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NGUYEN v. KNOWLES

United States District Court, N.D. California


April 22, 2004.

CUONG VAN NGUYEN, Petitioner,
v.
MICHAEL A KNOWLES, Warden Respondent

The opinion of the court was delivered by: VAUGHN WALKER, District Judge

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS

Petitioner is an inmate at Mule Creek State Prison serving 27 years to life after he was convicted by a jury in the Superior Court of the State of California in and for the County of Santa Clara on two counts of forgery, one count of possession of stolen property and one count of resisting arrest. The jury also found to be true that petitioner committed these offenses while on bail, and that he had two prior serious felony convictions.

The California Court of Appeal affirmed the judgment of conviction and the Supreme Court of California denied review. On August 14, 2002, the Supreme Court of California also denied his final state habeas petition. While petitioner's collateral proceedings were pending, Petitioner filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254 in this court on March 12, 2002. This court granted petitioner's motion to stay these proceedings, pending exhaustion of state remedies. Petitioner filed his amended petition on August 22, 2002. Per order filed on October 16, 2002, the court found that the petition, liberally construed, stated cognizable claims under S 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause and petitioner has filed a traverse.

  I

  On July 8, 1998, while petitioner was on bail and awaiting sentencing for a second strike prior conviction, he attempted to cash a fictitious check in the amount of $982.32 using his check-cashing identification card. The cashier was suspicious of the check and unsuccessfully attempted to contact the check's issuing company to verify the check. The cashier photocopied petitioner's identification and the check. Petitioner took back the identification and check and quickly ran out of the business and fled in a car. A subsequent investigation confirmed the check was forged.

  Two days later, petitioner again tried to pass a forged check, this time in the amount of $986.24. The police were notified and arrested petitioner when they arrived. Petitioner offered several explanations regarding the check.

  On August 3, 1998, petitioner was stopped while driving a vehicle. When the officer approached petitioner, he sped away. A chase ensued, during which petitioner jumped out of the vehicle while it was still moving. The passenger in the vehicle remained in the car as it struck a utility pole. Both petitioner and the passenger were later arrested.

  The vehicle petitioner was driving had no license plates and contained no ownership documents. A vehicle search revealed property belonging to victims of a burglary that occurred the previous day. A residence was broken into and the owner's property, including cameras, lenses, binoculars, cash, a CD player and a box of blank checks, was taken. Some of this property, including the camera equipment, lenses, a CD player, binoculars and a pad of checks with the burglary victim's name imprinted on them were recovered from the vehicle petitioner was driving.

  II

  A federal writ of habeas corpus may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application 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." 28 U.S.C. § 2254(d).

  "Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

  "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.

  The only definitive source of clearly established federal law under 28 U.S.C. i 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id. at 412; Clark v Murphy, 331 P.3d 1062, 1069 (9th Cir 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.

  Although petitioner exhausted his claim through the California Supreme Court, the last reasoned state court opinions are from the California court of appeal (on direct appeal) and the Santa Clara superior court (on habeas). These are the state court opinions that must be examined against the standard of review in 28 U.S.C. § 2254 (d). See LaJoie v. Thompson. 217 F.3d 663, 669 n.7 (9th Cir 2000).

  III

  Petitioner raises six claims for relief under § 2254: (1) ineffective assistance of trial counsel, (2) ineffective assistance of appellate counsel, (3) denial of due process based on improper admission of evidence, (4) insufficiency of the evidence to support a sentence enhancement, (5) improper application of the "Three Strikes Law" and (6) cruel and unusual punishment.

  A

  Petitioner claims he was deprived of effective assistance of counsel because counsel in his most recent trial: (1) failed to object to a jury instruction, (2) failed to make a motion to strike a prior "strike" conviction and (3) failed to make a motion to set aside a prior "strike" conviction. Pet Brief (Doc # 1) at 13-23. Petitioner's claims have no merit.

  To prevail on his ineffective assistance of counsel claim, petitioner must establish two things. First, he must establish that counsel's performance was deficient, i e, that it fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland v Washington. 466 U.S. 668, 687-88 (1984). Second, he must establish that he was prejudiced by counsel's deficient performance, i e, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

  1

  Petitioner claims that he was denied effective assistance when his trial counsel failed to object to the jury instruction that the jury should not consider penalty or punishment. Pet Brief (Doc # 1) at 13. Trial counsel's failure, argues petitioner, was unreasonable and affected the outcome of the trial because it eliminated the jury's nullification power in violation of the Sixth Amendment. Petitioner's claim has no merit.

  The superior court denied petitioner relief on this claim as follows:

A petitioner must make a showing, first, that the errors committed by his attorney "fell below an objective standard of reasonableness * * * under prevailing professional norms." (In re Resendiz (2001) 25 Ca1.4th 230, 239, citing Strickland v. Washington. 466 U.S. 668, 688).
Second, a petitioner must show a "reasonable possibility that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Resendiz, supra, at p 239). A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Srickland, supra, at pp 693-94; see also People v. Ledesma (1987) 43 Cal.3d 171, 215-218). If courts can dispose of an ineffective assistance of [counsel] claim on the basis that the defendant has failed to establish any prejudice, then the performance prong need not be reached. (Strickland, supra, at p 697).
Petitioner has not adequately shown as to how his counsel's failure to object to the jury instruction fell below the objective standard of reasonableness. There was no reason to object because it was proper for the court to inform the jury that it must not consider penalty. (See CALJIC No 17.42, People v. Nichols (1997) 54 Cal App. 4th 21, 24). Moreover, Petitioner cannot successfully argue that the instruction had the effect of removing the jury's nullification power. To inform the jury that Petitioner was a "three strike" candidate would encourage the jury to exercise that power, and the courts are not required to instruct on the power of jury nullification. (Nichols, supra, at pp 25-26).
In re Cuong Van Nguyen, No 208641, slip op at 2-3 (Santa Clara Superior Court Aug 1, 2001) (Respt Exh 13).

  The superior court's rejection of petitioner's ineffectiveness claim was not contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d).

  Despite the fact that juries can ignore the law in their verdicts, courts are not required to instruct juries that they may ignore the law. See United States v. Powell, 955 P.2d 1206, 1213 (9th Cir 1992). Put simply, there is no constitutional right. to jury nullification. See id. There is simply no reason to believe that the trial court would have given any such instruction. Accordingly, counsel's failure to object to the jury instruction on the ground that it eliminated the jury's nullification power did not fall below the objective standard of reasonableness. See Strickland, 466 US at 688. Petitioner is not entitled to federal habeas relief on this claim.

  2

  Petitioner next claims that his trial counsel rendered ineffective assistance because he failed to make a motion to strike his prior strike conviction for attempted first degree burglary on the basis of ineffective assistance. Pet Brief (Doc # 1) at 16-20. Petitioner claims that counsel in the prior action provided ineffective assistance of counsel by failing to completely and adequately explain all possible defenses to the burglary charge. specifically that he did not actually "break and enter." Id. at 18-20. As a result, petitioner claims he pled guilty to the offense unknowingly and unintelligently. Id. at 19. Petitioner argues that if he had known of the defenses, he would not have pled guilty and would have proceeded to trial. Id. Ultimately, petitioner asserts that had counsel on the recent offenses made a motion to strike the burglary conviction based on his prior counsel's deficient performance, he would have been sentenced to a lesser, determinate term. Petitioner's claim has no merit.

  The superior court denied petitioner relief on this claim as follows:

This Court must reject Petitioner's claim because Petitioner has failed to allege prejudice. Given the strength of the case against Petitioner, it appears that even if he had gone to trial, he would have been convicted. The record reveals that Petitioner and his two co-defendants acted in concert to gain entry into the victim's home. One of them initiated the burglary by making sure no one was home by pounding on the front door and shouting. Petitioner's co-defendants then broke a window, while Petitioner served as a lookout by standing at the rear of a car with its hatchback open in the victim's driveway. The screen and the tool that broke the window were found near the window. Broken glass from the window was found in the bathtub. Evidence does not reveal that Petitioner and his co-defendants were known to the victim, and had permission to be at the victim's home. Moreover, it is irrelevant that Petitioner did not actually "break and enter." Petitioner was liable for burglary as an aider and abettor and a co-conspirator.
Therefore, Petitioner's attorney on the burglary offense did not render ineffective assistance by failing to inform Petitioner of all possible defenses. Accordingly, this Court finds that his attorney on the current of fenses did [not] render ineffective assistance by failing to move to strike his prior on the basis of the allegedly failings by trial counsel.
In re Cuong van Nguyen, No 208641, slip op at 3-5 (Santa Clara Superior Court Aug 1, 2001) (Respt Exh 13).

  As a preliminary matter, petitioner provides no evidence that specific defenses were not discussed in the burglary case. Nonetheless, the defense that petitioner argues would have changed his decision if he had known of it — that petitioner was not liable for the burglary because he did not actually "break and enter" — was non-existent.

  The two-part Strickland test applies to ineffective assistance claims where counsel advises a defendant to accept or reject a plea offer. See Hill v. Lockhart, 474 U.S. 52, 57-58 (1985). Under the first prong, in advising a defendant, "[c]ounsel cannot be required to accurately predict what the jury or court might find, but he can be required to give the defendant the tools he needs to make an intelligent decision." Turner v. Calderon, 281 F.3d 851, 881 (9th Cir 2002). To establish the second prong, prejudice from the counsel's advice to accept a plea offer, petitioner must show that there is a reasonable probability that, but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. See Hill. 474 US at 57-59.

  Here, counsel's advice in the prior burglary case was not deficient because under California law, "entering" is not an essential element of first degree burglary where the defendant acts as an aider and abettor. See People v. Montoya, 7 Cal.4th 1027, 1050-51 (1994). Trial counsel in Montoya did not render ineffective assistance for failing to discuss this possible defense. Id. Likewise, the alleged failure of petitioner's counsel to raise this non-existent defense did not constitute deficient performance. Strickland. 466 US at 688-89.*fn1 Accordingly, petitioner's counsel on the current offenses was not constitutionally ineffective for failing to make a motion to strike petitioner's burglary prior on this basis. Cf Wilson v. Henry, 185 F.3d 986, 990 (9th Cir 1999)(to show prejudice under Strickland from failure to file a motion, petitioner must show that (1) had his counsel filed the motion, it is reasonable that the trial court would have granted it as meritorious and (2) had the motion been granted, it is reasonable that there would have been an outcome more favorable to him).

  The Santa Clara superior court's rejection of petitioner's claim was not contrary to, or involved an unreasonable application of, the Strickland standard. See 28 U.S.C. § 2254(d). Petitioner is not entitled to federal habeas relief on this claim of ineffective assistance of counsel.

  3

  Petitioner claims that trial counsel on the current offenses was ineffective because he failed to file a motion under California Penal Code section 995 to set aside his prior attempted first degree burglary conviction. Pet Brief (Doc # 1) at 20-23. The heart of petitioner's claim is that his sentence to county jail for the attempted burglary conviction is not a strike under California's "three strikes" law. Id. at 21. Petitioner reasons that under California Penal Code section 17(b) his conviction is a misdemeanor, not a strike felony, because it was "punishable by imprisonment in the state prison, or in discretion of the court by imprisonment in county jail." Id. Petitioner argues that counsel's failure was deficient because he should have made this motion to set aside the prior conviction, and prejudicial because the trial court would have set aside the conviction and not sentenced petitioner under the "three strikes" law. Id. at 22-23.

  In rejecting petitioner's claim, the superior court stated:

Petitioner's attempted first degree burglary conviction was punishable by imprisonment in state prison. (See Pen Code secs. 664(a), 461.) Thus, Petitioner was convicted of a felony. (See Pen. Code sec. 17(a).) A felony conviction can be reduced to a misdemeanor when the offense is punishable by imprisonment in the state prison, or in county jail, and the court actually imposes time in county jail at sentencing. (See Pen. Code sec. 17(b)(1), See also People v. Vessel (1995) 36 Cal.App.4th 285, 291.) Therefore, because attempted first degree burglary qualifies as a serious felony under Penal Code section 1192.7, Petitioner was properly sentenced under the "three strike's [sic] law."
Because Petitioner's burglary conviction was a strike prior. Petitioner's counsel did not render ineffective assistance when he failed to file a pre-trial motion to set aside that conviction.
In re Cuong Van Nguyen, No 208641, slip op at 5-6 (Santa Clara Superior Court Aug 1, 2001) (Respt Exh 13).

  The superior court's determination that petitioner's burglary conviction was a strike prior is correct; however, its reasoning is incomplete because it neglects to consider one intermediate step. Under California law, if an offense is a "wobbler", meaning it could be classified as either a felony or a misdemeanor, then it is deemed a felony for "all purposes" unless the court finds and declares it to be a misdemeanor at sentencing. People v. Perez, 38 Cal App. 4th 347, 360 (1995). Here, there is no evidence that the trial court found and declared the offense to be a misdemeanor at sentencing. Accordingly, the state court's determination that petitioner's burglary conviction was a strike prior under California law is reasonable and this court is bound by it. See Bains v. Cambra, 204 F.3d 964, 972 (9th Cir 2000) (federal courts are "bound by the state court's interpretations of state law"). And trial counsel's failure to move to set aside the prior on this basis did not constitute ineffective assistance of counsel. Cf Wilson. 185 F.3d at 990.

  The superior court's rejection of petitioner's claim was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d). Petitioner is not entitled to federal habeas relief on this claim of ineffective assistance of counsel.

  B

  Petitioner claims that he was deprived of effective assistance of counsel on appeal because appellate counsel on direct appeal failed to raise petitioner's trial counsel's failures. Specifically, petitioner claims that trial counsel failed to: (1) raise the trial court's alleged abuse of discretion in denying petitioner's motion for a new trial, (2) raise the trial court's abuse of discretion in denying petitioner's motion to strike a prior conviction, (3) raise the trial court's abuse of discretion in denying petitioner's motion to reduce the current offenses to misdemeanors, and (4) file a severance motion. Pet Brief (Doc # 1) at 23-26. The claims are without merit.

  The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. See Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of appellate counsel are reviewed according to the standard set out in Strickland v. Washington. Miller v. Keeney, 882 P.2d 1428, 1433 (9th Cir 1989); United States v. Birtle, 792 P.2d 846, 847 (9th Cir 1986). Petitioner must therefore show that counsel's advice fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, he would have prevailed on appeal. Miller. 882 P.2d at 1434 & n 9 (citing Strickland. 466 US at 688, 694; Birtle. 792 F.2d at 849). The burden of proving ineffective assistance of counsel is on the defendant. Strickland. 466 US at 688.

  The superior court rejected petitioner's claims as follows:

a. Trial Court's Abuse of Discretion in Denying Motion for New Trial
Petitioner alleges that his trial counsel failed to argue that the court abused its discretion in denying his motion for new trial. He filed a motion for new trial because Thomas Orvis, co-defendant's attorney on the current offenses, had represented him on the 1996 burglary charge. Petitioner claimed that Orvis had "special knowledge" about him, and that caused him not to testify. Thus, Petitioner asserts that his appellate counsel rendered ineffective assistance by failing to raise his trial counsel's failure to argue that the court abused its discretion in denying the motion.
The trial court did not abuse its discretion in denying the motion because there was no actual or potential conflict that would have required disqualification of Orvis.
An attorney has "confidential information" if the former representation is "substantially related" to the current representation. (Rosenfeld Construction Co. v. Superior Court (1991) 235 Cal.App.3d 566, 574.) "Where the substantial relationship exists, especially where the relationship is such that confidential information normally would have been imparted to the attorney, a rule of necessity causes a presumption of conflict." (Id.)
Here, because there was no substantial relationship between the current offenses and the 1996 burglary conviction, the motion was properly denied. Thus, there was no reason for Petitioner's trial counsel to raise the issue. Trial counsel did not render ineffective assistance.
b. Trial Court's Abuse of Discretion in Denying Petitioner's Motion to Strike Prior Conviction
Petitioner claims that the court abused its discretion in denying his motion to strike his prior convictions. We disagree.
Pursuant to Penal Code section 1385(a), "in furtherance of justice, "the court on its own motion may dismiss an allegation or vacate finding that a prior serious or violent felony conviction qualifies as a strike under the Three Strikes laws. (People v. Williams (1998) 17 Ca1.4th 148, 151, citing People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) In determining whether to strike a prior serious and/or violent felony conviction, the court must consider whether, "in light of the nature and circumstances of his present felonies and prior felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may [be] deemed outside the scheme's spirit," and "be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Williams, supra, at p. 161.)
Here, given Petitioner's record of criminal conduct, Petitioner's strike convictions in 1996 and 1998, and the circumstances in which the underlying offenses were committed (twice attempting to cash counterfeit "payroll" checks that were payable to him at two different locations, while on probation and out on bail on the second strike matter), the trial court did not abuse its discretion in denying Petitioner's motion to strike his priors. Accordingly, we find that trial counsel's performance was not in any way deficient.
c. Trial Court's Abuse Of Discretion In Denying Petitioner's Motion To Reduce The Current Offenses To Misdemeanors, Or Trial Counsel's Failure To Pile A Motion To Reduce The Current Offenses To Misdemeanors
Petitioner alleges that trial court abused its discretion in denying his motion to reduce the forgery and possession of stolen property offenses to misdemeanors, or that his trial counsel was ineffective for not filing a motion.
A "wobbler" is a "crime * * * punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail * * *." (Pen. Code sec 17(b).) Forgery and possession [of] stolen property are such crimes. (Pen. Code secs. 473, 496(a).) If an offense is a "wobbler," it is deemed a felony for "all purposes" unless the court finds and declares it to be misdemeanor at sentencing. (People v. Perez (1995) 38 Cal.App.4th 347, 360.) Factors relevant to informing the trial court's exercise of discretion as to whether to reduce the "wobbler" offense include "nature and circumstances of offense, defendant's appreciation of an attitude toward offense, or his traits of character as evidenced by his behavior and demeanor at trial, and when appropriate, general objectives of sentencing." (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.)
Here, the record does not reveal that Petitioner filed a motion to reduce the current offenses to misdemeanors. Even if Petitioner did file a motion, given Petitioner's criminal history, and the nature and circumstances in which the current offenses were committed, the motion would likely have been denied. Thus, this Court does not find that the trial court abused its authority in not reducing the offenses to misdemeanors, or that his counsel was ineffective for not filing a motion.
d. Trial Counsel's Failure to File a Severance Motion
Petitioner claims that his trial counsel was ineffective for not filing a severance motion. Unfortunately, Petitioner does not elaborate on this issue. Without any further explanation of the basis for the claim. People v. Duvall (1995) 9 Cal.4th 464, this Court cannot and will not address Petitioner's claim on the merits.
In short. Petitioner's claim of ineffective assistance of appellate counsel fails because, as stated above, his trial counsel rendered effective assistance.
In re Cuong Van Nguyen, No 208641, slip op at 6-10 (Santa Clara Superior Court Aug 1, 2001) (Respt Exh 13).

  The superior court's rejection of petitioner's ineffective assistance of appellate counsel claims was a reasonable application of the Strickland standard. First, appellate counsel was not ineffective for failing to raise on appeal that trial counsel did not argue that the trial court abused its discretion in denying petitioner's motion for a new trial. As the superior court held, the trial court's determination to deny the motion for a new trial was correct because there was no substantial relationship between the current offenses and the prior conviction. There is no reasonable probability that, had appellate counsel raised the issue, petitioner could have prevailed on appeal. See Miller. 882 F.2d at 1434 & n9.

  Second, petitioner's appellate counsel was not ineffective for failing to raise on appeal that trial counsel was ineffective for not raising the trial court's alleged abuse of discretion in denying petitioner's motion to strike petitioner's priors. As the superior court held, the trial court did not abuse its discretion given petitioner's criminal record and the circumstances of the current offenses. There is no reasonable probability that, had appellate counsel raised the issue, petitioner would have prevailed on appeal. See id.

  Third, appellate counsel was not ineffective for not failing to raise on appeal that trial counsel was ineffective for either not filing a motion or for failing to raise the trial court's alleged abuse of discretion in denying petitioner's motion to reduce the current offenses. Assuming no motion was filed, there was no prejudice to petitioner because, based on petitioner's criminal history and the nature of the current offenses, there was no reasonable probability the motion would have been granted. Likewise, if the motion was filed but denied, the trial court did not abuse its discretion based on petitioner's history and current crimes. Appellate counsel was not ineffective for not raising this issue because there is no reasonable probability that, if he had, petitioner would have prevailed on appeal. See id.

  Finally, appellate counsel was not ineffective for failing to raise on appeal that trial counsel was ineffective for not filing a severance motion. The superior court denied this claim because petitioner did not explain the basis for the claim. It fails here as well.

  To succeed on the claim, petitioner must demonstrate that if trial counsel had filed the motion to sever, there is a reasonable probability the trial court would have granted the motion and led to petitioner's acquittal. Severance is appropriate when a defendant "shows that the core of the co-defendant's defense is so irreconcilable with the core of his own defense that the acceptance of the co-defendant's theory by the jury precludes acquittal of the defendant." United States v Throckmorton. 87 F.3d 1069, 1072 (9th Cir 1996). Here, the record does not show that severance was appropriate or that trial counsel's failure to file a severance motion was either deficient or prejudicial. Accordingly, appellate counsel did not render ineffective assistance for failing to argue that trial counsel was ineffective for failing to file a motion to sever. See Miller, 882 F.2d at 1434 6 n9.

  The superior court's rejection of petitioner's claims of ineffective assistance of appellate counsel was neither contrary to, nor involved an unreasonable application of clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d). Petitioner is not entitled to federal habeas relief on his claim of ineffective assistance of appellate counsel.

  C

  Petitioner claims he was denied due process when the trial court permitted the prosecution to use the forgery charges to prove he committed other charged crimes. Pet Brief (Doc # 1) at 26-37. The claim is without merit. In rejecting petitioner's claim, the California court of appeal stated:

During motions in limine, the prosecutor informed the court he wanted to argue to the jury that evidence of the forgery counts, which showed that the defendant twice tried to pass a bad check, was evidence of the defendant's motive and intent and lack of mistake or accident on the burglary and possession charges. Defense argued against the admission of the evidence, but the court found the prosecution's argument acceptable.
In closing argument, the prosecutor argued, without objection, that the defendant's two attempts to cash counterfeit checks was evidence of the defendant's motive or intent in the alleged burglary and possession of stolen property. The defense theory was that there was no evidence that the defendant knew anything about the stolen items in the backseat of the car that he was driving. Defense counsel argued: "There is no evidence * * * that Cuong Nguyen ever saw or heard or knew about those checks before his arrest.".
The defendant contends the jury was not entitled to use the evidence of the two forgery counts to convict him of other charges and the prosecutor's theory of relevancy was merely a theory of general criminality and propensity to commit a certain type of crime. Defendant contends that "the trial court's ruling prejudiced the defendant because it mislead[s] the jury as to its task" in resolving whether he knew of the presence of the stolen checks found in his car and improperly "permitted [the jurors] to infer knowledge from the wholly unrelated and extraneous forgery charges." He also maintains that any probative value was outweighed by potential prejudice. (See Evid, Code, § 352.)
We conclude that the defendant did not preserve the issue whether the jury could consider evidence of check forgery for purposes of determining his mental state in possessing stolen property. "[I]n limine rulings are not binding because the trial court has the power to reconsider, modify or set aside its order at any time prior to submission of the cause, (citations omitted). For that reason it has been held that where there is an in limine ruling that evidence is admissible, the party seeking exclusion must object when the evidence is offered at trial in order to preserve the issue for appeal. (citations omitted).
The evidence of the two attempts to pass counterfeit checks was obviously relevant and admissible based upon the two forgery charges. (Evid. Code, SS 210, 250-352; § 470.) The defendant did not request the court to instruct the jury that the evidence of the forgery counts could be considered for the limited purpose of proving those charges and could not be considered on the remaining counts on the ground that the evidence of the forgeries, if uncharged, would not have been admissible under Evidence Code section 1101, subdivision (a). (See Evid. Code, S 355.) "[A]bsent request by a party, there is no duty to give an instruction limiting the purpose for which evidence may be considered. (See Evid. Code, f 355 * * *.)" (citations omitted).
The defendant argues that if this court concludes, as we have, any objection was waived, he was denied effective assistance of counsel. The record does not support his claim.
"To establish constitutionally ineffective assistance of counsel under either the state or federal constitutional right to counsel, appellant must demonstrate (1) that his attorney's performance fell below an objective level of reasonableness and thus did not meet the standard to be expected of reasonably competent attorney, and (2) that he suffered prejudice as a result of that failure. Prejudice is established if there is a reasonable probability that, absent counsel's errors, the result would have been different, (citations omitted).
A number of courts have rejected the assertion that an instruction based on Evidence Code section 1101, subdivision (a), should be given when separate offenses are tried together. (People v. Kegler (1987) 197 Cal.App.3d 72, 81; People v. Thornton (1979) 88 Cal.App.3d 795, 804; People v. Jackson (1975) 45 Cal.App.3d 67, 70.) The California Supreme Court has rejected a claim of ineffective assistance of counsel based on defense counsel's failure to request such an instruction, stating: "[T]he case law suggests that such a limiting instruction is not necessary or proper in a case where charges are properly joined, particularly where * * * CALJIC Ho 17.02 was given." (People v. Arias (1990) 13 Ca1.4th 92, 140-141.)
Even assuming such a limiting instruction may be proper under certain circumstances, it is not evident that the evidence of forgery was irrelevant to the possession charge on grounds other that criminal disposition. Pursuant to Evidence Code section 1101, subdivision (ab), evidence that a defendant has committed an offense, although inadmissible to demonstrate the defendant's disposition to commit crimes * * * may be received to establish mental state or to negate some other innocent state of mind. "[T]he prior doing of other similar acts, whether clearly a part of a scheme or not, is useful as reducing the possibility that the act in question was done with innocent intent." (2 Wigmore on Evidence (Chadbourn rev. ed. 1979) S 302, p. 245, fn omitted). "`[T]he recurrence of a similar result * * * tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act * * *." (2 Wigmore, supra, (Chadbourn rev. ed. 1979) S 302, p. 241.) In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant "` probably harbor[ed] the same intent in each instance." [Citations.]' (People v. Robbins, supra, 45 Cal.3d 867, 869.)" (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) Contrary to the defendant's contention, the evidence of two instances of check forgery was sufficiently similar to the evidence of possession of stolen blank checks to meet the minimal standard of relevancy. That evidence had probative value to negate the possibility of innocent explanation for the presence of those checks in the care driven by defendant. (See Evid Code, § 210.)
In any event, the stolen items were found in the car with no plates driven by the defendant. The defendant's acts of driving away from a simple traffic stop for running a red light and then subsequently jumping from his moving car were indicative of consciousness of guilt. (See CALJIC No 2.03.) There is not a reasonable probability that the result would have been different had defense counsel successfully obtained a limiting instruction.
People v. Nguyen, No H020055, slip op at 2-5 (Cal Ct App. Feb. 2, 2001) (Respt Exh 9).

  Petitioner has procedurally defaulted the due process portion of this claim by failing to contemporaneously object when the evidence was offered at trial. See Vansickel v. White. 166 F.3d 953, 957-58 (9th Cir 1999). But even if petitioner had not defaulted, the claim still fails.

  A state court's evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. See Pulley v. Harris. 465 U.S. 37, 41 (1984); Henry v Kernan, 197 F.3d 1021, 1031 (9th Cir 1999); Jammal v. can de kamp, 926 F.2d 918, 919-20 (9th Cir 1991). The due process inquiry in federal habeas review is whether the admission of evidence was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. See Estelle v. McGuire, 502 U.S. 62, 67 (1991); Walters v. Maass, 45 P.3d 1355, 1357 (9th Cir 1995). Generally, only if there are no permissible inferences that the jury may draw from the evidence can its admission violate due process. See Jammal, 926 P.2d at 920. And even so the evidence must be of such highly inflammatory or emotionally charged quality as necessarily preventing a fair trial. See id at 920-21.

  The admission of evidence of forgery to prove the other charges did not violate due process because the evidence was probative of petitioner's intent and motive in connection with the possession charges, and not so highly inflammatory or emotionally charged as to necessarily prevent a fair trial. See id. Moreover, the record makes clear that it cannot be said that the admission of the evidence of forgery, even if constitutional error, had a substantial and injurious effect or influence in determining the jury's verdict. See Brecht v. Abrahamson, 507 U.S. 617, 637 (1993). The evidence of petitioner's guilt was overwhelming.

  The California court of appeal's rejection of petitioner's claim was neither contrary to, or an unreasonable application of, clearly established Supreme Court precedent. See 28 U.S.C. § 2254 (d). Petitioner is not entitled to federal habeas relief on his claim of denial of due process.

  D

  Petitioner claims the evidence adduced at trial was insufficient to prove the sentence enhancement that petitioner committed the current offenses while on bail for a prior crime. Pet Brief (Doc # 1) at 37-39. The California court of appeal considered and rejected petitioner's claim as follows:

"[Cal Pen Code] [s]ection 12022.1 provides for a two-year enhancement if it is determined that a defendant committed the current felony offense while released from custody on bail or on his or her own recognizance prior to judgment on a prior felony offense." (People v. Cole (1994) 23 Cal.App.4th 1672, 1677.) The information in this case alleged that at the time of commission of all alleged offenses, the defendant was "out of custody on bail on a felony, to wit: burglary of an inhabited dwelling house, a violation of Section 459/460(A) of the Penal Code * * *."
In support of the section 12022.1 allegation, the prosecution offered several documents. The record contains, among other things, a criminal history printout showing that the defendant was booked on a burglary charge on May 19, 1998 and then released on May 20, 1998 with a "BB" status. There is a bail bond for Nguyen date May 20, 1998, showing that the defendant pled guilty to burglary on that date, the case was certified to the superior court, and the defendant released on bail. An I.D. sheet shows Nguyen was booked on July 11, 1998 and was released the same date with a "BB" status. An I.D. sheet shows Nguyen was again arrested on August 3, 1998. The August 12, 1998 abstract of judgment shows that a sentencing hearing was held on August 11, 1998, and defendant was finally sentenced to state prison for the burglary conviction.
In closing argument, the prosecutor directed the jury's attention to these documents and explained that "BB" meant bail bond. The jury found the enhancement allegation true. The defendant now challenges the sufficiency of the evidence.
The defendant argues that the prosecution failed to carry its burden of proving an enhancement under section 12022.1 because the prosecution did not call any witness to explain the documents that were offered and failed to present evidence establishing that the bail bond was still in effect at the time appellant committed the offenses of which he was convicted in the present case. We disagree.
As is standard, the court instructed: "Statements made by the attorneys during the trial are not evidence." "Jurors are presumed to understand and follow the court's instructions, (citations omitted)." The jurors could deduce for themselves that the "BB" abbreviation stood for bail bond. They could reasonably infer from the evidence that the defendant was released on bail in the burglary case on May 20, 1998, and was merely booked and released on other charges until finally being sentenced on his burglary conviction on August 11, 1998. We agree with respondent that the prosecutor's remarks merely suggested reasonable inferences to be drawn from the evidence. The evidence was sufficient to support the true finding as to the section 12022.1 allegation.
People v. Nguyen, No H020055, slip op at 5-8 (Cal Ct App. Feb 2, 2001) (Respt Exh 9).

  A state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt therefore states a constitutional claim. Jackson v. Virginia, 443 U.S. 307, 321 (1979). A federal habeas court, however, "determines only whether, `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Payne v Borg, 982 F.2d 335, 338 (9th Cir 1992) (quoting Jackson, 443 US at 319). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt, may the writ be granted. See Jackson, 443 US at 324. Circumstantial evidence and inferences drawn from the evidence may be sufficient to sustain a conviction. Walters v Maas, 45 F.3d 1355, 1358 (9th Cir 1995).

  The California court of appeal reasonably concluded that the evidence was sufficient to support finding that petitioner was on bail. There was substantial evidence presented, such as petitioner's criminal history printouts and bail bond, for the jury to conclude beyond a reasonable doubt that petitioner was out on bail when he committed the offenses. See Jackson, 443 US at 319.

  The California court of appeal's rejection of petitioner's claim was neither contrary to, or an unreasonable application of, clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d). Petitioner is not entitled to federal habeas relief on this claim.

  E

  Petitioner claims that his guilty plea in one of his priors does not constitute a qualifying conviction under the "three strikes" law because he was not sentenced on that plea until after he committed his "third strike" offenses. Pet Brief (Doc # 1) at 39-42.

  As petitioner acknowledges, the California court of appeal in People v. Williams, 49 Cal App. 4th 1632 (1996), explicitly rejected this argument. Pet Brief at (Doc # 1) 39-40. The court in Williams held that under the three strikes law, "when guilt is established, either by plea or verdict, the defendant stands convicted and thereafter has a prior conviction." Id. at 1638. Under California law, it is an accepted principle "that for purposes of a prior conviction statute, a conviction occurs at the time of entry of the guilty plea." People v. Balderas. 41 Cal.3d 144, 203 (1985). The California court of appeal in petitioner's case applied this reasoning, and added:

The California Legislature's intent in enacting section 667, subdivisions (b) to (i), inclusive, was "to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses." (S 667, subd, (b).) "The statute's unambiguous purpose is to provide greater punishment for recidivists." (People v. Davis (1997) 15 Cal.4th 1096, 1099.) As to section 1170.12, the voters' stated intent in enacting this measure was "to ensure longer prison sentences and greater punishment for those who conmit a felony and have been previously convicted of serious and/or violent felony offenses." (50B West's Ann. Pen. Code (2001 supp.) foil. § 1170.12, p. 161 [statement of intent preceding text of section 1170.12 in Prop. 184, approved Nov. 8, 1994].) In construing these provisions, its is our duty to effectuate the underlying intent. (See People v. Thomas (1999) 21 Ca1.4th 1122, 1125; People v. Williams, supra, 49 Cal.App.4th 1632, 1638.) As used in the three strikes law, the term "convicted" must be given a meaning that comports with the intent and purpose of deterring recidivism. This purpose would be frustrated by a construction that did not take account of prior criminal conduct. We see no reason to deviate from our holding in Williams.
People v. Nguyen, No H020055, slip op at 8-9 (Cal Ct App. Feb 2, 2001) (Respt Exh 9).

  A determination of state law by a state appellate court is binding in a federal habeas action. Hicks v. Feiock, 485 U.S. 624, 629 (1988). A determination of state law made by an intermediate appellate court must be followed and may not be "`disregarded by a federal court unless it is convinced by other persuasive data. that the highest court of the state would decide otherwise.'" Id. at 630 n 3 (quoting West v. AMERICAN Telephone & Telegraph Co., 311 U.S. 223, 237-38 (1940)). Here, the California court of appeal reasonably determined that petitioner's prior qualified as a strike prior under California law and this court is therefore bound by the state court's interpretation of California law.

  The California court of appeal's rejection of petitioner's claim was not contrary to, or involved an unreasonable application, of clearly established Supreme Court precedent. See 28 U.S.C. I 2254(d). Petitioner is not entitled to federal habeas relief on this claim.

  F

  Petitioner's final claim is that his sentence was imposed in violation of the prohibitions against cruel and unusual punishment. Pet Brief at (Doc # 1) 43-60. He points to his convictions, and argues that no one was injured, no one suffered monetary loss and that his forgery and stolen property convictions could have been punished as either felonies or misdemeanors. Id. Accordingly, petitioner argues that his 27 years-to-life sentence violates the Eighth Amendment.

  The California court of appeal rejected petitioner's argument as follows:

We agree with respondent that [a]ppellant's analysis does not withstand scrutiny." (Fn. omitted.) An examination of the facts surrounding the current offenses, or the facts surrounding the past offenses, shows that the defendant cannot be credited with absence of personal or financial injury to others.
The probation report states the following. "Regarding the first Strike Prior/Serious Felony matter #187734, on 7/26/96, the defendant was granted three years formal probation for Attempted First Degree Burglary, with an Out On Bail enhancement." The probation report described the underlying facts: "[T]he defendant, who was out on bail under another case which also involved an attempted burglary, acted as a lookout while his two codefendants broke a window of the victim's home in the hope of gaining entry. A minor victim, who was home alone at the time, heard the commotion and called the police. The burglary was thus intercepted by the arrival of the police, and the defendant and his codefendants were arrested at the crime scene."
The probation report shows that the defendant was booked on a burglary charge on Nay 19, 1998, less than two years after the 1996 attempted burglary conviction. He was released on bail the next day. A first-degree burglary charge was filed on May 21, 1998 and he pled guilty on July 1, 1998. The probation report described the facts underlying this second strike offense: "[T]he defendant and his codefendant broke into the victim's residence while a third person was waiting for them outside in their car. While the burglary was in progress, the victim was hiding in the bathroom of her master bedroom in fear. Both defendants attempted to flee the residence through the garage when the police responded. They were arrested without incident. The codefendant admitted taking $100 from the victim's purse and a jewelry box.
The probation report states the following. On July 8, 1998, while out on bail and awaiting sentencing on the burglary charge, the defendant attempted to cash a fictitious check in the amount of $982.32 at a Fast Cash (count I in this case) but fled when the cashier made a photocopy of the check and the defendant's identification.
On July 10, 1998, the defendant presented a forged check in the amount of $986.24 to a Bank of the West (count 2 in this case). The police responded to a report of two subjects attempting to cash a fraudulent check. The defendant was arrested and then released on bail the next day.
The probation report states that on August 2, 1998, a residential break-in occurred in which cash and other items were taken. On August 3, 1998, San Jose police initiated a vehicle stop and the driver, later identified as the defendant, "pulled into the parking lot of the Garden City Card Club, but then sped away as soon as the officer walked up towards him." "A brief chase ensued as the defendant drove through the parking lot. Once the defendant got onto Northlake street [sic], he jumped out of the vehicle while it was still moving, then fled on foot towards the card club." The passenger "remained seated in the car until it finally struck a power pole and came to rest in a planter." It was determined the car had been stolen in late May 1998. Inside the car, police found all of the property belonging to the victims of the August 2 burglary.
According to the probation report, probation was terminated on the first strike offense conviction (attempted first degree burglary) on August 11, 1998. Also, on August 11, 1998, the defendant was sentenced to eight years state prison on the second strike conviction (first degree burglary). The probation report shows that, on August 11, 1998, the defendant was additionally sentenced to a concurrent term of 90 days county jail for using or being under the influence of a controlled substance and giving false identification to a peace officer.
"In determining whether a particular sentence constitutes cruel or unusual punishment under the state Constitution (art. I, § 17), we must determine whether the penalty `is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.' (In re Lynch, supra, Cal.3d at p. 424, * * *; People v. Frierson (1979) 25 Cal.3d 142, 183, * * *.)" (People v Bunyard (1988) 45 Cal.3d 1189, 1240.) In In Re Lynch, supra, 8 Cal.3d 410, the California Supreme Court recognized: "Whether a particular punishment is disproportionate to the offense is, of course, a question of degree. The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible. The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty `out of all proportion to the offense' [citations], i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment." (Id. at pp. 423-424.)
In Lynch, supra, 8 Cal.3d 410, the Supreme Court suggested three techniques the court could use for addressing the issue of cruel or usual punishment: (1) to examine "the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society" (id. at p. 425), (2) "to compare the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious" (Id. at p. 426, emphasis omitted), and (3) to compare "the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision" (id. at p. 427, emphasis omitted). The defendant suggests that the most relevant test to apply in this case is to examine the nature of offense and the offender.
As to the offense, we evaluate "the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts." (People v. Dilion (1983) 34 Cal.3d 441, 479.) As to the particular offender, we focus on "individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Ibid.)
Specifically, the defendant asserts that the forgery offense in this case "is even less egregious than the offense which was the subject of the decision in People v. Keogh [supra] 46 Cal.App.3d 919," where "the court struck down a sentence of 56 years for four counts of forgery involving checks totaling no more than $500." In People v. Keogh, supra, 46 Cal.App.3d 919, the court imposed four consecutive indeterminate 14-year maximum terms to effectively produce a maximum indeterminate life sentence for check forgery in a total amount of less than $500. (Id. at pp. 928*929, 932.) In that case, the defendant, who was not being sentenced under a recidivist statute, had a previous felony conviction and other minor convictions, all of which were related directly or indirectly to the use of heroin, and his criminal conduct had been nonviolent in nature. (Id. at p. 932.) The court concluded the sentence was so severely disproportionate as to violate the California Constitution, article I, section 6. (Ibid.)
In contrast, defendant Nguyen had previously committed offenses with a significant potential for harm or violence to others. Burglary is "a crime of significant potential violence since ` burglary laws are "`based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation-the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence. The laws are primarily designed * * * not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety."" [Citations.]" (People v. Hall (2000) 83 Cal.App.4th 1084, 1092, emphasis omitted.) The California Legislature has determined that burglary and attempted burglary of an inhabited dwelling house are serious felonies. (§ 1192.7, subds. (18), (34).)
The fact that the current offenses were not violent or serious does not render the sentence cruel and unusual. The defendant committed the first strike offense of attempted burglary of an occupied residence while out on bail on attempted burglary. He comitted the second strike offense of burglary of an occupied residence while on probation for the first strike. The defendant committed the current offenses while out of custody on bail. In committing the misdemeanor offense of resisting an officer, the defendant jumped out of the moving car he was driving, leaving the passenger to crash into a power pole. As the probation report notes, the defendant's criminal behavior "indicates a disregard for the safety of others and/or their property."
"California appellate courts have adopted the reasoning of Runnel v. Estelle (1980) 445 U.S. 263 [ 100 S.Ct. 1133, 63 L.Ed.2d 382] in upholding life sentences for third strike offenders. (People v. Ingram (1995) 40 Cal.App.4th 1397, 1415 * * * [Fifth District], disapproved on another ground by People v. Dotson (1997)16 Ca1.4th 547, 560, fn. 8 * * *; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631 * * * [Second District, Division Seven]; People v. Ayon (1996) 46 Cal.App.4th 385, 399 * * * [Fourth District, Division One], disapproved on another ground by People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10 * * *.) In Rummel, the United States Supreme Court upheld a life sentence for a repeat offender after a felony conviction of receiving $121 by false pretenses, with one prior felony conviction for credit card fraud worth $80 and another prior felony conviction for forging a $28 check. (445 U.S. at pp. 265-266 * * *.) The court reasoned that society is warranted in imposing increasingly severe penalties on those who repeatedly commit felonies. If increased penalties do not deter the repeat offender, then society is warranted in segregating that person for an extended period of time. (Id. at pp. 284-285 ***.)" (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511-1512.)
As the United States Supreme Court has observed: "[The] primary goals [of a recidivist statute] are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person's most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes." (Rummel v. Estelle (1980) 445 U.S. 263, 284.) "[T]he point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction." (Id. at p. 285.) After careful consideration, we conclude that defendant's sentence of 25 years to life with the possibility of parole does not violate California's prescription against cruel or unusual punishment given his intractable recidivism. (Cf. People v. Martinez, supra, 71 Cal.App.4th 1502, 1511-1512; People v. Cline (1998) 60 Cal.App.4th 1327, 1338; People v. Goodwin (1997) 59 Cal.App.4th 1084, 1093-1094; People v. Cooper (1996) 43 Cal.App.4th 815, 825-826; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136.)
As to the United States constitutional protection against cruel and unusual punishment, the defendant argues that [a] comparison of the gravity of appellant's offenses with the harshness of his sentence raises an inference of the type of gross disproportionality that renders the sentence violative of the Eighth Amendment." He asserts that his "situation is not materially different from that faced by the appellant in Solem." We disagree.
In Solem v. Helm (1983) 463 U.S. 277, Helm had been convicted of a seventh nonviolent, relatively minor, felony of uttering a "no account" check in the amount of $100 and sentenced to life imprisonment without possibility of parole. (Id. at pp. 279, 28 1-282, 296-297.) "His record involve[d] no instance of violence of any kind." (Id. at p. 297, fn. 22.) Relatively similar offenses involving $100 had been designated as misdemeanors in that state. (Id. at p. 296, fn. 20.) Nevertheless, he had been sentenced to the most severe penalty possible short of capital punishment. (Id. at p. 297.)
The Supreme Court held in Solem that "a criminal sentence must be proportionate to the crime for which the defendant has been convicted." (Id. at p. 290.) The court declared that "a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." (Id. at p. 292.) The court concluded that the life sentence without possibility of parole for Helm ran afoul of the Eighth Amendment because it was significantly disproportionate. (Id. at p. 303.)
Even assuming the test under Solem still constitutes the appropriate Eighth Amendment analysis (see Harmelin v. Michigan (1991) 501 U.S. 957), a comparison of the crime committed and sentence imposed does not lead under the circumstances of this case to an inference of significant or gross disproportionality. Unlike Helm, the defendant in this case had committed prior serious felonies that carried significant potential for violence and his sentence provided for the possibility of parole. He had repeatedly committed offenses while out on bail and showed no signs of reforming his conduct. We do not find that the defendant's sentence constitutes cruel and unusual punishment within the meaning of the Eighth Amendment of the United States Constitution. (Cf. People v. Goodwin, supra, 59 Cal.App.4th at p. 1094; People v. Cooper, supra, 43 Cal.App.4th at pp. 820-825.)
People v. Nguyen, No H020055, slip op at 9-16 (Cal Ct App. Feb 2, 2001) (Respt Exh 9).

  The Supreme Court recently made clear that "the only relevant clearly established law amenable to the `contrary to' or `unreasonable application of framework [in 28 U.S.C. S 2254(4)(1)] is the gross disproportionality principle, the precise contours of which are unclear, applicable only in the `exceedingly rare' and "extreme" case." Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (citations omitted). The Court also made clear that in conducting a gross disproportionality review, "we must place on the scales not only [petitioner's] current felon[ies], but also his * * * history of felony recidivism." Ewing v. California, 538 U.S. 11, 29 (2003).

  The California court of appeal's decision affirming petitioner's sentence was neither contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d). The court of appeal properly relied on the potential for harm or violence created by petitioner in committing his current and prior offenses, as well as petitioner's criminal recidivist criminal conduct while out on bail, in determining that his sentence was not grossly disproportionate. See id; Andrade, 538 US at 72-74; Rummel v Eatelle, 445 U.S. 263, 276 (1980). And, in light of the nature and extent of petitioner's history of felony recidivism, which includes prior burglary convictions, it certainly cannot be said that it was objectively unreasonable" for the California court of appeal to affirm petitioner's sentence. Cf Andrade, 538 US at 62 (upholding sentence of two consecutive terms of 25 years to life for recidivist convicted of stealing videotapes worth $150); Ewina, 538 US at 27-31 (upholding sentence of 25 years to life for recidivist convicted of shoplifting three golf clubs worth $1,200). Petitioner is not entitled to federal habeas relief on his Eighth Amendment claim. See 28 U.S.C. S 2254(d).

  IV

  For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.

  The clerk shall enter judgment in favor of respondent, terminate all pending motions as moot (see, e g. Doc # 24) and close the file.

  IT IS SO ORDERED.


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