1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DANIEL SAAVEDRA, Case No. 2:22-cv-06685-MEMF (GJS) 12 Petitioner, ORDER ACCEPTING FINDINGS AND 13 v. RECOMMENDATIONS OF UNITED

STATES MAGISTRATE JUDGE

14 RON GODWIN, Warden, 15 Respondent. 16 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records 19 on file, and the Report and Recommendation (“Report”) of the United States 20 Magistrate Judge. Further, the Court has engaged in a de novo review of those 21 portions of the Report to which objections have been made. 22 The Report recommends the denial of habeas relief for Petitioner’s claims 23 challenging his convictions for sexual abuse of his daughters. (Dkt. No. 17.) For 24 the following reasons, Petitioner’s Objections to the Report (Dkt. No. 21) do not 25 warrant a change to the Magistrate Judge’s findings or recommendation. 26 Petitioner objects that the evidence was insufficient to sustain his 27 convictions. (Dkt. No. 21 at 2-4.) He argues that the victims’ testimony was 28 “patently unreliable, inconsistent, contradictory, and uncredible” and “failed to 1 demonstrate the kind of acts that supposedly occurred with sufficient specificity, 2 the supposed number of acts committed, or the general time period in which the 3 acts supposedly occurred.” (Id. at 3.) And in his Petition, he repeatedly described 4 the testimony as “improbable and beyond belief.” (Dkt. No. 1 at 49.) But as the 5 Report stated, the Court has no license to reevaluate the jury’s credibility 6 assessments of the witnesses. (Dkt. No. 17 at 6.) And as the Report further stated, 7 under California law, “prosecutions for child abuse must sometimes be based on 8 generic testimony.” (Dkt. No. 17 at 5.) The Ninth Circuit has rejected the 9 argument that California law permitting generic testimony from child abuse victims 10 violates federal due process. Brodit v. Cambra, 350 F.3d 985, 988-89 (9th Cir. 11 2003). 12 Petitioner objects that the amendment of the charges during trial violated his 13 right to sufficient notice.1 (Dkt. No. 21 at 4-9.) He argues that “it is the 14 information which the United States Supreme Court holds is the operative 15 instrument that must adequately inform a criminal defendant of the allegations 16 against him or her.” (Id. at 4.) To the contrary, “when a defendant has argued that 17 he received insufficient notice of a particular theory of the case — a court can 18 examine sources other than the information for evidence that the defendant did 19 receive adequate notice.” Gautt v. Lewis, 489 F.3d 993, 1009 (9th Cir. 2007). Such 20 sources may include, as the Report stated, the testimony of the witnesses at the 21 preliminary hearing and at trial. (Dkt. No. 17 at 10.) In this case, this was largely 22 revealed at the preliminary hearing, well before trial, so Petitioner’s argument that 23 he was required to “prepare his defense during trial testimony” (Dkt. No. 21 at 4 24 (emphasis added)) is belied by the record. 25 26 1 The Court notes that although the Court of Appeals decision cites to Penal Code Section 228 as 27 the relevant statutory provision for lewd act on a child, it appears that the correct citation is Penal 28 Code 288 as reflected in the charging document and jury instructions given. (Dkt. No. 12-1 at 94, 1 Petitioner relatedly objects, as to his sufficient notice claim, that he did not 2 forfeit this claim by failing to raise this argument in a contemporaneous objection at 3 trial. (Dkt. No. 21 at 5.) Petitioner argues that the contemporaneous-objection rule 4 is not adequate as a procedural default because it is not “clear, consistently applied, 5 and well-established.” (Id. at 6.) To the contrary, the contemporaneous-objection 6 rule is adequate. Fairbank v. Ayers, 650 F.3d 1243, 1256 (9th Cir. 2011). 7 Petitioner’s citations to exceptions, from cases where the rule was not applied (Dkt. 8 No. 21 at 7), do not demonstrate inadequacy. See Johnson v. Lee, 578 U.S. 605, 9 608-09 (2016) (per curiam) (rejecting argument that nine cases where the Dixon 10 rule was not applied established the rule’s inadequacy). Moreover, Petitioner’s 11 argument that he is excused from the procedural default because of his actual 12 innocence (Dkt. No. 21 at 8) fails because he has not identified any new evidence of 13 actual innocence. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (“[S]uch a claim 14 requires petitioner to support his allegations of constitutional error with new 15 reliable evidence—whether it be exculpatory scientific evidence, trustworthy 16 eyewitness accounts, or critical physical evidence—that was not presented at 17 trial.”). 18 Although Petitioner argues that “had the allegations been sufficiently pled,” 19 he would have been able to present “extrinsic evidence of his lack of opportunity to 20 commit the crimes,” he has not explained how that would be the case, given that the 21 conduct was within the time frames contemplated in the charging document and 22 preliminary hearing and the amended charges concerned the same conduct or acts. 23 This argument fails.2

24 2 A review of the jury instructions setting forth the elements confirms not just that the amended 25 charges were of less serious conduct, but more importantly that the amended charges were mostly of lesser conduct that Petitioner necessarily had notice of because it was largely encompassed by 26 the original charges. For instance, the charge in Count 5, continuous sexual abuse in violation of Penal Code 288.5, was replaced with Count 7, lewd act on a child in violation of Penal Code 288, 27 for the same act testified to. The jury instructions reflect that nothing greater was required to be 28 proven. Compare CALCRIM 1120 (jury instruction for continuous sexual abuse which requires 1 Petitioner objects that he was denied the right to present a defense by the 2 || exclusion of evidence of his erectile dysfunction, which would have established he 3 || did not sexually abuse his daughters. (Dkt. No. 21 at 9-10.) Petitioner argues that 4 || evidence of his erectile dysfunction rendered the victims’ testimony “a factual 5 || impossibility.” (Ud. at 10.) To the contrary, as the Report stated, the state court 6 || determined that Petitioner’s ability to maintain an erection was unrelated to the 7 || elements of the charged offenses and “tangential to the issue of whether he sexually 8 || molested his daughters.” (Dkt. No. 17 at 12.) No witness testified to an erection 9 || (Dkt. No. 12-8 at 46); what the witnesses testified to was possible (and believed by 10 || the jury) regardless of any alleged erectile dysfunction. 11 12 ORDER 13 IT IS ORDERED that (1) the Report and Recommendation of the Magistrate 14 || Judge is accepted and adopted; and (2) Judgment shall be entered denying the 15 || Petition and dismissing this action with prejudice. 16 17 || DATED: January 16, 2025 18 Mf 19 20 MAAME EWUSI-MENSAH FRIMPONG

UNITED STATES DISTRICT JUDGE

21 22 23 24 25 || the charge in Count 6, aggravated sexual assault in violation of Penal Code 269(a)(5) and 289(a), was replaced with Count 8, lewd act on a child, concerning the same conduct. The jury instructions 26 similarly show no greater proof needed. Compare CALCRIM 1123 (jury instruction for aggravated 27 sexual assault) and CALCRIM 289 Gury instruction for sexual penetration, requiring penetration for the purpose of sexual arousal, gratification, or abuse) with CALCRIM 1110 Gury instruction 2g || for lewd act on a child with the intent of arousal, or gratification, or appealing to lust, passions, or sexual desires).