Opinion
Case No. 5:19-cv-02127-GW (JDE)
01-11-2021
EDUARDO CHE RODRIGUEZ, Petitioner, v. JARED D. LOZANO, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the records and files herein, including the Petition (Dkt. 1), the Answer to the Petition filed by Respondent (Dkt. 10), the Opposition to the Answer filed by Petitioner (Dkt. 12), the Report and Recommendation of the United States Magistrate Judge (Dkt. 14, "R&R"), and the Objection to the R&R filed by Petitioner (Dkt. 17).
Having engaged in a de novo review of those portions of the R&R to which objections have been made, the Court concurs with and accepts the findings and recommendation of the Magistrate Judge. With respect to Petitioner's objections to the R&R's findings as to the co-extensiveness, or lack thereof, of New York and California rape laws on the issue of consent, while it is true that under New York Penal Law 130.05(2)(a), "[l]ack of consent results from: . . . [f]orcible compulsion . . . ," California courts recognize that "[i]n the context of rape, 'against the victim's will' is synonymous with 'without the victim's consent.'" People v. Giardino, 82 Cal. App. 4th 454, 460 (2000) (citations omitted). "Therefore, by specifically referring to intercourse accomplished against the victim's will, [California Penal Code § 261] subdivision[] (a)(2) (force or duress) . . . describe[s] instances in which the victim has not actually consented." Id. Thus, the Court agrees with the R&R's conclusion that, on the issue of consent in rape convictions, the law of New York is coextensive with the law of California for purposes of imposition of a "strike" enhancement for a prior serious or violent felony conviction. See People v. Jenkins, 140 Cal. App. 4th 805, 810 (2006) (as modified); Cal. Pen. Code §§ 667 & 1170.12. However, the Court will grant Petitioner a Certificate of Appealability on the issue by separate Order.
IT IS THEREFORE ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice. Dated: January 11, 2021
/s/_________
GEORGE H. WU
United States District Judge