1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION

11 EDUARDO CHE RODRIGUEZ, ) Case No. 5:19-cv-02127-GW (JDE) 12 ) Petitioner, ) 13 ) ORDER ACCEPTING FINDINGS v. ) AND RECOMMENDATION OF 14 )

JARED D. LOZANO, ) UNITED STATES MAGISTRATE

15 ) JUDGE ) 16 Respondent. ) ) 17 )

18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the records and files 19 herein, including the Petition (Dkt. 1), the Answer to the Petition filed by 20 Respondent (Dkt. 10), the Opposition to the Answer filed by Petitioner (Dkt. 21 12), the Report and Recommendation of the United States Magistrate Judge 22 (Dkt. 14, “R&R”), and the Objection to the R&R filed by Petitioner (Dkt. 17). 23 Having engaged in a de novo review of those portions of the R&R to 24 which objections have been made, the Court concurs with and accepts the 25 findings and recommendation of the Magistrate Judge. With respect to 26 Petitioner’s objections to the R&R’s findings as to the co-extensiveness, or lack 27 thereof, of New York and California rape laws on the issue of consent, while it 28 1 |/is true that under New York Penal Law 130.05(2)(a), “[l]ack of consent results 2 ||from: ... [florcible compulsion .. . ,” California courts recognize that “[i]n the 3 ||context of rape, ‘against the victim’s will’ is synonymous with ‘without the 4 || victim’s consent.’” People v. Giardino, 82 Cal. App. 4th 454, 460 (2000) 5 ||(citations omitted). “Therefore, by specifically referring to intercourse 6 |}accomplished against the victim’s will, [California Penal Code § 261] 7 || subdivision]] (a)(2) (force or duress) . . . describe[s] instances in which the 8 || victim has not actually consented.” Id. Thus, the Court agrees with the R&R’s 9 || conclusion that, on the issue of consent in rape convictions, the law of New 10 || York is coextensive with the law of California for purposes of imposition of a 11 || “strike” enhancement for a prior serious or violent felony conviction. See 12 || People v. Jenkins, 140 Cal. App. 4th 805, 810 (2006) (as modified); Cal. Pen. 13 || Code §§ 667 & 1170.12. However, the Court will grant Petitioner a Certificate 14 ||of Appealability on the issue by separate Order. 15 IT IS THEREFORE ORDERED that Judgment be entered denying the 16 || Petition and dismissing this action with prejudice. 17 18 || Dated: January 11, 2021 19 Afrg. Be 20 GEORGEH.WU tt” 1 United States District Judge 22 23 24 25 26 27 28