here, when asked if petitioner’s fingers entered her vagina during the first movie, Z.R. replied, “I don’t know if it was that time it did . . . because I was young, but I believe so.” (1 RT 120). Asked the same question about the second movie, Z.R. said that petitioner put his hands in her pants again but she couldn’t remember if his fingers entered her vagina. (1 RT 122–24). When asked to recount what happened in the summers, Z.R. said that petitioner touched her vagina in his outdoor hot tub “frequently.” (1 RT 127–33). Asked for a number, she said it happened “more than two” times but couldn’t “remember” or “count” if it was “more than three.” (1 RT 127–28). Even though she later testified that the lewd acts happened “not just . . . one time each summer” but “repeatedly each summer” from 2013 to 2016 (1 RT 179), defense counsel zeroed in on these perceived equivocations or generalities in Z.R.’s testimony to argue that there was insufficient evidence to convict petitioner of any sexual penetration charges or lewd acts involving Z.R. (2 RT 397, 399–400).
Following seven days of trial, the jury was convinced by at least some of petitioner’s defenses and returned partially split verdicts after a day and a half of deliberations. (2 RT 416–21). For Z.R., the jury found petitioner guilty of only one count of sexual penetration related to the first movie incident, but acquitted him of the other count stemming from the second incident. It otherwise convicted him of all remaining counts—five lewd acts involving Z.R., one lewd act involving M.D., and one molestation involving Z.R. Afterward, at sentencing, the trial court ordered petitioner to serve a total indeterminate term of 90 years to life in state prison. (CT 250–51).
D. Direct Appeal
On appeal of his convictions, petitioner challenged the introduction of his uncharged bad acts as revealed in the cellphone evidence and his cousin’s allegations of sexual abuse, as well as the CSAAS testimony. He claimed that the challenged evidence shouldn’t have been admitted under the pertinent California Evidence Code sections and that the admission of the evidence violated federal due process. (LD 3 at 24–49). He argued, too, that Z.R.’s testimony was too equivocal to support the sexual penetration conviction and too generic to establish any more than the three lewd acts she had managed to identify by number. ( at 19–23). The California Court of Appeal rejected each of these claims in a fully reasoned opinion. (LD 5). First, the court of appeal ruled that the cell phone evidence had been appropriately admitted under Evidence Code § 1101(b), which creates an exception to the general ban found in § 1101(a) on character or other bad acts evidence offered only to show criminal predisposition to commit the charged crimes. Cal. Evid. Code § 1101. The court agreed with the trial court that the evidence was relevant to prove at least petitioner’s “intent,” which “was put at issue when he pleaded not guilty to the crimes charged.” (LD 5 at 26–30). The court then found that the trial court had reasonably exercised its discretion under Evidence Code § 352, which confers “discretion” to “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. It held that the evidence “was not unduly prejudicial” because (among other reasons) the cellphone evidence was “far less inflammatory than the testimony from the victims regarding how defendant sexually abused them.” ( Id. at 30). It also recognized that the trial court had instructed jurors that the cellphone evidence could be considered only “for the limited purposes of deciding whether” defendant “acted with the intent to arouse, appeal to or gratify the lust, passions, or sexual desires of himself or a child,” or in deciding whether the “defendant’s alleged actions were not the result of mistake or accident.” (CT 202). They were told not to consider the evidence for “any other purpose”—including to find that defendant “has a bad character or is disposed to commit crime”—and that it was “not sufficient by itself to prove that the defendant is guilty of the crimes charged.” ( ).
Second, the court of appeal rejected the claim that the evidence of prior uncharged crimes should have been excluded under Evidence Code § 352 as propensity evidence that was unduly prejudicial, misleading, and confusing. (LD 5 at 22–26). This evidence was admitted under Evidence Code § 1108, which exempts a “defendant’s commission of another sexual offense or offenses” from the general ban on propensity evidence when those prior crimes are similar to the charged crimes—so long as its probative value is not substantially outweighed by risks of undue prejudice, juror confusion, or other exclusionary factors listed in § 352. Cal. Evid. Code § 1108(a). Noting that the uncharged crimes involving petitioner’s cousin counted as sexual propensity evidence under § 1108, the court of appeal agreed with the trial court that the uncharged acts were similar enough to the charged crimes. Contrary to what petitioner had argued, the court found that the relevant point of comparison was not differences in his age at the time of the crimes but the common nature of the abuse which targeted children as young as eight or nine years old. (LD 5 at 25). It also found that the trial court was within its discretion to find that the prior crimes were not “unduly remote in time” given that other courts had allowed dated incidents 20 to 30 years before the charged crimes to be admitted under § 1108. ( Id. ). Moreover, the court of appeal underscored that the jury presumptively followed the trial court’s limiting instructions, which cautioned that if jurors were to find petitioner committed the uncharged crimes, that “conclusion [was] only one factor to consider along with all the other evidence” and “not sufficient by itself to prove defendant [was] guilty” of the charged crimes. ( at 25–26; CT 207). Indeed, the court observed, if the jury had been unable or unwilling to follow those instructions because of some impulse to “punish” petitioner for his prior crimes, it wouldn’t have acquitted him of the second sexual penetration charge. (LD 5 at 26).
Third, the court of appeal found no merit to petitioner’s arguments over the admissibility of the CSAAS evidence under California’s expert evidence rules. , e.g. , Cal. Evid. Code § 801(a) (permitting expert to testify about topics “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact”). Recognizing the continued acceptance of CSAAS testimony in prosecutions for child sex crimes, the court rejected petitioner’s “suggestion that jurors no longer harbor confusion or misconceptions about how children react to sexual abuse.” (LD 5 at 16– 17). Besides, as the court of appeal noted, it was bound by the California Supreme Court’s decision reaffirming that CSAAS evidence remains admissible “where, as here, the credibility of each victim is placed in issue due to counterintuitive behavior.” ( Id. at 17) (citing People v. McAlpin , 812 P.2d 563, 568–570 (Cal. 1991)). The court also dismissed petitioner’s “claim that CSAAS is no longer accepted within the scientific community” and so should have been excluded as unreliable. ( Id. at 17–18). It pointed to “more than three decades” of state caselaw endorsing the use of CSAAS testimony when, as here, “it is not offered as proof that a molestation occurred but to rehabilitate the child victim’s credibility when the defense suggests the victim’s postabuse [sic] conduct is inconsistent with having been abused.” ( Id. at 19).
Alternatively, the court of appeal found that even if the CSAAS testimony should have been excluded, there was “no reasonable probability of a more favorable result had the evidence been excluded.” ( Id . at 20). The court highlighted the substantial evidence of petitioner’s guilt—including from the victims’ direct testimonies and petitioner’s own Instagram messages to Z.R. ( at 21). It also explained that “any risk” of juror misuse “was eliminated by [the expert’s] clear statements that she did not review police reports, meet with the victims, interview witnesses, or review witness statements” in petitioner’s case. ( Id. ). It added that the expert admitted on cross-examination that her CSAAS testimony was “not evidence that [petitioner] committed any of the charges.” ( Id. ). And last, it stressed that the jury presumptively followed the trial court’s limiting instructions, which cautioned that CSAAS testimony “is not evidence that the defendant committed any of the crimes charged” and that jurors “may consider this evidence only in deciding whether or not [the victims’] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of their testimony.” (CT 208). [8]
As for petitioner’s federal due process arguments, the court of appeal
recognized that trial evidence “will not offend due process” unless its
admission “is so prejudicial as to render the defendant’s trial fundamentally
unfair.” (LD 5 at 30). Applying that general standard, the court first found
no due process violation in the use of the cellphone evidence because “the
trial court properly conducted the required analysis under Evidence Code
section 352 and acted within its discretion in admitting” that evidence for
permissible purposes like establishing petitioner’s intent. The court of
appeal then rejected petitioner’s due process objection to the use of the
uncharged sex crimes because it was bound by the California Supreme
Court’s decision that use of sexual propensity evidence under § 1108 is
constitutional since trial courts retain discretion to exclude such evidence
under § 352. ( at 24) (citing
People v. Falsetta
,
Finally, beyond the evidentiary challenges, the court of appeal rejected
petitioner’s insufficiency of evidence claims based on the alleged
equivocalness or genericness of Z.R.’s testimony. To start, the court
recognized that it had to view the record in the light most favorable to the
judgment, presume that the jury resolved evidentiary conflicts in favor of the
prosecution, and avoid reevaluating the credibility of witnesses. (LD 5 at 9).
Under those standards, the court of appeal found that the jury was entitled
to credit Z.R.’s belief that petitioner penetrated her during at least one of the
two movie incidents. (
Id.
at 10). Any equivocation, the court explained,
concerned possibly which theater the penetration happened in, “not whether
defendant actually did it.” (
Id.
). Likewise, viewing the evidence with all
inferences in support of the lewd act verdicts, the court found that Z.R.’s
testimony was sufficient to show five lewd acts had been committed because
she recalled at least three by number and otherwise testified that she was
“repeatedly” and “frequently” touched more than once each summer for four
straight years. (
Id.
at 13). Under California law, such descriptions—like
“twice a month” or “every time we went camping” during “the summer
before my fourth grade”—are considered legally adequate to prove the
“number of acts” and “the general time period” in which those acts occurred.
( ) (quoting
People v. Jones
,
After these unsuccessful efforts to overturn his convictions in the court of appeal, petitioner sought discretionary review in the California Supreme Court. But the state’s highest court summarily denied petitioner’s request with no comment. (LD 7). This counseled § 2254 petition then followed.
II.
DISCUSSION
Petitioner reasserts in his habeas petition the same claims rejected on
their merits by the California Court of Appeal in the last reasoned state court
decision. (ECF 1–2, Memorandum in Support of Petition (“Pet.”) at 11–31).
The court of appeal’s opinion is thus the pertinent decision subject to habeas
review under AEDPA.
See Wilson v. Sellers
,
A. The Failure to Allege that the Court of Appeal’s Decision Was
Unreasonable under AEDPA Bars Relief on the Face of the Petition
As a threshold matter, the petition—on its face—fails to allege
petitioner’s habeas claims in proper AEDPA terms, as evidenced by the fact
that the petition is substantively identical to his opening brief on appeal.
(
Compare
LD 3 at 21–22, 24, 37–43, 44–50,
with
Pet. at 12–13, 14, 15–20,
22–26, 27–31). Merits aside, that reveals a critical misunderstanding of
collateral review under § 2254.
See Davis v. Ayala
,
If these standards seem “difficult to meet,” it is because they were
“meant to be.”
Harrington
,
While this case is not one of those close calls, the consequences of
AEDPA deference underscore how far petitioner’s claims fall short of the
required showings under § 2254(d). To make those showings, petitioner
cannot merely register his disagreement with the court of appeal’s reasons
for its decision and recycle the same arguments—practically verbatim—
raised and rejected on direct review. Rather, he must demonstrate that the
court of appeal’s decision was objectively unreasonable. But since
petitioner’s habeas claims are not framed in proper AEDPA terms, much less
convincingly argued in those terms, this oversight is reason enough to deny
the petition on its face.
See Davenport
,
B. The Due Process Clause Provides an Essential—But Limited and
Narrow—Right to Exclude Unduly Prejudicial Evidence When Its
Admission Renders a Criminal Trial Fundamentally Unfair
Even if generously construed in correct AEDPA terms, the petition still
rests on many flawed assumptions and premises when casting petitioner’s
evidentiary challenges as federal due process violations. The “Due Process
Clause guarantees the fundamental elements of fairness in a criminal trial.”
Spencer v. State of Tex.
,
In so doing, the Supreme Court has “defined the category of infractions
that [can] violate ‘fundamental fairness’ very narrowly.”
Dowling v. United
States
,
Several legal principles pertinent to the petition here emerge from this
recognition that the Due Process Clause provides an essential—but still
limited and narrow—constitutional right to exclude unduly prejudicial
evidence in criminal trials. First, contrary to petitioner’s assumption, a mere
violation of rules of evidence—whether found in contemporary codified
procedures of state and federal courts or in traditional English common
law—cannot for that reason alone violate the dictates of constitutional due
process. The “Fourteenth Amendment does not confine the states to the
common-law rules of evidence, however well established.”
Great N. Ry. Co.
v. State of Wash.
,
Second, even on de novo review, federal habeas courts have no warrant
to independently review state court determinations about the admissibility
(or
in
admissibility) of evidence under state law. In fact, “a state court’s
interpretation of state law, including one announced on direct appeal of the
challenged conviction, binds a federal court sitting in habeas corpus.”
Bradshaw v. Richey
,
Yet beyond his overarching (and, as discussed next, mistaken) claim
that criminal propensity evidence is categorically proscribed by the Due
Process Clause, the balance of petitioner’s professed “due process”
arguments depend on or presuppose predicate evidentiary errors under
state
law
—including claimed mistakes in how the state courts assessed the
relative probative value of the uncharged bad acts with their potential for
undue prejudice under California Evidence Code § 352. (Pet. at 16–17, 25,
29–30). But not only do courts have “no authority to review [such] alleged
violations of a state’s evidentiary rules in a federal habeas proceeding,”
Windham v. Merkle,
Third, just like similarly evaluated trial errors also often entwined with
state law (
e.g.
, jury instructional mistakes or prosecutorial misstatements in
closing), whether errors in admission of evidence rise to a federal due
process violation depends on “examination of the entire proceedings.”
Romano v. Oklahoma
,
Perhaps foremost among those “safeguards available to defendants to
counter the State’s evidence” are “the Sixth Amendment rights to counsel,”
to “compulsory process,” and to “confrontation plus cross-examination of
witnesses.” The record here (as summarized above) reveals that
petitioner received the benefits of all these Sixth Amendment safeguards.
Relatedly, when defense counsel has been “fully apprised, well prior to trial,
that [objectionable] evidence would be introduced” and “had a full and fair
opportunity to challenge this evidence,” if not also to “present rebuttal
evidence,” a fair trial can be had even with eventual admission of unwanted
damaging evidence.
Bey v. Bagley
,
Fourth, the constitutional measure of whether challenged evidence is
so extremely prejudicial as to render a trial fundamentally unfair is not to be
confused with the factual gauge of whether a given piece of evidence should
be excluded under the discretionary rules providing for exclusion of relevant
evidence when its probative value is substantially outweighed by the risk of
undue prejudice.
See
,
e.g.
, Cal. Evid. Code § 352;
compare
Fed. R. Evid. 403
(“The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.”). For one thing, the
concerns behind these balancing rules are broader than and distinct from
federal due process concerns: they primarily guard against inflaming
emotional biases, confusing or misleading jurors, and wasting time.
Spencer
,
So, on the one hand, a trial court may abuse its discretion by
permitting irrelevant, confusing, cumulative, or inflammatory evidence to be
introduced.
Cf. Andrew
,
On the other hand, since “it is certainly possible to have a fair trial even
when state standards are violated,” the “adherence to state evidentiary rules”
will strongly suggest (if not prove on collateral review) that “the trial was
conducted in a procedurally fair manner.”
Jammal
, 926 F.2d
.
at 919. Thus,
if evidence is found—or, as here, presumed—to have been admitted under
state law based on a reasonable discretionary weighing of the evidence’s
potential prejudicial effect against its offsetting probative value, it is hard to
conceive a case when the use of such properly admitted evidence could ever
deprive a defendant of a fair trial. ,
e.g.
,
LeMay
,
On their own, these overarching due process principles explain why
petitioner “bears a heavy burden in showing a due process violation based on
an evidentiary decision.”
Boyde v. Brown,
C. Petitioner Has Identified No Supreme Court Precedent Establishing
that Propensity Evidence is Prohibited by the Due Process Clause
Start with petitioner’s claim that the admission of his uncharged bad
acts—as revealed in the cellphone evidence and his cousin’s testimony of
child sex abuse—violated federal due process because the evidence was used
only to show his “predisposition to commit the alleged offenses.” (Pet. at 23,
27, 30). As required by § 2254(d)(1), petitioner must identify Supreme
Court precedent establishing the premise for his claims—that the Due
Process Clause categorically prohibits the admission of uncharged bad acts,
including prior crimes, offered solely to show criminal propensity.
See
Lockyer v. Andrade
,
The principal cases cited by petitioner—like
Michelson v. United
States
,
Evidently misunderstanding these first principles, petitioner reads
Michelson
and
Boyd
incorrectly as
constitutional
decisions placing—in the
Due Process Clause—a categorical prohibition against
any
evidence that
could be offered to show criminal propensity. (Pet. at 23–25, 27–29).
[16]
But
those cases relied not on federal constitutional demands, but on the
Supreme Court’s inherent “supervisory power” over federal courts.
Spencer
,
Thus, contrary to petitioner’s mistaken reading of his own cited cases,
the Supreme Court has “never held that the use of prior convictions to show
nothing more than a disposition to commit crime would violate the Due
Process Clause of the Fourteenth Amendment.”
Spencer
,
they developed “broad” exceptions to that rule—“whose application [was] left
largely to the discretion of the trial judge”—permitting other bad acts
evidence when offered to prove non-propensity matters like “intent, identity,
malice, motive, and plan.”
Marshall v. Lonberger
,
None of this is to deny the valid concerns when propensity evidence is
offered for no purpose other than criminal predisposition. “The question,
however, is whether it is acceptable to deal with the potential for abuse
through nonconstitutional sources like the [rules of evidence], or whether
the introduction of this type of evidence is so extremely unfair that its
admission violates ‘fundamental conceptions of justice.’”
Dowling
, 493 U.S.
at 352. Nor is it to suggest that the Supreme Court will
never
hold that the
propensity rule can be underwritten by federal due process. ,
e.g.
,
LeMay
,
In sum, petitioner has not carried his “very high burden in proving”
that the “traditional rule precluding the use of a defendant’s prior bad acts to
prove his disposition to commit the type of crime charged is so ingrained in
Anglo–American jurisprudence as to be embodied in the due process clause
of the Constitution.”
LeMay
,
D. Fairminded Jurists Could Agree that the Admission of the Uncharged Bad Acts Resulted in No Denial of Petitioner’s Right to a Fair Trial Nor can petitioner prove that the court of appeal’s decision affirming the use of his uncharged bad acts was contrary to or an unreasonable application of clearly established federal law just because, in his view, its probative value was substantially outweighed by its “prejudicial” effect. Recall that the court of appeal found that the cellphone evidence was properly admitted under state law because it was evidence of other bad acts offered to prove not his “disposition to commit” those bad acts, but his “intent” to commit the charged crimes. Cal. Evid. Code § 1101(b); compare Fed. R. Evid. 404(b)(2) (permitting evidence “of any other crime, wrong, or act” when offered “for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident”). It also found that the evidence of petitioner’s uncharged sexual misconduct was admissible under California law, which permits that evidence expressly for propensity purposes—to prove that he committed the charged sex offenses. See Cal. Evid. Code § 1108(a). Then, for both items of evidence, the court of appeal found that the trial court reasonably exercised its discretion under Evidence Code § 352—by weighing the probative value of the evidence against its risk of undue prejudice—before admitting the evidence. And not least, the court of appeal found that the admission of the uncharged bad acts did not violate federal due process because it was relevant evidence offered for permissible purposes and accompanied by reasonable findings that the probative value of the evidence outweighed any risks of unfair prejudice, juror confusion, or other countervailing exclusionary factors in § 352.
None of these determinations contradicted or unreasonably applied
the general due process rule prohibiting admission of evidence so unduly
prejudicial as to deny a fair trial. For starters, the court of appeal recognized
and applied, as appropriate, the same general fundamental fairness principle
recognized in
Payne
and
Andrew
(LD 5 at 30), so its decision was not
“contrary to” clearly established federal law.
Early v. Packer
,
So too here. The broad due process guarantee of a fair trial free of
unduly prejudicial evidence is, of course, a highly generalized legal rule.
See
Andrew
,
To start, fairminded jurists could agree with the court of appeal’s
finding that the cellphone evidence—admitted as other bad acts to establish
the non-propensity issue of petitioner’s intent—was consistent with due
process. “Only if there are
no
permissible inferences the jury may draw from
the evidence” can the admission of “other acts” evidence ever violate due
process.
Jammal
,
Similarly, fairminded jurists could agree that admission of petitioner’s
uncharged sex crimes was not so unduly prejudicial as to infect the trial with
intolerable unfairness. Unlike the admission of “other acts” evidence for
non-propensity purposes under § 1101(b), prior sex crimes are admitted
under § 1108(a) precisely to show propensity to commit the charged sex
crimes. The parallel federal rules are the same.
See
Fed. R. Evid. 413 and
.
Still, the California Supreme Court has long held that admission of
evidence under § 1108(a) does not violate due process so long as trial courts
retain discretion—as they do—to exclude such evidence beforehand under
§ 352 if deemed too prejudicial, confusing, or wasteful (among other
exclusionary considerations).
People v. Rhoades
,
That was not an objectively unreasonable application of clearly
established federal law. After all, faced with the same type of due process
attacks on the comparable federal rules (which both § 1108 and § 1109 were
modeled on), the Ninth Circuit itself has held—just like the California
Supreme Court—that admission of sexual propensity evidence in sex crime
prosecutions (under either Federal Rules 413 or 414) is not unfair when, as
here, the trial court maintains discretion to exclude that evidence (under
Rule 403) if its probative value is substantially outweighed by unfair
prejudice or other countervailing factors.
See LeMay
,
Besides, past sexual misconduct is “indisputably relevant” to whether a
defendant committed current charged sex offenses.
LeMay
, 260 F.3d at
1026. And “introduction of relevant evidence, by itself, cannot amount to a
constitutional violation.”
Id.
“There is, of course, a non-probative aspect to
all evidence of prior crimes or prior criminal conduct.”
United States v.
Bailleaux
,
If nothing else, it was not objectively unreasonable for the court of
appeal to find no due process violation in the admission of uncharged bad
acts given the other procedural safeguards that protected petitioner’s
overarching right to a fair trial. As the court of appeal observed, the trial
court permitted defense counsel to fully cross-examine not only the police
investigator who found the cellphone evidence but also the testifying cousin
who alleged petitioner had sexually abused her as a child. Petitioner does
not claim—nor does anything in the record suggest—that his counsel
performed at all inadequately in this regard or was otherwise unable to
mount a plausible defense. Moreover, the trial court attentively gave
limiting instructions to the jury for both the cellphone evidence and the prior
crimes evidence, telling the jury what permissible inferences they could
draw—and warning them about what impermissible inferences they
must
not
draw.
See
,
e.g.
,
Sullivan
,
E. The Court of Appeal’s Decision Affirming Use of CSAAS Evidence Neither Contradicted Nor Unreasonably Applied Clearly Established Federal Law
Petitioner also cannot meet his burden to show that the court of
appeal’s decision affirming the admission of the expert CSAAS testimony,
which he maintained was inherently unreliable and factually unhelpful,
contradicted or unreasonably applied any clearly established federal law
pronounced by the Supreme Court. “CSAAS describes various emotional
stages, experienced by sexually abused children, that may explain their
sometimes piecemeal and contradictory manner of disclosing abuse.”
Brodit
v. Cambra
,
Even so, petitioner maintains that “the history and development of
CSAAS reveals that it is not scientific, and, therefore, the admission of such
testimony against Petitioner violated his Due Process rights.” (Pet. at 15).
He contends that because “finders of fact—especially lay jurors—afford
particular weight to scientific evidence,” somehow “due process concerns are
only heightened in such context.” (
Id.
). In petitioner’s view, then, use of
“scientific evidence” lacking sufficient “reliability” offends “fundamental
conceptions of justice.” ( at 15–16). Critically missing from these
assertions, however, is any Supreme Court precedent establishing a federal
due process right to exclude scientific expert testimony claimed to be
unreliable. That omission is likely no accident since both state and federal
rules of evidence provide on their own—with no need for a redundant due
process check—robust and enforceable gatekeeping protections against
unreliable expert evidence. Fed. R. Evid. 702;
Daubert v. Merrell Dow
Pharm., Inc.
,
Indeed, to the extent it has addressed the question, the Supreme Court
has disavowed petitioner’s expansive view of the Due Process Clause to
include a constitutional right to exclude unreliable expert evidence. The
Constitution “protects a defendant against a conviction based on evidence of
questionable reliability, not by prohibiting introduction of the evidence, but
by affording the defendant means to persuade the jury that the evidence
should be discounted as unworthy of credit.”
Perry
,
None of this is to imply that the Due Process Clause places no limit on
the introduction of unreliable expert evidence. But it doesn’t do so by
gatekeeping the reliability of expert evidence case-by-case, as the rules of
evidence are intended to do. Instead, it “impedes convictions based on
dubious” evidence with the ultimate “constitutional requirement that the
government prove the defendant’s guilt beyond a reasonable doubt.”
Perry
,
With no governing Supreme Court precedent to the contrary, then, the
court of appeal could not have contradicted clearly established federal law
when it affirmed the admission of the CSAAS testimony.
See Knowles v.
Mirzayance
,
In view of all these countervailing principles undermining petitioner’s
arguments, fairminded jurists could readily agree with the court of appeal
that the use of CSAAS expert testimony to assist the jury here posed no
federal due process concerns.
Sims v. Rowland
,
There, on federal habeas review, the Ninth Circuit held that CSAAS
testimony did not violate the defendant’s due process rights based on a
combination of circumstances also present here: it was offered only to
explain the victims’ delayed disclosures or sometimes contradictory
behaviors; the expert testified without knowledge of that defendant’s
particular case; and the jury received cautionary instructions. 350 F.3d at
991. That is a near mirror image of petitioner’s prosecution: the trial court
permitted CSAAS evidence to help the jury understand the victims’ self-
impeaching conduct including delayed disclosures (1 RT 6–7); the CSAAS
expert interviewed none of the witnesses or knew any specific facts about the
case (1 RT 193, 220); and the trial court instructed the jury that the
testimony could not be used to decide that the victims had been abused,
much less that petitioner was the one who abused them (CT 208). Thus,
given that
Brodit
—and similar recent federal habeas cases,
see
,
e.g.
,
Amaya
v. Frauenheim
,
What’s more, insufficient evidence claims “face a high bar in federal
habeas proceedings because they are subject to two layers of judicial
deference.”
Coleman v. Johnson
,
v. Allen
,
To start, the court of appeal applied the state-law equivalent of the
Jackson
federal standard. (LD 5 at 9 (quoting
People v. Albillar
, 244 P.3d
1062, 1070–71 (Cal. 2010)). So its denial of petitioner’s claims could not
have been contrary to
Jackson
.
See Early
,
In any case, none of petitioner’s arguments shows that the court of
appeal incorrectly—much less unreasonably—applied
Jackson
when it
rejected his insufficient evidence claims on direct review. Start with his
challenge to the sexual penetration conviction. By petitioner’s account, Z.R.
“testified that she did not know if [the alleged penetration] happened,” only
that “she believes it did.” (ECF 10 at 1). That was not enough, according to
petitioner, for the jury to find him guilty of sexual penetration. (Pet. at 11–
13). Looking at the same portion of the victim’s trial testimony (1 RT at
120–23), though, the court of appeal found that if Z.R. was equivocating at
all, the jury could have thought it was only about which movie she had
attended with petitioner, not whether the penetration had happened. (LD 5
at 10). That was hardly an unreasonable conclusion to draw given that the
jury
acquitted
petitioner of the second charged count of sexual penetration—
which required the jury to believe the prosecution’s theory about a second
sexual penetration occurring at a different movie theater. If nothing else, the
jury’s decision to find insufficient evidence of a second penetration suggests
that there was no reason for the court of appeal to doubt that the jurors had
carefully heard, considered, and weighed Z.R.’s testimony.
See
,
e.g.
,
Villery
v. Holland
,
But even if petitioner’s interpretation of her testimony were right—Z.R.
could only say she “believe[d]” the first sexual penetration happened—the
jury was entitled to credit the victim’s belief.
See
,
e.g.
,
Bruce v. Terhune
,
Petitioner’s attack on two of his five lewd act convictions involving Z.R.
fares no better. By his reckoning, Z.R.’s testimony was too generic to
support any more than three lewd act convictions because she couldn’t
identify any more than three—by exact number. (Pet. at 14). But as the
court of appeal recognized, and petitioner does not seriously dispute, Z.R.’s
testimony established the kinds of acts committed (petitioner touched her
near her vagina), and the general period in which most of the acts occurred
(consecutive summers from 2013 to 2016). (1 RT 126–33). And Z.R.
described the frequency of the acts with adequate specificity when she said
that petitioner committed the lewd acts “repeatedly” and “frequently” in a
hot tub at petitioner’s home during four consecutive summer trips there with
her adoptive family. ( at 129–31, 133, 254–58). Under California law,
“nothing more is required” for a jury to reasonably determine the number of
abuse incidents with adequate specificity.
People v. Matute
, 127 Cal. Rptr.
2d 472, 479 (Cal. Ct. App. 2002);
see Jones
,
In the end, contrary to petitioner’s implication, the court of appeal was
under no “affirmative duty to rule out every hypothesis except that of guilt
beyond a reasonable doubt” when deciding petitioner’s sufficiency of
evidence claims.
Jackson
,
Z.R.’s testimony that petitioner spotlights. It doesn’t account for the highly
incriminating—and unchallenged—Instagram messages he exchanged with Z.R., which
convincingly corroborated her testimony. And if anything, the cellphone and prior crimes
evidence could only have reinforced rather than undermined the jury’s findings. It
doesn’t matter that petitioner contested the admission of that evidence—a reviewing
court assessing sufficiency of evidence under
Jackson
still “must consider all of the
evidence admitted by the trial court, regardless of whether that evidence was admitted
erroneously.”
McDaniel
,
fairminded jurists
could
agree with his view that Z.R.’s testimony was too
equivocal or generic to support the challenged convictions. But because not
every fairminded jurist
must
agree with that perspective, petitioner cannot
show that the court of appeal unreasonably applied the (already deferential)
Jackson
standard when rejecting his insufficient evidence claims by that
court’s own fairminded assessment.
See Cavazos
,
III.
CONCLUSION For all these reasons, it is recommended that the petition under 28 U.S.C. § 2254 be denied and that this action be dismissed with prejudice. See 28 U.S.C. § 636; G.O. 05-07.
Dated: March 21, 2025 /s/ ____ STEVE KIM United States Magistrate Judge
Notes
[1] According to a police witness, Z.R. also reported to social services that petitioner committed a sexual penetration or lewd act at a church her adoptive family attended with petitioner. (1 RT 147, 178 – 79, 182 – 85).
[2]
[2] When the grandmother disclosed these posts to Z.R.’s adoptive parents, the mother was “concerned” and “scared,” and the father thought they were “inappropriate.” (2 RT 335 – 36, 342 – 43). The father confronted petitioner about them, but he neither denied nor confirmed sending the messages to Z.R. (2 RT 342 – 43). Such comments were not unusual according to Z.R., who recounted one birthday party of hers when petitioner said that she was “hotter than” his wife and offered to answer sex questions. (1 RT 121, 141).
[3]
[3] Other witnesses too, including Z.R., testified that petitioner had been a large man who often used a cane to walk during the relevant years. (1 RT 172 – 73; 2 RT 291, 310).
[4] According to the cousin (J.P.), petitioner would masturbate in front of her when they were alone. (1 RT 24 – 28). One time, petitioner sat on top of her, causing pain but with no sexual penetration. (1 RT 27). She described another time when petitioner woke her while asleep at his house and performed oral sex. (1 RT 31 – 32). He tried again another night while babysitting at her house, but she screamed until he left her alone. (1 RT 32 – 33). Many years later, petitioner reportedly approached her and said that she has the “sweetest p*ssy” he has ever “tasted.” (1 RT 41). The cousin never reported these incidents sooner because it would have torn their family apart. (1 RT 34 – 35).
[4]
[5] On appeal, he raised only contingent claims of ineffective trial assistance to avoid procedural default in case the court of appeal were to find that he had forfeited his evidentiary claims for lack of objection at trial. (LD 3). But the court of appeal found no such procedural default and addressed petitioner’s claims on their merits. (LD 5).
[5]
[6] Relatedly, petitioner added a cumulative error claim arguing that the combined effect of more than one trial error—even if individually harmless—was prejudicial. (LD 3 at 56).
[7]
[7] Though not introduced at trial, the prosecution proffered the fact of petitioner’s 1984 conviction for indecent exposure when seeking to admit the prior crimes under § 1108. Both state courts credited that proffered fact to reinforce their shared finding that the prior crimes evidence was not too old to introduce just because it was from the late 1970s, since similar conduct continued into the 1980s. (1 RT 4; LD 5 at 25; CT 115).
[9]
[8] Thus, having “assumed” only one possible—but harmless—evidentiary error at most with the admission of the CSAAS testimony, the court of appeal rejected petitioner’s cumulative error claim since there were no multiple trial errors to accumulate. (LD 5 at – 38).
[11]
[9] The court of appeal also mentioned that the jury could have credited the alleged lewd act in church described by police (1 RT 257 – 58), even though Z.R. couldn’t remember that incident or reporting it to social services as police had testified. (LD 5 at 13). As she later conceded on redirect examination, however, Z.R. said that her memory would have been better a year earlier (when she had first talked to social services) before she began “blocking th[o]se events out” afterward to “keep [her] mind off” them. (1 RT 182–83).
[12]
[10] While de novo review is also possible if the decision “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding,” 28 U.S.C. § 2254(d)(2), the first (and only) time petitioner mentions
§ 2254(d)(2) is in his traverse, but even then, only for his insufficiency of evidence claim.
(ECF 10 at 3). Never mind that claims raised that way are generally waived.
Robinson v. Kramer
,
[13]
[11] For instance, because it is a near carbon copy of his appellate briefs, the petition
repeatedly mentions ineffective assistance of counsel as an ostensible basis for habeas
relief. (Pet. at 15, 20, 23, 26 – 27, 31). But those were only “
conditional
claim[s] of
ineffective assistance” raised on appeal in case any of the other underlying claims were
found procedurally defaulted because of untimely defense objection at trial.
Moore v.
Johnson
,
[16]
[12] Before
Andrew
recently clarified that the
Payne
due process principle is not so
“general” as to be incapable of serving as “clearly established federal law” for AEDPA
purposes,
[17]
[13] To this extent, then, petitioner’s evidentiary claims—including his challenge to the
CSAAS evidence—could be summarily dismissed as disguised, unreviewable state law
claims.
Poland v. Stewart
,
[20]
[14] This is not to imply that an “item of evidence” is to be “viewed as an island, with
estimates of its own probative value and unfairly prejudicial risk the sole reference points
in deciding whether the danger substantially outweighs the value.”
Old Chief v. United
States
,
[23]
[15] The other main case he cites,
Brinegar v. United States
,
[16] Separately, petitioner also apparently misapprehends “the history of evidentiary rules regarding a criminal defendant’s sexual propensities,” which “is ambiguous at best,
[26]
[17] California modeled Evidence Code § 1108 (and its companion provision in § 1109 for domestic violence crimes) on similar federal rules approved by Congress years before. See Fed. R. Evid. 413 and 414 . These federal rules likewise exempt sexual assault and child molestation cases from the default propensity rule in Federal Rule 404, which like its California equivalent in § 1101(a), precludes bad character or other bad acts evidence when offered solely to prove a defendant’s propensity to commit crimes. Fed. R. Evid. 404(a), 404(b)(1). As a result, federal prosecutors, too, may offer evidence of prior uncharged sexual misconduct to prove that a defendant committed charged sex offenses with no need to prove a non-propensity purpose under Rule 404(b)(2). Still, just as state courts can exclude sex crimes evidence in their discretion under Evidence Code § 352, federal courts retain discretion to do the same under Rule 403 even if that evidence is facially admissible under either Rule 413 or 414.
[30]
[18] Similarly, while not expressed in constitutional terms, the Supreme Court recently
endorsed expert testimony admitted under the federal rules about “battered woman
syndrome” to address a “number of myths and misconceptions” about domestic violence
victims and to help jurors “better understand how those experiencing it respond to
aggression or react to violence.”
Diaz
,
[39]
[19] As a result, there is no need to address the court’s holding—as reasonable as it was—
that even if the CSAAS testimony were erroneously admitted, it was harmless because
there was no reasonable probability of a different result. Nor is any extended discussion
needed to dispose of petitioner’s “cumulative error” claim. (Pet. at 31–32). The court of
appeal, having “assumed” (not even found) one evidentiary error at most, dispatched that
claim since by definition it requires at least two evidentiary errors to be accumulated.
(LD 5 at 37–38).
See Lopez v. Allen
,
[41]
[20] For the first time in his traverse, petitioner asserts—with no analysis—that the rejection
of his insufficient evidence claims was unreasonable under § 2254(d)(2). (ECF 10 at 3).
Never mind that, as noted, such claims (if not waived) are reviewed under § 2254(d)(1).
Just “tacking on a perfunctory statement at the end of [his] analysis asserting that the
state court’s decision was unreasonable,” as petitioner does here, cannot satisfy his
burden under any part of § 2254(d).
Sexton v. Beaudreaux
,
[44]
[21] And even if the jury were arbitrarily limited to finding only one lewd act for each of four summers, there was evidence of another lewd incident that Z.R. said happened once at church. To be sure, Z.R. denied this incident on cross-examination at trial, but there was still corroboration of the incident by the police investigator who had heard Z.R. closer in time to the alleged lewd act. (1 RT 182 – 83). Thus, fairminded jurists could debate whether the jury could believe that the church incident was a separate (fifth) lewd act that
[46]