Opinion
Case No. 2:22-cv-02811-SB (SK)
2024-04-19
Mario Anguiano BETANCOURT, Petitioner, v. Glen E. PRATT, Respondent.
Maxine Leone Weksler, Maxine Weksler Law Offices, Agoura Hills, CA, for Petitioner. Kristen Joy Inberg, CAAG - Office of Attorney General, Los Angeles, CA, for Respondent.
Maxine Leone Weksler, Maxine Weksler Law Offices, Agoura Hills, CA, for Petitioner. Kristen Joy Inberg, CAAG - Office of Attorney General, Los Angeles, CA, for Respondent.
ORDER ACCEPTING REPORT AND RECOMMENDATION TO DISMISS HABEAS PETITION
STANLEY BLUMENFELD, JR., United States District Judge
Pursuant to 28 U.S.C. § 636, the Court has reviewed the filed Report and Recommendation to Dismiss Habeas Petition and any relevant records if 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, 474 U.S. 140, 154, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
THEREFORE, the Court accepts the Report and Recommendation and orders that the petition under 28 U.S.C. § 2254 be DISMISSED for lack of jurisdiction. Judgment will be entered accordingly dismissing this action with out prejudice.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION TO DISMISS HABEAS PETITION
STEVE KIM, United States Magistrate Judge
I.
Petitioner is a California state prisoner convicted of a forcible lewd act on a child under the age of fourteen. He was sentenced to serve eight years in prison and ordered to pay just over $13,000 in criminal fines and fees. On appeal, petitioner claimed that the evidence was insufficient to prove he had used the degree of force required by California law for an aggravated (rather than just simple) lewd act. He also argued that the financial penalties were improperly imposed without consideration of his ability to pay. Rejecting both claims in the last reasoned state court decision, the California Court of Appeal affirmed petitioner's conviction and sentence, including the collateral fines and fees. Petitioner now seeks habeas relief under 28 U.S.C. § 2254 raising the same two claims. But petitioner's challenge to his conviction ultimately hinges on his preferred interpretation of California criminal law. And his attack on the financial penalties, even if successful, cannot shorten the custodial term of his eight-year sentence. As a result, petitioner's habeas claims should be dismissed because § 2254 neither confers federal jurisdiction over state law questions nor provides a federal basis for relief from the noncustodial consequences of a state criminal judgment.
II.
Petitioner's conviction stems from the molestation of a ten-year-old victim who was then friends with his two young daughters. (9 RT 1518, 1523). According to the victim's trial testimony, petitioner took her to his bedroom, pulled up her shirt and bra, "grabbed [her] by the shoulders," and "sat [her] down" on the bed. (9 RT 1528-31, 1537-39). He then pushed her onto her back and licked and sucked her breasts while holding her shoulders down. (9 RT 1540-42; 10 RT 1707-09). The victim also testified that petitioner's legs were leaning over hers, restricting her legs' movements. (9 RT 1541-42). And when she "tried getting up," he "didn't let [her]" and "put more force" on her shoulders. (10 RT 1709). To escape, the victim said she had to kick petitioner in the stomach with her right leg. (10 RT 1709-10). She then reported the molestation to her parents later that day. (10 RT 1715).
The State of California charged petitioner (as pertinent here) with one count of a forcible lewd act on a child under 14 years of age in violation of California Penal Code § 288(b). (1 CT 65). Later forensic DNA tests revealed a match between petitioner's DNA and that found on the victim's breasts and chest. (12 RT 2365, 2367, 2374, 2377). At trial, among other evidence, the prosecution introduced the victim's testimony as recounted above and the matching DNA evidence. (9 RT 1535-42; 10 RT 1707-15; 12 RT 2365-74). For his part, petitioner disputed (among other things) the victim's account of the degree of force she claimed to have experienced. (13 RT 2723, 2726-27). On the victim's cross-examination, for instance, defense counsel elicited testimony that petitioner was never lying on top of her. (10 RT 1780). And defense counsel pointed out alleged inconsistencies in her account, like when she alternated between saying that petitioner had "laid" her on the bed and stating other times that he had "pushed" her onto the bed. (2 CT 395, 410, 466, 492; 9 RT 1540, 1781).
After the close of evidence, the trial court instructed the jury on the element of force required to convict for a forcible lewd act. Unlike a simple lewd act under § 288(a), an aggravated lewd act under § 288(b) requires proof that the act was committed by "force, violence, duress, menace, or fear of immediate and unlawful bodily injury." Cal. Penal Code § 288(b)(1). In accordance with California law, then, the jury was instructed that to find a lewd act committed by force, the "force used must be substantially different from or substantially greater than the force needed to accomplish the act itself." (1 CT 276; 13 RT 2649). Thus, in closing arguments, defense counsel argued (among other defenses) that the victim's account, even if true, showed petitioner had used no more force than that intrinsic to the lewd act itself, thereby permitting at most a finding of guilt for the lesser-included offense under § 288(a). (13 RT 2709, 2723, 2726-27, 2736). But following deliberations, the jury found petitioner guilty, as charged, of committing a lewd act by force in violation of § 288(b). (1 CT 289; 14 RT 2904-05). Afterward, the trial court sentenced petitioner to eight years in prison. (2 CT 319; 15 RT 3269). And with no objection, the trial court ordered petitioner to pay $13,036.87 in criminal fines and fees, though it did so with no finding of his ability to pay. (2 CT 320, 323; 15 RT 3269-70).
On appeal, petitioner unsuccessfully challenged his conviction and financial penalties. (LD 6). He claimed that his conviction should have been reversed because California law, in petitioner's view, required proof of physical violence or the threat of such violence to establish the "force" element of aggravated lewd conduct. (LD 3 at 39-40). Rejecting that legal interpretation of § 288(b), the California Court of Appeal ruled instead—consistent with nearly all similar state appellate court decisions—that the force element could be met by evidence of restraint that overcomes a victim's resistance. (LD 6 at 6-7). And assessed by that legal standard, the Court of Appeal found that the prosecution's evidence of how petitioner restrained the victim—pushing her onto the bed, holding her down by the shoulders, and placing the weight of his legs over hers—was sufficient for the jury to convict him of committing a lewd act by force. (Id. at 7). As for the financial penalties, petitioner claimed that they violated the excessive fines provision of the Eighth Amendment because there had been no determination that he had the ability to pay. (LD 3 at 51). But the Court of Appeal ruled that he had forfeited that claim by failing to object at sentencing. (LD 6 at 8). The California Supreme Court then summarily denied review, rendering the Court of Appeal's opinion the last reasoned state court decision on petitioner's habeas claims. (LD 8).
III.
A federal court may "entertain an application for a writ of habeas corpus" by a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). To invoke this court's habeas jurisdiction under § 2254, then, petitioner must both allege a violation of federal law and be "in custody" on the claim for which he seeks relief. But petitioner's claim challenging his forcible lewd act conviction falters under the federal-law precondition of § 2254, and his sentencing claim fails by its essential in-custody requirement.
First, petitioner's challenge to his conviction unavoidably turns on a question of state, not federal, law. Petitioner admits as much, insisting that the Court of Appeal here "did not properly apply California law" concerning the force element in § 288(b). (ECF 11 at 13). For in petitioner's view, only "violent force"—that is, "force capable of causing physical pain or injury"—can support a conviction for forcible lewd conduct under § 288(b). (ECF 1-2 at 17). Anything less like "merely holding or restraining a victim," according to petitioner, is legally inadequate to justify a finding of force—contrary to what the Court of Appeal held. (Id. at 15, 20). And based solely on that competing legal interpretation, petitioner maintains that the evidence was at most sufficient to support a simple lewd act conviction under § 288(a). (Id. at 23). In other words, petitioner's challenge to his conviction hinges inescapably on his preferred legal interpretation of a term in California's pertinent penal code. (Id.).
And to press that state-law argument, petitioner relied below—and continues to rely here—mainly on two state "appellate court decisions disagreeing with those upon which the appellate court below [ ] relied." (ECF 11 at 10, 12) (citing People v. Schulz, 2 Cal. App. 4th 999, 3 Cal.Rptr.2d 799 (1992), and People v. Senior, 3 Cal. App. 4th 765, 5 Cal.Rptr.2d 14 (1992)). Those cases, as read by petitioner, purport to support his view that "merely holding or restraining a victim" to overcome resistance is legally inadequate to justify a finding of force. (ECF 11 at 10). But as the Court of Appeal here observed, the cited language from those cases appears to be dicta. (LD 6 at 6). And in any event, the two cases are outliers as no other California state appellate decision (including any by the California Supreme Court) has endorsed that questionable interpretation of force under § 288(b). See, e.g., People v. Aguilar, 41 Cal. App. 5th 1023, 1027, 254 Cal.Rptr.3d 620 (2019) (joining "a chorus of disapproval" of Schulz and Senior). It is thus an understatement to say, as petitioner does, that the meaning of "force" under § 288(b) is merely "unsettled" under California law. (ECF 11 at 13).
Of course, petitioner casts his claim superficially as a federal due process challenge under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). (ECF 1-2 at 16). But while the "minimum amount of evidence that the Due Process Clause requires . . . is purely a matter of federal law," only state law determines "the substantive elements of the criminal offense." Coleman v. Johnson, 566 U.S. 650, 655, 132 S.Ct. 2060, 182 L.Ed.2d 978 (2012). Even for a Jackson claim, then, a "federal court must refer to the substantive elements of the criminal offense as defined by state law and look to state law to determine what evidence is necessary to convict on the crime charged." Rocha v. Jacquez, 2008 WL 624743, at *13 (C.D. Cal. Feb. 29, 2008) (citing Jackson, 443 U.S. at 324 n.16, 99 S.Ct. 2781). And state law is indeed the crux of petitioner's Jackson claim, such as it is. (ECF 1-2 at 20-21; ECF 11 at 13). After all, when judged against the Court of Appeal's (unfavorable) statutory definition of force, he never claims that the prosecution's evidence—construed, as it must be, in the light most favorable to the jury verdict—was insufficient to support his conviction. See McDaniel v. Brown, 558 U.S. 120, 133, 130 S.Ct. 665, 175 L.Ed.2d 582 (2010). It is only by instead measuring that evidence against his own competing (and naturally more favorable) interpretation of the statutory force element that petitioner can profess to be asserting a Jackson claim. Otherwise, if he were compelled to accept that the Court of Appeal's interpretation of force under § 288(b) is correct under state law, petitioner's view of the evidence here could never amount to a colorable Jackson claim under federal law. So even if ostensibly framed in federal due process terms, petitioner's challenge to his conviction invariably rises or falls on a single overriding question of state criminal law.
But federal habeas courts have no jurisdiction to resolve such antecedent substantive state-law disputes even when faced with a Jackson claim. "If a state law issue must be decided in order to decide a federal habeas claim, the state's construction of its own law is binding on the federal court." Horton v. Mayle, 408 F.3d 570, 576 (9th Cir. 2005) (citing Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975)). That is why even a state court's interpretation of state law "announced on direct appeal of the challenged conviction" controls in subsequent federal habeas proceedings attacking the same conviction. Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005). It does not matter that the claim happens to be couched in terms of federal due process when the pivotal issue remains an unreviewable state-law question about the required element in a state criminal statute. See Little v. Crawford, 449 F.3d 1075, 1083 n.6 (9th Cir. 2006). As a result, the Court of Appeal's legal determination about the degree of force needed to convict petitioner of an aggravated lewd act under California law may not be reevaluated—much less overturned—by this court. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). And since petitioner's challenge to the sufficiency of the evidence for his conviction depends solely on a competing interpretation of state law, his claim is unreviewable in federal court. See, e.g., Robinson v. California, 370 U.S. 660, 666, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) ("The instructions of the trial court, implicitly approved on appeal, amounted to a ruling on a question of state law that is as binding on us as though the precise words had been written into the statute.") (cleaned up).
Contrary to petitioner's argument that only a decision by the California Supreme Court can create a binding interpretation of state law in federal habeas proceedings (ECF 11 at 12-13), intermediate state appellate court decisions on state-law interpretations are equally binding on federal habeas courts in the absence of a different controlling interpretation by the state's highest appellate court. See Hicks v. Feiock, 485 U.S. 624, 629-30 & n.3, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988); Shannon v. Newland, 410 F.3d 1083, 1087 (9th Cir. 2005).
Even if he did have a reviewable claim, petitioner would still have to prove that the Court of Appeal's ultimate decision was not merely wrong but amounted to an unreasonable application of Jackson. See 28 U.S.C. § 2254(d)(1); Maquiz v. Hedgpeth, 907 F.3d 1212, 1217 (9th Cir. 2018). That would require a showing that no fairminded jurist could rationally agree with the Court of Appeal's application of the already intrinsically deferential Jackson standard of review. See Cavazos v. Smith, 565 U.S. 1, 2, 132 S.Ct. 2, 181 L.Ed.2d 311 (2011) (per curiam); Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). So given the "double dose of deference" owed to such a decision on federal collateral review, Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011), the odds of petitioner's success on any Jackson claim—even if it were cognizable—would be vanishingly slim. See Herrera v. Collins, 506 U.S. 390, 402, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (success of Jackson claims turns not on "whether the trier of fact made the correct guilt . . . determination, but rather whether it made a rational decision to convict.").
Second, petitioner's sentencing claim also presents an issue for which § 2254 can provide no relief. Habeas jurisdiction under § 2254 depends on "a nexus between the petitioner's claim and the unlawful nature of the custody." Bailey v. Hill, 599 F.3d 976, 980 (9th Cir. 2010). But as petitioner acknowledges, his sentencing claim "does not meet the 'in custody' requirement for federal habeas review." (ECF 11 at 14). It does not matter that, as petitioner maintains, the obligation to pay his criminal fines and fees encumbers his conditions of confinement. (ECF 1-2 at 27-28; ECF 11 at 14-16). What matters for federal habeas jurisdiction is only whether a claim at issue is "directed at the source of the restraint" on an inmate's "liberty." Bailey, 599 F.3d at 981. But criminal fines and fees present no such custodial restraint. See Munoz v. Smith, 17 F.4th 1237, 1245 (9th Cir. 2021). Even if petitioner's financial penalties were eliminated, after all, the eight-year custodial term of his sentence would remain unchanged. Thus, no matter the merits of his challenge to the noncustodial penalties he incurred, petitioner cannot meet the in-custody jurisdictional prerequisite for relief on that claim. See Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir. 1998) (criminal fines are "merely a collateral consequence of conviction" and thus beyond federal habeas relief); see also Douglas v. Jacquez, 626 F.3d 501, 504 (9th Cir. 2010) ("A habeas court has the power to release a prisoner, but has no other power.") (cleaned up).
IV.
For all these reasons, it is recommended that the petition under 28 U.S.C. § 2254 be dismissed for lack of habeas jurisdiction. See 28 U.S.C. § 636; G.O. 05-07.