Molina v. Jones

1                                                                         
2                                                                         
3                                                                         
4                                                                         
5                  IN THE UNITED STATES DISTRICT COURT                    
6                FOR THE NORTHERN DISTRICT OF CALIFORNIA                  
7                                                                         
8    REMBER GENARO MOLINA,            Case No.  23-cv-02238-CRB           

9              Plaintiff,                                                 

                                      ORDER DENYING PETITION FOR          
10          v.                                                             
                                      WRIT OF HABEAS CORPUS               

11    GENA JONES,                                                          
12              Defendant.                                                 

13        Petitioner Rember Genaro Molina petitions for a writ of habeas corpus, alleging that 
14   the California state court denied him his federal constitutional rights in his 2018 criminal 
15   trial.  For the reasons below, the Court DENIES Molina’s petition.    
16   I.   BACKGROUND                                                       
17        A.   State Court Proceedings                                     
18        In 2018 Molina went to trial on ten counts: one count of sexual intercourse with a 
19   child 10 years of age or younger (Cal. Penal Code § 288.7(a)), one count of sexual 
20   penetration of a child 10 years of age or younger (id. § 288.7(b)), five counts of forcible 
21   lewd or lascivious acts upon a child under 14 years of age (id. § 288(b)(1)), two counts of 
22   attempted sexual penetration of a child 10 years of age or younger (id. §§ 288.7(b), 664), 
23   and one count of continuous sexual abuse of a child under 14 years of age (id. § 288.5(a)).  
24   Clerk’s Tr. Vol. I (dkt. 17-3, Ex. F-1) at 10–19.  The state alleged in four of the 
25   § 288(b)(1) counts and the § 288.5(a) count that Molina had substantial sexual conduct 
26   with the child, R.D.  Id. at 12–19; see also Cal. Penal Code § 1203.066(a)(8). 
27             Trial testimony established that R.D. lived with her mother, 
1             R.D.’s  older  sister  disclosed  to  a  teacher  that  defendant 
              inappropriately touched R.D.  This disclosure led to a police 
2             investigation.  As part of the investigation R.D. was interviewed 
              at  the  county's  Child  Abuse  Listening,  Interviewing,  and 
3             Coordination Center (CALICO).  Transcripts of the interviews 
              were introduced at trial during R.D.’s testimony.           
4                                                                         
              R.D., who was eight years old at the time of the interview, began 
5             by saying that her uncle was really nice to her.  She knew that 
              she was being interviewed because of things her sister had told 
6             the teacher.  She expressed concern that she and her siblings 
              would  be  removed  from  her  parents’  home  because  of  the 
7             disclosures.  She explained that her mother had told her and her 
              sister to talk only to her and that if they said “something wrong,” 
8             they  would  be  taken  away  from  their  family.    After  being 
              reassured by the interviewer that the interviewer was trying to 
9             keep R.D. safe, not remove her from her home, R.D. reported 
              six incidents in which defendant sexually abused her.       
10                                                                         
              The first occasion that R.D. could remember, she and defendant 
11             were “covered up with the blanket” on the bed in the bedroom.  
              Defendant grabbed her shorts and underwear and pulled them  
12             down.  He tried to put his finger inside her but she screamed and 
              her mother and sister came in and defendant left.  Another time, 
13             when she was seven, she awoke to find defendant reaching under 
              her pants and underwear with his hand.  He “tried to go inside 
14             her private part,” but she slapped him and “kicked him out.”  On 
              a  different  occasion  when  she  was  still  seven  years  old, 
15             defendant pulled her pants and underwear off and touched her 
              inside her “private part” with his finger.  She told him to stop 
16             but “he didn't care, he just did it.”  On another occasion, while 
              covered  with  a  blanket  watching  a  movie  on  the  couch, 
17             defendant took his pants and underwear off and dropped her  
              hand on his penis.  On a separate occasion, defendant grabbed 
18             her hand and put it on top of his penis.  It felt “round” and “wet.”  
              She saw defendant “shaking it” and “white stuff started to come 
19             out.”  Finally, on one occasion defendant took his pants and 
              underwear off and stood in front of her as she sat on the couch.  
20             He held her legs up and penetrated her vagina with his penis. 
21             After describing several of the incidents, R.D. also described 
              how either her mother, sister or father was there and stopped the 
22             abuse.  She also reported that she told her mother after several 
              incidents, and her mother ordered defendant out of the house.  
23             Somewhat confusingly, she told the interviewer that after each 
              incident, defendant left and she “never saw him again.”     
24                                                                         
              Shortly after her interview, R.D. spoke with a police investigator 
25             and told the investigator that everything she had reported was 
              not “actually true.”  R.D.’s interview with the police investigator 
26             was recorded and played for the jury.  In the recording, when 
              asked about her descriptions of the incident in which defendant 
27             penetrated her on the couch, R.D. said, “It wasn't true, um, 
              because I made it up.”  When asked why she would make it up, 
1             At trial, R.D., who was then 10 years old, testified that defendant 
              is  her  favorite  uncle  and  that  he  has  never  made  her  feel 
2             uncomfortable or touched her inappropriately.  She claimed not 
              to remember telling the interviewer about the incidents she had 
3             described  previously.    After  the  recording  of  her  CALICO 
              interview was played, R.D. said that she still did not remember 
4             telling the interviewer about the incidents and testified that the 
              incidents did not happen.  She testified that the things she had 
5             said were not true, she was sad that she had said them and that 
              she wished she could take them back.                        
6                                                                         
              R.D.’s parents and older sister all testified that the older sister's 
7             initial report to her teacher was based on a misunderstanding.  
              Defendant had kicked a ball towards R.D., hitting her near her 
8             “private part” so he rubbed the area to make her feel better.  The 
              older sister also testified that she was present when defendant 
9             held R.D.’s hand near his penis.  He and R.D. had been playing 
              and R.D. punched defendant in his penis.  When R.D. went to 
10             hit him again, he covered his penis with his hand.  He was  
              holding her hand but not forcing her to touch him.  R.D.’s  
11             mother testified that her daughters had reported other incidents 
              to her, but explained, “When I talked to them and I asked them, 
12             ‘Are you certain that he really did touch you?’ they finally told 
              me, ‘No, Mom.’  Because, honestly, they lie about many things. 
13             And that's why I asked them again if it was true that he had 
              touched them; and then, after that, they told me, ‘No, Mom.’” 
14                                                                         
              Two  experts  testified  about  the  child  sexual  abuse   
15             accommodation  syndrome  (CSAAS  or  the  syndrome).    The 
              prosecutor's expert testified that the syndrome sets forth several 
16             behaviors commonly observed in children who report abuse that 
              adults might not understand.  She explained that the syndrome 
17             provides a “way of organizing the conversation” about child 
              sexual abuse, but it does not operate “as a checklist to say, ‘Yes, 
18             this kid’s sexually abused or not sexually abused.’”  As relevant 
              here, she testified that sometimes a child might be inconsistent 
19             in relating details of the abuse and might include “implausible 
              or fantastical” details in her report.  Also, a child might disclose 
20             abuse and later recant if the child experiences the consequences 
              of disclosure or if they have “poor maternal support.”      
21                                                                         
              Defendant's expert testified that was based on the initial author's 
22             observations, not empirical evidence, and that, as such, it has no 
              “positive use at all.”  He explained that the behaviors addressed 
23             in the syndrome could be present in a false allegation as well as 
              a true allegation.  He also cited studies that showed that 97 
24             percent of children making true allegations of sexual abuse were 
              consistent in describing the “core” details, 94 percent did not 
25             include  “fantastical”  details,  and  only  4  percent  of  children 
              making  true  allegations  recanted.    He  also  emphasized  that 
26             CSAAS theory was not intended to be “used in courtrooms to  
              try to distinguish true allegations from false allegations” and that 
27             the theory does not have “discriminating power to differentiate 
              true allegations from false allegations.”                   
1   People v. Molina (Molina I), No. A155785, 2021 WL 5822400, at *1–3 (Cal. App. Ct. 
2   Dec. 8, 2021).                                                        
3        At the end of trial, the trial court gave a modified version of CALCRIM No. 1193, 
4   the California model instruction regarding CSAAS testimony, instead of Molina’s 
5   proposed instruction.  The trial court’s instruction was as follows:  
6             You’ve  heard  testimony  from  Dr.  William  O’Donohue  and 
              Miriam Wolfe, a licensed clinical social worker, about child 
7             abuse accommodation theory.                                 
8             Testimony  about  this  syndrome  is  not  evidence  that  the 
              defendant committed any of the crimes charged against him.  
9                                                                         
              You may consider this evidence only in deciding whether or not 
10             [R.D.]’s  conduct  was  not  inconsistent  with  the  conduct  of 
              someone  who  has  been  molested,  and  in  evaluating  the 
11             believability of her testimony.                             
12   Reporter’s Tr. Vol. VIII (dkt. 17-3, Ex. G-8) at 934:19–935:4; Clerk’s Tr. Vol. II at 502.  
13   This language differs from the pattern instruction only in that it replaced “child sexual 
14   abuse accommodation syndrome” with “this syndrome” in the second paragraph.  See 
15   CALCRIM No 1193 (2018).  Molina had proposed an alternative instruction: 
16             A witness has given testimony relating to the child sexual abuse 
              accommodation syndrome.  This evidence is not received and  
17             must not be considered by you as proof that the alleged victim’s 
              molestation claim is true.  Child sexual abuse accommodation 
18             syndrome research is based upon an approach that is completely 
              different from that which you must take to this case.  The  
19             syndrome  research  begins  with  the  assumption  that  a  
              molestation has occurred, and seeks to describe and explain 
20             common  reaction  of  children  to  that  experience.    As 
              distinguished from that research approach, you are to presume 
21             the defendant innocent.  The People have the burden of proving 
              guilt beyond a reasonable doubt.  Thus, you may consider the 
22             evidence concerning the syndrome and its effect only for the 
              limited purpose of showing, if it does, that the alleged victim’s 
23             reaction, as demonstrated by the evidence, are not inconstant 
              with her having been molested.                              
24                                                                         
25   Clerk’s Tr. Vol. I at 159.                                            
26        The jury convicted Molina of the counts under California Penal Code §§ 288.7(a), 
27   288.7(b) (both the attempt counts and the completed offense), and 288.5(a).  Clerk’s Tr. 
1   charges were ultimately reduced to § 288(a) counts of non-forcible lewd acts upon a child 
2   under 14 years, and the jury found Molina guilty of those five counts as well.  Id. at 470, 
3   473, 476, 478, 480.  The jury found true all allegations of substantial sexual conduct.  Id. at 
4   471, 474, 477, 479, 482.                                              
5        Molina appealed his conviction in California state court, which culminated in the 
6   California Supreme Court denying his petition for review on February 16, 2022.  Molina I, 
7   2021 WL 5822400; People v. Molina (Molina II), No. S272603, 2022 Cal. LEXIS 839 
8   (Cal. Feb. 16, 2022).  Molina’s judgment became final 90 days later, when the deadline 
9   passed for him to file a writ of certiorari with the U.S. Supreme Court.  U.S. Sp. Ct. R. 
10   13.1; see also Bowen v. Roe, 188 F.3d 1157, 1158–59 (9th Cir. 1999) (“[T]he period of 
11   ‘direct review’ in 28 U.S.C. § 2244(d)(1)(A) includes the period within which a petitioner 
12   can file a petition for a writ of certiorari from the United States Supreme Court.”). 
13        B.   Federal Court Proceedings                                   
14        Molina then filed a petition for a writ of habeas corpus in federal court on May 8, 
15   2023.  See Pet.  In his petition Molina raised three claims:          
16        (1) The trial court violated his Fifth, Sixth, and Fourteenth Amendment rights by 
17          admitting expert testimony about Child Sexual Abuse Accommodation 
18          Syndrome, or CSAAS.  Id. ¶ 12.                                 
19        (2) The trial court violated his Fourteenth Amendment rights by giving a modified 
20          jury instruction that allowed the jury to consider the CSAAS evidence as proof 
21          of the victim’s truthfulness.  Id. ¶ 16.                       
22        (3) The prosecutor violated his Fourteenth Amendment rights by inducing R.D.’s 
23          false trial testimony that she was not molested in order to introduce recorded 
24          statements that he did, in violation of the Confrontation Clause.  Id. ¶ 20. 
25   Respondent does not dispute that these three claims were timely brought and exhausted in 
26   state court.  See Ans. (dkt. 16) at 12.  Molina later sought to amend his habeas petition to 
27   add two more claims, but the Court found those claims untimely and, therefore, futile.  
1   II.  LEGAL STANDARD                                                   
2        “The writ of habeas corpus stands as a safeguard against imprisonment of those 
3   held in violation of the law.”  Harrington v. Richter, 562 U.S. 86, 91 (2011).  For properly 
4   exhausted claims, “the availability of federal habeas relief is limited with respect to claims 
5   previously ‘adjudicated on the merits’ in state-court proceedings.”  Id. at 92 (quoting 28 
6   U.S.C. § 2254(d).  The Antiterrorism and Effective Death Penalty Act of 1996 requires 
7   that                                                                  
8             [a]n application for a writ of habeas corpus on behalf of a person 
              in custody pursuant to the judgment of a State court shall not be 
9             granted with respect to any claim that was adjudicated on the 
              merits in State court proceedings unless the adjudication of the 
10             claim                                                       
11             (1) Resulted in a decision that was contrary to, or involved an 
              unreasonable application of, clearly established Federal law, as 
12             determined by the Supreme Court of the United States; or    
13             (2) Resulted in a decision that was based on an unreasonable 
              determination of the facts in light of the evidence presented in 
14             the State court proceeding.                                 
15   22 U.S.C. § 2254(d).  Thus, “federal habeas relief functions as a ‘guard against extreme 
16   malfunctions in the state criminal justice systems,’ and not as a means of error correction.”  
17   Greene v. Fisher, 565 U.S. 34, 38 (2011) (citation omitted).  “The question under AEDPA 
18   is not whether a federal court believes the state court’s determination was incorrect but 
19   whether that determination was unreasonable—a substantially higher threshold.”  Schriro 
20   v. Landrigan, 550 U.S. 465, 473 (2007).  Relatedly, federal courts must “presume the 
21   correctness of state courts’ factual findings unless applicants rebut this presumption with 
22   ‘clear and convincing evidence.’”  Id. at 473–74 (quoting 28 U.S.C. § 2254(e)(1)). 
23        AEDPA applies in the same manner “even where there has been a summary denial.”  
24   Cullen v. Pinholster, 563 U.S. 170, 187 (2011).  So when a defendant raises claims in state 
25   postconviction proceedings and state courts deny those claims without explanation, the 
26   claims have nonetheless been “adjudicated on the merits” for purposes of AEDPA.  Id.  
27   When a federal court considers such claims, it “must determine what arguments or theories 
1   fairminded jurists could disagree that those arguments or theories are inconsistent with the 
2   holding in a prior decision” of the U.S. Supreme Court.  Id. at 188 (citation omitted) 
3   (cleaned up).                                                         
4   III.  DISCUSSION                                                      
5        Molina advances three constitutional claims: (1) that the trial court violated his 
6   Fifth, Sixth, and Fourteenth Amendment rights by admitting expert testimony about 
7   CSAAS; (2) that the trial court violated his Fourteenth Amendment rights by giving a 
8   modified jury instruction that allowed the jury to consider the CSAAS evidence as proof of 
9   the victim’s truthfulness; and (3) that the prosecutor violated his Fourteenth Amendment 
10   rights by knowingly presenting victim R.D.’s false statements at trial to introduce evidence 
11   that would otherwise violate the Confrontation Clause.  The Court considers each of these 
12   claims in turn.                                                       
13        A.   Expert CSAAS Testimony                                      
14        The California Court of Appeal affirmed the trial court’s admission of expert 
15   testimony on CSAAS on the basis that it was neither an improper expert opinion nor 
16   unduly prejudicial under California Evidence Code § 352.  Molina I, 2021 WL 5822400, at 
17   *3–4.  Molina argues that the admission of this evidence was a constitutional error, rather 
18   than an evidentiary one, citing decisions from other state courts holding CSAAS evidence 
19   inadmissible.  Mem. ISO Pet. (dkt. 1) at 20–25 (citing Blount v. Commonwealth, 392 
20   S.W.3d 393 (Ky. 2013); State v. J.L.G., 190 A.3d 442 (N.J. 2018); and Commonwealth v. 
21   Dunkle, 602 A.2d 830 (Pa. 1992)).  He therefore contends that the CSAAS evidence was 
22   so unduly prejudicial that it deprived him of his right to a fair trial in violation of the Fifth, 
23   Sixth, and Fourteenth Amendments.                                     
24        But AEDPA restricts habeas relief to instances where a state court ruled contrary to 
25   or using an unreasonable application of “clearly established Federal law, as determined by 
26   the Supreme Court of the United States.”  28 U.S.C. § 2254(d)(1) (emphasis added).  “[I]t 
27   is not an unreasonable application of clearly established Federal law for a state court to 
1   Supreme Court.  Harrington, 562 U.S. at 101; see also Holley v. Yarborough, 568 F.3d 
2   1091, 1101 (9th Cir. 2009) (“Under AEDPA, even clearly erroneous admissions of 
3   evidence that render a trial fundamentally unfair may not permit the grant of federal habeas 
4   corpus relief if not forbidden by ‘clearly established federal law,’ as laid out by the 
5   Supreme Court.” (quoting 28 U.S.C. § 2254(d))).  And the Supreme Court has not drawn 
6   clear lines as to when the admission of arguably prejudicial evidence rises to the level of a 
7   due process violation.  Holley, 568 F.3d at 1101; see also Estelle v. McGuire, 502 U.S. 62, 
8   70 (1991) (finding expert opinion evidence relevant and thereupon declining to decide 
9   whether or when the admission of irrelevant evidence constitutes a due process violation). 
10        This proves fatal to Molina’s first constitutional claim.  Though he cites valid 
11   criticisms of CSAAS evidence—criticisms that have prevailed in a handful of other 
12   states—such criticisms cannot be the basis for habeas relief under AEDPA absent a 
13   decision by the U.S. Supreme Court.  Indeed, the Ninth Circuit and habeas courts across 
14   California have rejected challenges to CSAAS evidence for this very reason.  See Brodit v. 
15   Cambra, 350 F,3d 985, 991 (9th Cir. 2003); see also, e.g., Higgins v. Kernan, No. 18-cv-
16   411-JAK (MAA), 2020 WL 6385810, at *10 (C.D. Cal. Sept. 11, 2020); Noble v. Adams, 
17   06-cv-7114-EMC, 2020 WL 4001479, at *10 (N.D. Cal. 2020); Mendez v. Paramo, EDCV 
18   17-1020-R (JEM), 2019 WL 8643747, at *6 (C.D. Cal. Dec. 31, 2019); Amaya v. 
19   Frauenheim, 823 F. App’x 503, 505 (9th Cir. 2020).  The admission of expert CSAAS 
20   evidence therefore was not contrary to, nor was it an unreasonable application of, federal 
21   law as determined by the U.S. Supreme Court.                          
22        Molina tries to avoid AEDPA deference altogether by asserting that the California 
23   Court of Appeal “overlooked” his federal claims related to the introduction of CSAAS 
24   testimony.  Mem. ISO Pet. at 16–17.  To be sure, Molina is correct that the presumption 
25   that a state court considered the merits of a habeas petitioner’s federal constitutional claims 
26   is a rebuttable one.  Johnson v. Williams, 568 U.S. 289, 301–02 (2013).  If a state court 
27   discusses only state law and the state standard is less protective than, or altogether 
1   and the habeas court can consider the claim without deference.  Id.  But this principle has 
2   no application here.  California Evidence Code § 352 (which the Court of Appeal 
3   considered, see Molina I, 2021 WL 5822400, at *4) prohibits evidence where “its 
4   probative value is substantially outweighed by the probability that its admission will … 
5   create substantial danger of undue prejudice.”  The Due Process Clause, in turn, prohibits 
6   only evidence that “is so extremely unfair that its admission violates fundamental 
7   conceptions of justice.”  Perry v. New Hampshire, 565 U.S. 228, 237 (2012).  These tests 
8   are complimentary, not in tension.  See Perry v. Rushen, 713 F.2d 1447, 1453 (9th Cir. 
9   1983) (“Due process draws a boundary beyond which state rules cannot stray; it does not 
10   displace the law of evidence with a constitutional balancing test.”).  Thus, the California 
11   Court of Appeal reached and rejected, implicitly if not expressly, the merits of this claim. 
12        Molina’s first claim for habeas relief therefore fails.          
13        B.   CALCRIM No. 1193                                            
14        The California Court of Appeal affirmed the trial court’s use of a modified version 
15   of CALCRIM No. 1193 to instruct the jury regarding CSAAS expert testimony, explaining 
16   that the instruction did not improperly tell the jury that they could use CSAAS testimony 
17   as evidence of Molina’s guilt.  Molina I, 2021 WL 5822400, at *4.  Molina argues that the 
18   instruction was improper because it did not expressly warn jurors that the CSAAS 
19   testimony should not be used to decide whether the sexual abuse allegations were true, and 
20   that Respondent cannot prove that the jury did not use the CSAAS testimony for the 
21   improper purpose of determining that the sexual abuse happened.  Mem. ISO Pet. at 27–
22   31.  He thus asserts that the state court deprived him of a fair trial in violation of the 
23   Fourteenth Amendment.                                                 
24        At the outset, the Court is bound by the California Court of Appeal’s determination 
25   that CALCRIM No. 1193 is a correct statement of California law.  See Bradshaw v. 
26   Richey, 546 U.S. 74, 76 (2005) (per curiam) (“[A] state court’s interpretation of state law, 
27   including one announced on direct appeal of the challenged conviction, binds a federal 
1   (1991) (explaining that CSAAS testimony “is admissible to rehabilitate [a] witness’s 
2   credibility when the defendant suggests that the child’s conduct after the incident … is 
3   inconsistent with his or her testimony claiming molestation”).  Federal habeas courts have 
4   repeatedly held as much and denied habeas relief on that ground.  See Matias v. Gipson, 
5   No. 14-cv-526-JD, 2015 WL 5935324, at *17 (N.D. Cal. Oct. 13, 2015); Rodriguez v. 
6   Spearman, No. 12-cv-1923-JKS, 2014 WL 2465945, at *12 (E.D. Cal. May 29, 2014); 
7   Barkley v. Beard, No. 11-1269 CW, 2014 WL 991094, at *7–8 (N.D. Cal. Mar.11, 2014).  
8   Indeed, it is sufficient grounds to deny Molina’s second claim.       
9        Even if there was instructional error, though, federal habeas relief is available for 
10   such an error only where it “by itself so infected the entire trial that the resulting 
11   conviction violates due process.”  Waddington v. Sarausad, 555 U.S. 179, 190–91 (2009) 
12   (quoting Estelle, 502 U.S. at 72).  Thus, the core question is whether there is “‘a 
13   reasonable likelihood’ that the jury applied the instruction in a way that relieved the State 
14   of its burden of proving every element of the crime beyond a reasonable doubt.”  Id. 
15   (quoting Estelle, 502 U.S. at 72).  (Respondent does not have the burden, as Molina 
16   suggests, Mem. ISO Pet. at 30, of proving that the jury did not erroneously apply 
17   CALCRIM No. 1193.)  Courts do not review alleged instructional errors “in artificial 
18   isolation” but rather “in the context of the instructions as a whole and the trial record.”  Id. 
19   at 191 (quoting Estelle, 502 U.S. at 72).                             
20        There was no reasonable likelihood that the jury misapplied CALCRIM No. 1193.  
21   The trial judge instructed the jury on how to evaluate the testimony of expert witnesses and 
22   how to consider evidence that was admitted for a limited purpose.  See Clerk’s Tr. Vol. II 
23   at 499, 501 (instructing the jury on CALCRIM Nos. 332 and 499).  The Court presumes, as 
24   it must, that the jury followed the instructions that it was given.  See Weeks v. Angelone, 
25   528 U.S. 225, 226 (2000).  Molina’s reliance on Patterson v. Gomez, where the Ninth 
26   Circuit affirmed habeas relief based on an erroneous instruction that a criminal defendant 
27   is presumed sane, is unconvincing.  That jury instruction “[told] the jury to presume a 
1   reasonable doubt of an essential element of the crime.”  223 F.3d 959, 965 (9th Cir. 2000).  
2   CALCRIM No. 1193, by contrast, tells the jury that they can use certain expert testimony 
3   for the limited purpose of determining whether another witness is reliable; it does not 
4   create nor suggest any presumption with respect to the State’s burden of proof.  The 
5   California Court of Appeal’s affirmance of the modified version of CALCRIM No. 1193 
6   therefore is not contrary to, nor does it involve an unreasonable application of, federal law. 
7        Once again, Molina argues that the appellate court “overlooked” his federal claim 
8   and ruled only on the state-law issue of whether CALCRIM No. 1193 is correct as a matter 
9   of state law.  Mem. ISO Pet. at 25.  Again, if that were true, it would mean that the Court 
10   owes no deference to the state court’s determinations.  But it is false.  The state court 
11   expressly recognized Molina’s argument that CALCRIM No. 1193 “lessen[s] ‘the 
12   prosecution’s burden of proof in violation of his Fifth, Sixth and Fourteenth Amendment 
13   rights.”  Molina I, 2021 WL 5822400, at *4 (cleaned up).  It then “disagree[d]” with that 
14   argument.  Id.  AEDPA deference is therefore required.                
15        Molina’s second claim for habeas relief therefore fails.         
16        C.   R.D.’s Recorded Testimony                                   
17        The California Court of Appeal affirmed the trial court’s admission of R.D.’s 
18   recorded statements against Molina’s Confrontation Clause and false testimony challenges.  
19   Id. at *5–6.  It explained that the Sixth Amendment “does not bar hearsay statements of a 
20   witness who testifies at trial and is subject to cross-examination” and that the State’s 
21   introduction of allegedly false testimony “in [Molina’s] favor” did not prejudice Molina 
22   because the testimony would have been admitted regardless.  Id.  Molina’s now-familiar 
23   argument that the Court should not defer to the state court’s determination because the 
24   state appellate court “overlooked” his federal claims plainly fails here too; the court clearly 
25   addressed his Confrontation Clause and false testimony claims as just described. 
26        In any event, Molina’s challenges to R.D.’s recorded testimony lack merit.  His 
27   Confrontation Clause argument was rejected in California v. Green, where the U.S. 
1   evidence the prior statements of a witness who concedes making the statements, and who 
2   may be asked to defend or otherwise explain the inconsistency between his prior and his 
3   present version of the events in question, thus opening himself to full cross-examination at 
4   trial as to both stories.”  399 U.S. 149, 164 (1970); accord United States v. Owens, 484 
5   U.S. 554, 560 (1988).  It does not matter whether the witness can, at trial, remember the 
6   events recounted in the earlier statement or even making that statement.  Delaware v. 
7   Fensterer, 474 U.S. 15, 20 (1985) (per curiam); see also Green, 399 U.S. at 188 (Harlan, J., 
8   concurring) (“The fact that the witness, though physically available, cannot recall either 
9   the underlying events that are the subject of an extra-judicial statement or previous 
10   testimony or recollect the circumstances under which the statement was given, does not 
11   have Sixth Amendment consequence.”).  R.D. testified and was subject to extensive cross-
12   examination at trial—including about her earlier recorded statements.  Reporter’s Tr. Vol. 
13   IV (dkt. 17-3, Ex. G-4) at 335:20–339:20; see generally Reporter’s Tr. Vol. III (dkt. 17-3, 
14   Ex. G-3) at 313–28; Reporter’s Tr. Vol. IV at 335–408.  This puts an end to Molina’s 
15   Confrontation Clause argument.                                        
16        Molina’s secondary point—that the State knowingly presented false testimony at 
17   trial when it asked R.D. about the alleged molestation knowing that she would contradict 
18   her earlier statements—fares no better.  Of course, the Due Process Clause prevents 
19   prosecutors from knowingly using false evidence.  Napue v. Illinois, 360 U.S. 264, 269 
20   (1959).  Yet the Court is unaware of any examples where a court has found that the State 
21   violated this principle by inducing allegedly false testimony that, on its face, favors the 
22   defendant—even if a downstream effect of the false testimony is the introduction of other 
23   evidence unfavorable to the defendant.  And either way, as the California Court of Appeal 
24   correctly observed, the introduction of R.D.’s recorded statements was not dependent upon 
25   any alleged false testimony but instead on the simple fact that she testified at trial.  
26   Molina I, 2021 WL 5822400, at *6.  So even if the State knowingly presented false 
27   testimony, it in no way prejudiced Molina.                            
   1  |} IV.    CONCLUSION 
   2          For the foregoing reasons, the Court DENIES Molina’s petition for a writ of habeas 
   3  || corpus.  The Court declines to issue a certificate of availability on any of Molina’s claims. 
   4          IT IS SO ORDERED. 
   5          Dated: July 17, 2025                   Co   A 
                                                 CHARLES R. BREYER 
   6                                              United States District Judge 
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