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Maciel v. Ylst

*fn* submitted: September 20, 1993.

JAMES D. MACIEL, PETITIONER-APPELLANT,
v.
EDDIE YLST, WARDEN; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, RESPONDENTS-APPELLEES.



Appeal from the United States District Court for the Central District of California. D.C. No. CV-90-0428-AHS. Alicemarie H. Stotler, District Judge, Presiding

Before: Fletcher, Poole, and O'scannlain, Circuit Judges.

MEMORANDUM

James Dario Maciel, a California state prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. Finding that Maciel's claims were without merit, the district court denied Maciel's petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

We review de novo the district court's denial of a petition for habeas corpus. Thomas v. Lewis, 945 F.2d 1119, 1122 (9th Cir. 1991). Factual findings by state trial and appellate courts are presumed to be correct, pursuant to 28 U.S.C. § 2254(d), unless one of the eight exceptions enumerated in section 2254(d) applies. See Sumner v. Mata, 449 U.S. 539, 546-47 (1981); Palmer v. Estelle, 985 F.2d 456, 458 (9th Cir.), cert. denied, 113. S. Ct. 3051 (1993).

Background

Maciel was convicted, following a jury trial, of four counts of lewd and lascivious acts by force with a child under the age of fourteen, two counts of lewd and lascivious acts with a child under the age of fourteen, one count of endangering the life or health of a child, and one misdemeanor count of child endangering. Maciel was also charged with three prior felony convictions which were found to be true. Maciel was denied probation and sentenced to forty-two years, four months imprisonment.

The two victims were Maciel's stepdaughters, age nine and ten at the time of trial. Maciel was found to have molested the two children while their mother was hospitalized in November 1985.

In his petition, Maciel claims that: (1) there was insufficient evidence to convict him on count five and count six; (2) the trial court improperly allowed him to represent himself at trial; (3) he was denied a fair trial because he was deprived of necessary medicine during his trial; (4) he was denied a fair trial because of prosecutorial misconduct; (5) the jury was discharged without returning unanimous verdicts; (6) his sentence under California Penal Code § 667(a) is unconstitutional; (7) the allegations in the information were not sufficiently specific; (8) the trial court improperly compelled the jury to continue deliberations after it reported that it was deadlocked; and (9) he was denied effective assistance of counsel at trial and on appeal.

Sufficiency of the Evidence

Maciel contends that there was insufficient evidence to convict him on count five, a lewd and lascivious act by force with a child under the age of fourteen in violation of California Penal Code § 288(b), and count six, a lewd and lascivious act with a child under the age of fourteen in violation of California Penal Code § 288(a). Specifically, Maciel argues that on cross-examination the victim testified that she could not remember the alleged incidents and that no force was used against her.

In determining whether the evidence is sufficient to sustain a conviction, we must review that evidence in the light most favorable to the prosecution and determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 320 (1979); Mikes v. Borg, 947 F.2d 353, 356 (9th Cir. 1991), cert. denied, 112 S. Ct. 3055 (1992). If the record could support conflicting inferences, we "must presume--even if it does not affirmatively appear in the record--that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326.

Here, counts five and six involve acts with respect to the younger of the two victims. On direct examination both victims gave specific details of the lewd acts and beatings. The older victim gave eyewitness accounts of the lewd acts and beatings Maciel committed on the younger victim. Although the younger victim did give contradictory testimony on cross-examination, we must presume that the jury resolved the contradictions in favor of the prosecution, and must defer to that resolution. Jackson, 443 U.S. at 326. Therefore, reviewing all the evidence in the light most favorable to the prosecution, we conclude that a rational factfinder could have found that Maciel was guilty beyond a reasonable doubt. See Jackson, 443 U.S. at 320; Mikes, 947 F.2d at 356.

Request of Self Representation

Maciel contends that the trial court erred in permitting him to represent himself at trial. Specifically, Maciel contends that the trial court did not inquire whether Maciel understood the charges, possible penalties, and ...


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