United States v. 2006-11-07 | 05-16454 | RENDEROS VRYAN | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 VICTOR MANUEL RENDEROS,
Petitioner-Appellant, No. 05-16454
v. D.C. No.
 CV-04-05250-CRBSTUART RYAN, Warden, California
State Prison, Calipatria, OPINION
Respondent-Appellee. 
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
April 5, 2006—San Francisco, California
Filed November 8, 2006
Before: Eugene E. Siler, Jr.,* Johnnie B. Rawlinson, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Siler
*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
18363

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COUNSEL
Anne C. Beles, Robert J. Beles, and Paul McCarthy, Oakland,
California, for the appellant.
Gregg E. Zwycke, Bill Lockyer, Robert R. Anderson, Gerald
Engler, and Peggy S. Ruffra, San Francisco, California, for
the appellee.
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OPINION
SILER, Circuit Judge:
Petitioner Victor Renderos appeals the denial of his petition
for a writ of habeas corpus. Because Renderos identifies no
“clearly established federal law” that was misapplied or vio-
lated by the California Court of Appeal, and does not contend
that there was an unreasonable determination of the facts, we
deny the petition.
I.1
Renderos dated Lisa C. during the early 1990s. She had two
sons, Ryan and Jordan, both of whom were under 14 years
old. Renderos spent a lot of time with Lisa and her sons, and
Ryan thought of Renderos as a father. However, the relation-
ship ended after a few years, sometime in the mid 1990s.
When Ryan was seventeen, he told his mother that
Renderos had sexually molested him. He had not previously
said anything to his mother because the incidents made him
feel “gay” and he feared he would get in trouble. On March
19, 2001, Ryan reported the abuse to the police. One month
later, investigators taped two telephone conversations
between Ryan and Renderos. Ryan asked Renderos whether
he remembered the molestations and asked why Renderos had
molested him. Ryan reminded Renderos about an incident that
had occurred on a canoeing trip and asked why Renderos had
touched him. Renderos at first stated he did not remember the
trip and denied touching Ryan when he was little. Renderos
then stated,
But don’t worry about shit like that, Man. That was
something that, you know, happened a long time ago
1These facts are taken largely from the district court’s recitation of the
California Court of Appeal decision.
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and that you — we just did some playing around,
you know? . . . No big thing.
During the second call, Ryan asked Renderos for advice
about problems which he thought were based upon his past.
Renderos protested,
Hey, come on over, Man. You know . . . things like
that happen. Hey, it was just — you was crazy at the
time. You remember that . . . . You know, you were
crazy and you want to experiment things, you know
and things like that. You’re the one that motivated
the whole thing, you know? Just let the guilt out of
your head.
Ryan further stated he was bothered by Renderos’s act of
“always, like, mak[ing] me put my hand on your penis.”
Renderos replied, “Oh well, you know? You — you wanted
to do that. You know remember? You wanted to.” When
Ryan wondered why this was relevant given that he was only
eight years old then, Renderos claimed: “You were about 12,
Man. You were old, already . . . . I didn’t meet you when you
was eight. You were older than that.” When Ryan again stated
it was not normal for “guys to grab each other’s dicks,”
Renderos replied, “Oh, it’s a — I know. Yeah, I couldn’t fig-
ure out why you want to do it. Remember that?” When Ryan
said he did not really want to do it but Renderos forced his
hand, Renderos replied, “No, you’re . . . the one. You started
out, remember, you wanted to experiment crazy things. You
. . . were always doing crazy things. Remember that?” When
Ryan again said he did not understand why Renderos wanted
Ryan to “try to suck his dick” because it was like Renderos
was using Ryan to get what he wanted, Renderos replied,
Oh, no. Huh-uh. No, no. You got me wrong . . . .
You’re the one that always wanted it. Remember the
way you are, Man. The way you used to be. You
want to do this, you want to do that . . . . I didn’t
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force you into doing anything. You’re the one that
motivated everything. Think about that.
Ryan stated he did not know how he had motivated the sex
because he was too young, to which Renderos replied, “Well,
you knew what you were doing, Bro.”
The remainder of the telephone conversation continued in
the same vein, with Ryan asking Renderos if he remembered
the sexual encounters, and Renderos telling Ryan to forget
about the incidents and inviting Ryan to talk to Renderos
more about the incidents because then they might stop bother-
ing him.
Five days after the telephone conversations, on April 25,
2001, California filed a criminal complaint against Renderos
charging him with various and multiple counts of felony sex
offenses.
At trial, Ryan testified that the incidents began when he
was only eight years old. The first incident occurred during a
canoeing trip on the Russian River. After urinating next to
each other, Renderos took Ryan’s hand, placed it on
Renderos’ penis and told Ryan to keep it there. Ryan with-
drew his hand after a few seconds. The second incident
occurred about two months later. Renderos was at Ryan’s
home for the nightly dinner with the family. After dinner,
Ryan’s mother left the house to attend to her real estate busi-
ness. Ryan was in his bedroom changing his clothes when
Renderos came in. Renderos reached through the opening in
Ryan’s boxer shorts and pulled on Ryan’s penis for a few sec-
onds. Renderos then placed Ryan’s hand on his penis and
instructed Ryan to pleasure him.
The sexual abuse, which Ryan described as “touching,
the[n] me jacking him off,” became more frequent as Ryan
got closer to nine. Ryan testified that it occurred “at least once
every three days.” In addition to the forced masturbation,
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Ryan testified that when he was nine or ten, he was forced to
orally copulate Renderos; and on a few occasions, Renderos
used his finger and once used his penis to penetrate Ryan’s
rectum. Ryan testified that the abuse occurred from the time
he was eight years old until he was eleven.
Renderos testified on his own behalf and denied molesting
Ryan on any occasion. He claimed that he met Ryan’s mother
sometime in 1992 or 1993, and he dated her for three or four
years. He could not recall how old Ryan was when he first
met the boy; he thought Ryan must have been around ten
years old at the time. He testified that although he ate dinner
at their home almost every night, he never inappropriately
touched Ryan. Renderos testified that practically every night
that he was at Lisa’s home, he and Lisa had intimate relations
in her bedroom after the boys went to bed, and that he left at
about 11:00 p.m. He recalled caring for the boys on only five
occasions without their mother.
Renderos explained that his statements during the recorded
telephone calls with Ryan referred to incidents that took place
when Ryan was eleven or twelve years old. On a few occa-
sions, after having sex with Ryan’s mother, Renderos came
out of Lisa’s bedroom to find Ryan outside the bedroom door.
He recalled Ryan once asking coyly, “how do [you] like my
mother’s . . . female part?” Renderos said Ryan would grab
[Renderos’s] penis through his clothes. Renderos told Ryan to
stop touching him and told Lisa about the incidents, suggest-
ing they have intimate relations later in the evening. The inci-
dents happened on five occasions. Renderos claimed all the
statements he made on tape were references to these incidents
instigated by Ryan.
Renderos was found guilty of one count of committing con-
tinuous sexual abuse (during a four-month period when Ryan
was eight years old), one count of oral copulation (when Ryan
was nine or ten years old), one count of sexual penetration
with a foreign object (when Ryan was ten years old), and 23
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counts of committing a lewd act on a child under 14 (each
count covering a one-month interval from September 1, 1992
through July 31, 1994 when Ryan was eight, nine, and ten
years old). Although the statute of limitations had expired
under CAL. PEN. CODE §§ 800 and 801, the jury found that the
prosecution satisfied the predicate requirements under Section
803(g), which made the prosecution timely. The trial court
sentenced Renderos to an aggregate term of 66 years in
prison.
On direct appeal, the California Court of Appeal denied
summary reversal. See People v. Renderos, 114 Cal. App. 4th
961 (Cal. Ct. App. 2003) (partially published). The California
Supreme Court denied review. See People v. Renderos, 2004
Cal. LEXIS 3290 (Cal. April 14, 2004). The district court
denied Renderos’s application for a writ of habeas corpus.
The court issued a Certificate of Appealability (“COA”) on
several grounds: (A) that application of CAL. PEN. CODE
§ 803(g), which extended the statute of limitations for sex
offenses with minors, is a violation of the Ex Post Facto
Clause as declared by the Supreme Court in Stogner v. Cali-
fornia, 539 U.S. 607 (2003); (B) that it was error to hold that
the conditions for invoking section 803(g) could be proven by
a standard lower than “reasonable doubt”; (C) that it violated
due process to admit evidence of Renderos’s other bad acts;
(D) that it was prejudicial prosecutorial misconduct to refer to
stricken testimony by the victim’s mother during closing
argument; (E) that Renderos was prejudiced by trial counsel’s
ineffective assistance; and (F) that there was cumulative error.
II.
This appeal is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254.
Subsection (d) states:
An application for a writ of habeas corpus . . . shall
not be granted with respect to any claim that was
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adjudicated on the merits in State court proceedings
unless the adjudication of the claim—
(1) resulted in a decision that was con-
trary to, or involved an unreasonable appli-
cation of, clearly established federal law, as
determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was based
on an unreasonable determination of the
facts in light of the evidence presented in
the state court proceeding.
To be an “unreasonable” application of Supreme Court pre-
cedent, a state court decision has to be more than merely “er-
roneous,” Lockyer v. Andrade, 538 U.S. 63, 75 (2003); it must
be “objectively unreasonable,” Williams v. Taylor, 529 U.S.
362, 409 (2000). Thus, the object of our inquiry is not to
revisit the merits underlying the conviction, see Coleman v.
Thompson, 501 U.S. 722, 730 (1991), but rather to look to the
highest state court to render a reasoned decision and inquire
whether the conviction was procured in violation of the con-
stitution or federal law, see Avila v. Galaza, 297 F.3d 911,
918 (9th Cir. 2002).
A.
Renderos contends that CAL. PEN. CODE § 803(g) violates
the Ex Post Facto Clause of the United States Constitution.
See U.S. CONST., art. I, § 10 (“No state shall . . . pass any bill
of attainder, ex post facto law, or law impairing the obligation
of contracts . . . .”). The six- and three-year limitations periods
under CAL. PEN. CODE §§ 800 and 801, respectively, each of
which was applicable to certain charges, expired on his case
by early 2001.2 Relying almost exclusively on Stogner, 539
2The limitations periods depend upon the maximum punishments, and
Renderos was charged under different statutes with differing maximum
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U.S. at 614-15, Renderos claims that Section 803(g)3 imper-
missibly revived the limitations period. Section 803(g) states:
(1) Notwithstanding any other limitation of time
described in this chapter, a criminal complaint may
be filed within one year of the date of a report to a
California law enforcement agency by a person of
any age alleging that he or she, while under the age
of 18 years, was the victim of a crime described in
Section 261, 286, 288, 288a, 288.5, 289, or 289.5.
(2) This subdivision applies only if all of the fol-
lowing occur:
(A) The limitation period specified in
Section 800, 801, or 801.1, whichever is
later, has expired.
(B) The crime involved substantial sexual
conduct, as described in subdivision (b) of
Section 1203.066, excluding masturbation
that is not mutual.
(C) There is independent evidence that
corroborates the victim’s allegation. If the
penalties. See CAL. PEN. CODE § 800 (“[P]rosecution for an offense punish-
able by imprisonment in the state prison for eight years or more shall be
commenced within six years after commission of the offense.”); CAL. PEN.
CODE § 801(“[P]rosecution for an offense punishable by imprisonment in
the state prison shall be commenced within three years after commission
of the offense.”). The parties agree that the limitations period under both
provisions had lapsed by the time the criminal complaint was filed.
3This was the applicable subsection numbering at the time. In 2005, and
after litigation commenced, California amended the statute deleting the old
subsection (f) and renumbering the old subsection (g) as subsection (f)
without any substantive alterations. We refer to the statute as the parties
have in its pre-amendment form.
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victim was 21 years of age or older at the
time of the report, the independent evidence
shall clearly and convincingly corroborate
the victim’s allegation.
(3) No evidence may be used to corroborate the
victim’s allegation that otherwise would be inadmis-
sible during trial. Independent evidence does not
include the opinions of mental health professionals.
Thus, Renderos contends, § 803(g) is a violation of the Ex
Post Facto Clause because by its terms, it only applies to
those charges on which the original period under §§ 800 and/
or 801 has lapsed.
The California Court of Appeal, the highest state court to
review this case on the merits, rejected the same argument:
The proviso that the subsection does not apply unless
the statute of limitations has expired in section 800
or 801, “obviously ensures that the one-year period
in section 803(g)(1) does not override or otherwise
conflict with sections 800 or 801 where [the victim]
reports the crime to a qualifying law enforcement
agency before the three-year or six-year period set
forth in the latter provisions ‘has expired.’ In this
way, the limitations period in Section 803(g) — like
other ‘tolling’ and ‘extension’ provisions in the same
statute — serves to prolong, rather than shorten, the
time in which a felony child molestation prosecution
may be commenced.” (People v. Frazer, [21 Cal.4th
737, 752 (1999)]).
. . . .
That the People could not prosecute an action until
a report was filed by the victim . . . does not support
Renderos’s contention [that] the statute as applied to
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him had the effect of “reviving” a prosecution barred
by the statute of limitations. Because the statute of
limitations under section 800 had not expired when
section 803(g) became effective on January 1, 1994,
section 803(g) permitted the People to commence
prosecution for the offenses within one year after the
filing of Ryan’s report, notwithstanding the limita-
tion period in section 800.
Renderos, 114 Cal. App. 4th at 966 (footnote omitted). The
California Court of Appeal did not misapply Stogner, nor any
other clearly established Supreme Court precedent prohibiting
ex post facto laws.
[1] First, Stogner is materially distinct from the case before
us. There, the Supreme Court addressed whether a different
provision, CAL. PEN. CODE § 803(g)(3)(A) (1996), violated the
U.S. Constitution’s ban on ex post facto laws. Stogner was
charged in 1998 for sex-related acts with minors that alleg-
edly occurred between 1955 and 1973. See 539 U.S. at 609.
The statutes of limitations under §§ 800 and 801 which also
covered those charges had long since run. Id. at 610. In 1994,
California enacted CAL. PEN. CODE § 803(g), and a 1996
amendment — now repealed per Stogner — provided that sat-
isfaction of the conditions in § 803(g)(2) “shall revive any
cause of action barred by [prior statutes of limitations].” CAL.
PEN. CODE § 803(g)(3)(A) (1996) (alteration omitted).
[2] The Supreme Court found the law unconstitutional,
holding that a statute enacted after the expiration of a statute
of limitations and that revives prosecution is a classic ex post
facto law and is no different from a statute that authorizes
punishment for an act that was not illegal at the time it was
committed. Stogner, 539 U.S. at 614-15. The Court also held
that the case represented another type of Ex Post Facto Clause
violation where there is a reduction in the quantum of proof
necessary to convict, observing that “a statute of limitations
reflects a legislative judgment that, after a certain time, no
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quantum of evidence is sufficient to convict.” Id. at 615 (cit-
ing United States v. Marion, 404 U.S. 307, 322 (1971)). How-
ever, the critical element in both of these holdings was the
fact that the amendment in question became effective after the
statute of limitations had already expired. Stogner, 539 U.S.
at 618-19. The Court observed that the evils sought to be
avoided by the Ex Post Facto Clause were visited upon
Stogner because he went years under the belief that he would
not be prosecuted, and there was an irrebuttable presumption
that one is prejudiced under such a belief. See id. at 611.
[3] Here, § 803(g) was enacted while the limitations peri-
ods were still running on the claims against Renderos. This is,
therefore, precisely the type of statute that Stogner expressly
stated it was not striking down. See id. at 618-19. Renderos
identifies no other case on point. Therefore, we cannot con-
clude that the California Court of Appeal’s determination was
“contrary to or an unreasonable application of clearly estab-
lished federal law, as determined by the Supreme Court of the
United States. . . .” 28 U.S.C. § 2254.
[4] Furthermore, Renderos’s canonical invocations of
Stogner’s verbiage are equivocal and unavailing. He essen-
tially argues that had § 803(g) directly extended — or even
abolished — the limitations periods in §§ 800 and 801, then
it would not have run afoul of the Constitution, but that
because it is a different limitations period that is triggered
once the other periods expire, it amounts to a revival statute
of the type criticized by the Supreme Court. However, con-
trary to Renderos’s mistaken belief, § 803(g) seamlessly,
albeit conditionally, extends the statute of limitations immedi-
ately upon expiration of the other periods. Thus, there is never
a period in which a putative defendant is subject to “punish-
ment[ ], where [he] was not, by law, liable to any,” Stogner,
539 U.S. at 612 (quoting Calder v. Bull, 3 U.S. 386, 389
(1798)), until one year after the victim files a report with the
proper authorities. The fact that the extension is conditional
is a distinction without a relevant difference. Subsections
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803(g)(2)(A)-(C) state conditions that must be satisfied by the
prosecution before extending the limitations period. These,
therefore, inure to a defendant’s benefit by shielding him
against potentially arbitrary prosecutions that the victim has
not supported and against accusations supported by flimsy,
stale, or uncorroborated evidence. See CAL. PEN. CODE
§ 803(g)(2)(A)-(C).
[5] Finally, the application of § 803(g) to this case does not
“threaten[ ] the kind of harm that . . . the Ex Post Facto Clause
seeks to avoid.” Stogner, 539 U.S. at 611. There is no mani-
fest injustice here because there was no “retroactive effect,”
as the original limitations period had not yet expired. Id. For
the same reason, Renderos cannot claim prejudice as he never
became “safe from . . . pursuit” because he had notice and
“fair warning” that even though the three- and six-year limita-
tions periods would soon expire, he could still be prosecuted
under § 803(g). Id. (quoting Falter v. United States, 23 F.2d
420, 426 (2d Cir. 1928), cert. denied, 277 U.S. 590)).
[6] Therefore, we cannot conclude that the Court of Appeal
misapplied clearly established Supreme Court precedent.
B.
Renderos claims that the jury should have been required to
find beyond a reasonable doubt the conditions for triggering
the extension under §§ 803(g)(2)(A)-(C). The trial court
charged the jury with finding guilt beyond a reasonable doubt,
but instructed the jury that after it found guilt, it had to find
by clear and convincing evidence the elements of
§§ 803(g)(2)(A)-(C). Renderos argues that because California
courts have treated statutes of limitations as elements of the
offense, they have to be proven beyond a reasonable doubt.
In rejecting this claim, the California Court of Appeal held:
Renderos’s argument is based upon the premise that
because a defendant cannot be convicted of an
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offense that is time-barred, the statute of limitations
is an “element of the offense” that needs to be
proved beyond a reasonable doubt. Concededly, the
courts have described the statute of limitations as
part of the People’s case to plead and prove as any
other “element” of the offense . . . . However, our
Supreme Court has consistently held the prosecution
is required to prove any factual allegations regarding
the statute of limitations only by a preponderance of
the evidence in the absence of any other standard set
by the legislature.
We reject Renderos’s contention that prevailing
federal constitutional law concerning the burden of
proof in criminal cases requires us to now declare
the factual allegations concerning the statute of limi-
tations should be deemed an element of the offense
that must be established beyond a reasonable doubt.
“[T]he Due Process Clause requires the prosecution
to prove beyond a reasonable doubt all of the ele-
ments included in the definition of an offense of
which the defendant is charged.” (Patterson v. New
York (1977) 432 U.S. 197, 210). In Apprendi v. New
Jersey (2000) 530 U.S. 466, 476, 490, the United
States Supreme Court also held the federal constitu-
tion requires the prosecution to prove beyond a rea-
sonable doubt any fact, other than a prior conviction,
that increases the maximum punishment for the
offense. However, no United States Supreme Court
or lower federal court case holds, as a matter of fed-
eral constitutional law, that the timeliness of a crimi-
nal prosecution must be proved beyond a reasonable
doubt.
Renderos, No. 097873, Calif. Ct. of Appeal, Dec. 30, 2003,
pp.16-17 (unpublished) (some citations omitted).
Here, the Court of Appeal did not err. Renderos fails to
identify any Supreme Court precedent clearly establishing
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that statutes of limitations must be proven beyond a reason-
able doubt. In fact, he concedes that no such case exists.
Rather he relies on In re Winship, 397 U.S. 358 (1970), for
the proposition that any fact predicate to a conviction must be
proven beyond a reasonable doubt. However, we do not read
In Re Winship so broadly. Though every element of the crime
must be proven beyond a reasonable doubt to convict, not
every predicate to a conviction is an element of the crime.
[7] In In Re Winship, the Supreme Court confronted the
question of the quantum of proof necessary for the conviction
of a juvenile offender in juvenile court. The Court observed
that “[d]ue process commands that no man shall lose his lib-
erty unless the Government has borne the burden of [proof]
. . . . It is critical that the moral force of the criminal law not
be diluted by a standard of proof that leaves people in doubt
whether innocent men are being condemned.” 397 U.S. at 364
(citations omitted). The Court then held, “Lest there [be] any
doubt about the constitutional stature of the reasonable-doubt
standard, we explicitly hold that the due process clause pro-
tects the accused against conviction except upon proof beyond
a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.” Id.
[8] The findings necessary to trigger § 803(g) do not fall
within the due process penumbra expounded in In Re Win-
ship, and no subsequent case has so expanded it. Section
803(g) does not define a crime, and §§ 803(g)(2)(A)-(C) do
not prescribe facts that “constitute the crime.” 397 U.S. at
364. “Section 803(g) regulates the time at which child sexual
abuse defined and punished elsewhere in the Penal Code may
be charged.” Frazer, 21 Cal. 4th at 760 (italics in original)
overruled on other grounds by Stogner, 539 U.S. at 611.
Directly on point is United States v. Gonsalves, 675 F.2d
1050, 1054 (9th Cir. 1982). There, we addressed the appropri-
ate standard of proof for the tolling provision in 18 U.S.C.
§ 3290, a statute applicable to persons fleeing the commission
of a crime. Id. at 1052. Holding that the preponderance stan-
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dard was the appropriate one, we observed that even though
proving the factual element of the provision was necessary to
convict, “[a] major reason for adhering to the ‘reasonable
doubt’ standard is absent . . . when the evidence offered to
prove a defense is unrelated to the issue of guilt.” Id. at 1054.
Thus, while the elements of §§ 803(g)(2)(A)-(C) were neces-
sary to convicting Renderos, they did not need to be proven
beyond a reasonable doubt because they did not bear upon his
guilt vis-a-vis his innocence, such that there was the risk of
an “innocent [man] . . . being condemned.” See In Re Win-
ship, 397 U.S. at 364.
[9] Therefore, the California Court of Appeal was not
objectively unreasonable in its application of Supreme Court
due process law in rejecting Renderos’s claim.
C.
During trial, the court admitted evidence of Renderos’s
statement to Ryan wherein Renderos attempted to have Ryan
secure him a young girl for a sexual encounter.4 Renderos
4The relevant portion of the transcript reads:
[Renderos] Q: Hey, do you know any — any ho’s [sic] Man? Fix
me up.
[Ryan] A: No, I don’t know no ho’s.
Q: Fix me up, Man.
A: I’ll see what I can do.
Q: Fix me up.
A: I’ll see what I can do.
Q: Something nice, and about 18, you know?
A: Yeah.
Q: I can, you know, legal.
[Ryan] Q: You don’t want ‘em younger, maybe?
A: Well I don’t know. Am I — Oh, you know? Never know.
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claims that these statements were the only ones admitted for
“corroboration” as required in Section 803(g), but were preju-
dicial because they showed “propensity.” He also claims it
was error to fail to give a limiting instruction once the evi-
dence was admitted.
The trial court rejected defense counsel’s objections, stating
“In reading so far the areas of objection, especially page thir-
teen, I think it goes far to describe the relationship between
the alleged victim and defendant. And I think it is relevant to
the charges.”
The California Court of Appeal held:
Initially, we note that in seeking to exclude this por-
tion of the transcript, appellant did not raise any
“propensity” argument nor did he request the trial
court to caution the jury on the use of the evidence.
(See People v. Bolin (1998) 18 Cal. 4th 297, 327-328
[trial court has no sua sponte duty to instruct the jury
as to the use of other crimes evidence].) In any
event, we need not address whether the trial court
should have allowed into evidence the challenged
part of the tape. Assuming for the sake of argument
that the trial court should have excluded the chal-
lenged evidence, the error was harmless beyond a
reasonable doubt. The prejudicial effect of the evi-
Q: All right.
[Renderos] Q: See what you can do, Man.
[Ryan] A: All right.
Q: You know I like my pussy, Bubba.
A: All right.
Q: Whenever you want to talk. Whenever you have problems,
call me, Man. Call me.
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dence was minimal given that it “was no stronger
and no more inflammatory than the [evidence] con-
cerning the charged offenses.” (People v. Ewoldt
(1994) 7 Cal. 4th 380, 405.) It is unlikely the “jury
might [have] doubted that [Renderos] committed the
charged offenses but convicted anyway because of a
belief he committed [any] uncharged crimes.” (cita-
tion omitted.). Accordingly, reversal on this basis is
not warranted.
Renderos, p. 23.
[10] Renderos’s principal objection to this holding is that
it does not address the due process claim and that the inclu-
sion of the transcript altered the jury’s perception of his credi-
bility. We disagree. A successful petition for collateral relief
rooted in a claim of trial error must demonstrate actual preju-
dice, that is, a “substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson, 507
U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328
U.S. 750, 758 (1946)). Renderos neither establishes that the
evidence had a “substantial” effect on the jury nor proves how
excluding the challenged portion would have detracted from
the damning — and unchallenged — admissions contained in
the balance of the transcripts. Cf. Parle v. Runnels, 387 F.3d
1030, 1045 (9th Cir. 2004) (concluding that erroneous admis-
sion of evidence of victim’s violent character was harmless
because defendant could not show a substantial influence on
the jury’s verdict). Furthermore, the challenged transcript is
ambiguous in that Renderos did not accept Ryan’s offer of a
girl under 18, and Renderos said he wanted something
“legal.”
[11] Therefore, the Court of Appeal did not err in holding
that there was no constitutional violation.
D.
Renderos contends that he was prejudiced by the testimony
of the victim’s mother, and the trial prosecutor’s subsequent
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reference to the statement during closing. The transcript reads
in relevant portion:
Q: What kind of relationship did you have with
your son, Ryan?
A: Ryan had some signs of dysfunction. There was
no doubt. He had some anger issues. I took
Ryan to see psychologists. I took him to psychi-
atrists . . . . I didn’t know what the problem was
with Ryan . . . . [¶] He’s never been in trouble
outside of our home. Everything has always
been centered in our home. He would get angry,
punch the door, hit the wall, things like this. I
didn’t know why.
Q: You are saying this all occurred approximately
around 1992?
A: No. It started a little time later . . . . [¶] It started
later.
Q: It’s fair to say that this type of behavior was
never present in Ryan before?
A: No.
Q: 1992?
A: No, both of my boys, and I say both of my boys
have had problems, both of my boys have been
molested.
The trial court sustained a motion to strike and instructed
the jury to disregard the last sentence. The prosecutor then
referred to this testimony during her closing argument to the
jury:
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I think what you saw from [victim’s mother] was
some really righteous emotion on the witness stand.
She was upset . . . . What she said, you know, was
emotional. I don’t think you can read that to say she
was somehow making these things up to help the
case along. . . . When we are talking about, you
know, credibility, you can look at the witness’
demeanor while they are testifying. You can look at
Lisa . . . what she did, what she said, her emotions.
The Court of Appeal rejected Renderos’s argument that the
testimony and the later reference constituted prosecutorial
misconduct:
The record does not contain any evidence that the
prosecutor knew or should have known Lisa was
going to mention both her sons had been molested.
Moreover, the trial court directed the jury to disre-
gard the testimony, and we assume the jury followed
that instruction. (People v. Sanchez (2001) 26 Cal.
4th 834, 852.) Further, Renderos did not object or
request any cautionary instruction regarding either
Lisa’s conduct or the prosecutor’s references to the
emotional nature of Lisa’s conduct on the witness
stand. In any event, to the extent any of the chal-
lenged comments were erroneous or inappropriate, it
is not reasonably probable a different result would
have been reached in the absence of those remarks.
(People v. Watson (1956) 46 Cal. 2d 818, 835.)
Renderos, p. 25.
On a petition for a writ of habeas corpus, the standard of
review for a claim of prosecutorial misconduct is “the narrow
one of due process, and not the broad exercise of supervisory
power.” Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(quoting Donnolly v. DeChristoforo, 416 U.S. 637, 642
(1974)). Thus, to succeed, Renderos must demonstrate that it
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“so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Donnolly, 416 U.S. at
643.
[12] Renderos claims that under People v. Bentley, 131 Cal.
App. 2d 687, 690 (Cal. Ct. App. 1955) overruled on other
grounds by People v. White, 50 Cal. 2d 428 (1958), the prose-
cution had the affirmative duty to ensure that its witnesses did
not volunteer inadmissible statements. However, in Bentley,
in response to a question on direct examination, a police offi-
cer testified that he had questioned the defendant in a previous
child molestation case. Id. at 689. Here, the statement was
elicited by defense counsel during cross examination. Further-
more, the testimony does not engender the degree of prejudice
at issue in Bently. Lisa C. never stated she thought Renderos
had molested her other son, and in any event the court gave
an instruction to disregard the statement to which Renderos
neither objected nor sought a stronger admonition. See Ken-
nedy v. Lockyer, 379 F.3d 1041, 1061 n.3 (9th Cir. 2004)
(juries are presumed to have followed court’s instruction).
During the closing, the prosecutor merely referred to the emo-
tion of Lisa’s testimony and did not repeat that both of her
sons had been molested. Given the telephone transcripts,
which are more likely than not the principal basis upon which
Renderos was convicted, the mere erroneous inclusion of
inconsequential statements is insufficient to demonstrate that
it “so infected the trial with unfairness as to make the result-
ing conviction a denial of due process.” Donnelly, 416 U.S.
at 643.
E.
Renderos claims that trial counsel was ineffective and his
errors prejudicial. However, there was no attempt to set forth
the legal standards for such a challenge nor an attempt to meet
them. We therefore deem the issue waived. See Acosta-
Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1993).
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F.
Renderos contends that the errors should be considered
cumulatively and not individually. However, the only issue
identified above that might have been erroneous but deemed
not prejudicial is the admission of the testimony of
Renderos’s solicitation of Ryan to procure a young girl for
sex. None of the other errors identified in the brief was dis-
posed of solely on the grounds of failure to prove prejudice.
Even assuming that Lisa’s testimony should have been
stricken, Renderos does not argue how those two errors, even
considered together, overcome the cumulative weight of the
balance of the evidence against him.
III.
Thus, the California Court of Appeal’s denial of relief was
neither contrary to, nor an unreasonable application of, clearly
established Supreme Court precedent in holding that CAL.
PEN. CODE § 803(g) was not a violation of the Ex Post Facto
Clause under Stogner, nor in any of the other assignments of
error. We also deny Renderos’s request to expand the COA
to include uncertified claims.
AFFIRMED.
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