The opinion of the court was delivered by: JEFFREY WHITE, District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING
PETITIONER'S PENDING MOTIONS
Petitioner, a state prisoner incarcerated at the California
Medical Facility at Vacaville, filed a pro se petition on
September 19, 2002, for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. On March 24, 2003, this Court ordered Respondent
to show cause why the writ should not be granted (docket no. 6).
On July 10, 2003, Respondent filed an answer to the petition
(docket no. 13). Petitioner filed a traverse on July 25, 2003
(docket no. 19). This order denies the petition for a writ of
habeas corpus on the merits.
Petitioner was convicted by a Santa Clara County jury of two
counts of first degree burglary under California Penal Code
sections 459 and 460, subdivision (A). (Clerk Tr. 586-88, 592.)
The jury found that Petitioner suffered ten prior strike
convictions for prior residential burglaries under California
Penal Code sections 667(b)-(I) and 1170.12. (Clerk Tr. 589-94.)
The trial court denied probation and sentenced Petitioner to eight five-year prior serious felony conviction
enhancements and two consecutive terms of twenty-five
years-to-life pursuant to the Three Strikes Law, amounting to a
total of ninety years to life. (Clerk Tr. 664-66.) On direct
appeal, the California Court of Appeal, Sixth Appellate District,
affirmed the conviction. The California Supreme Court denied
review on June 12, 2002. Petitioner sought habeas corpus relief
from the state courts. On November 26, 2002, the California
Supreme Court denied his state habeas petition.
The facts underlying the commitment offense, as found by the
Court of Appeal of the State of California, Sixth Appellate
District, are summarized below as follows:
Linda Marsh returned to her home one afternoon at
approximately 2:00 p.m. [on November 8, 1997]. She
saw a Black man 18 feet away from her carrying
something wrapped in her flannel nightshirt under his
left arm. When the two passed each other they
exchanged "hellos." Marsh reached her front door and
saw that the door was open. She entered her home and
saw that her VCR was missing. She also saw that her
second VCR had been disconnected, dresser drawers
were open, and a screen had been removed from the
master bedroom window. At the police station, Marsh
identified from a photo lineup a person whom she
though was the one she had seen outside her home. The
photo was not of defendant, and Marsh was only 80
percent certain of the identification. Fingerprints
removed from the screen and a windowsill matched
defendant's fingerprints. At the preliminary hearing,
Marsh immediately recognized defendant as the man she
had seen outside her home. She so testified. And she
again identified defendant at trial.
[On December 1, 1997,] Police officers responded to a
call from neighbors and saw defendant exit Tim Weir's
residence carrying a television, VCR, and electronic
devices. They apprehended defendant after a chase.
They found defendant's fingerprints on a removed
window screen and a windowsill.
On January 28, 1999, the trial court appointed Dr.
Rudolph Cook, Ph.D. to examine defendant pursuant to
section 1368. On February 17, Dr. Cook filed his
report, which opined that defendant was competent to
stand trial. The trial court found defendant
competent to stand trial.
During trial on October 12, 1999, the trial court
called a hearing outside the presence of the jury to
determine whether defendant was able to continue
given that defendant had caused delays by indicating
that he was too sick to continue. It called Efren
Garza as a witness.
Garza indicated the following: he was the nurse
manager of the main jail health services; he was
involved in defendant's health care; his duties
included overseeing that defendant obtained several
medications, primarily diabetes medication; he asked
Dr. William Estrin, the medical doctor for the main
jail health services, to examine defendant because
defendant, who suffered from AIDS, believed that he
had pneumonia; Dr. Estrin reported that defendant had
a slight amount of fluid in his left ear and prescribed
Defendant objected to Garza's testimony as hearsay to
the extent that Garza related what Dr. Estrin had
said to him or written in a report. The trial court
remarked: "I think we can have the doctor over. I was
told that he had obviously patients to see in the
jail and I was in the hopes that the supervisor could
testify." It sustained the objection. After more
foundation as to Garza's qualifications as an expert,
the trial court indicated that it would admit the
evidence over defendant's objection. During the
colloquy, defendant argued that, if the trial court
admitted the evidence, he was entitled to call Dr.
Estrin as a witness. The trial court inquired whether
defendant had contacted Dr. Estrin, and defendant
offered that he had not done so. The trial court then
overruled the objection.
The trial court asked defense counsel whether
defendant could continue. Defense counsel then moved
for a competency hearing pursuant to section 1368.
The trial court convened an in camera hearing in
chambers. Trial counsel stated that defendant's
demeanor had changed in the last couple of months to
evince a preoccupation with the idea that the federal
courts would order his release and he, defendant,
would sue the state, county, district attorney, and
alternate public defender for a conspiracy to violate
his federal constitutional rights. He added that
defendant had asked him to file numerous motions in
federal court, some of which counsel had advanced in
the in limine proceedings. He also noted that
defendant had become less cooperative in recent weeks
and expressed a belief that he, defendant, was not
being given his proper medication in jail. He
indicated that defendant was moaning during the
testimony of Garza. He opined that defendant was
suffering from AIDS-related dementia, was delusional,
and was not competent to stand trial.
The trial court reconvened in the courtroom and
denied the motion. It explained: "This case has been
pending since December 1, 1997. Approximately 50 days
have elapsed since the case has been filed and the
defendant arrested. And the case was assigned to this
department on September 29, 1999, this year. Since
the trial started, the Court has had an opportunity
to review the written materials filed by the
defendant himself and has exchanged comments with the
defendant in making rulings on the motions filed. The
Court has observed the defendant during the time
since the case was assigned to this department. The
Court has noted the defendant to be alert and active
and participating in the trial and vitally interested
in the legal issues that were presented by this case.
The Court today heard medical testimony regarding two
referrals of the defendant to Health Services at the
county jail on the 5th of October and again on
the 12th of October. The testimony indicated in
each case the defendant exhibited no confirmation of
his articulation of his mental medical problems
excuse me. And so the Court believes that at this
point there is no medical reason why the defendant
cannot continue with the trial. Further on the
reasons in the Court's thought process concerning the
1368 request, the defendant was referred pursuant to
Penal Code section 1368 early this year, and in a
report prepared by Dr. Cook was found to be competent
on February 17, 1999. No reasons were disclosed
during the in-camera proceedings as to why any
circumstances have changed since that report was
issued. And in reviewing the report by Dr. Cook, the
Court could find no reason to believe that the
defendant was not competent then and again is not
competent now. During the trial, has gone on since
the beginning, the Court has observed the defendant
taking an active role in the selection of the jury
and has noticed exchange of information between the
defense attorney and the defendant and believes that
the defendant is active in his participation in this
case. For those reasons, the Court is making its own
observations in this matter, finds the necessity for
a referral pursuant to Penal Code section 1368 simply
is lacking based on the Court's observations. And I
will deny the request based on those observations as
articulated at this time."
Defense counsel then noted that defendant's arms were
folded on the table, defendant's head was on the
table, and defendant appeared unable to communicate.
He again requested a section 1368 hearing, arguing
that he presented substantial evidence of doubt. The
trial court indicated that it would rely on the
previous ruling, called the jury into the courtroom,
and took a brief recess. When the jury was seated,
defendant said to the jury words to the effect that
"They won't let me see a doctor, they're fabricating
evidence against me, they're trying to kill me,
they're denying me my rights, they're trying to send
me to prison for 150 years, please help me."
When the trial court returned and learned what had
happened, it excused the jury. It then admonished
defendant and warned that it would order him to a
holding cell if he continued to disrupt the
proceedings. It then called Dr. Estrin as a witness.
Dr. Estrin indicated that he had examined defendant
that morning for pneumonia and found a slight bulge
in the eardrum and prescribed medication. He also
indicated that defendant complained of fatigue. He
further stated that defendant was alert and
articulate and evinced no mental impairment. The
trial court then reaffirmed the denial of defendant's
section 1368 motion.
The trial court called back the jury. When the jury
was seated, defendant exclaimed: "The Court has
refused to let me see a doctor again. They will not
give me medical treatment." He added: "I'm denied all
my rights. I am sitting here sick and I am dying." He
concluded: "They're trying to send me to jail for 100
years to life. They're trying to kill me for no
reason. I need to see a doctor. They won't let me see
a doctor. I hate you." The trial court ordered
defendant removed from the courtroom. It turned on
the holding cell monitor so defendant could listen to
(Resp. Exh. B.4) (People v. Holmes, No. H021031, slip op. at 2,
5-8 (Cal.Ct.App., March 14, 2002.))
This Court may entertain a petition for a writ of habeas corpus
"in behalf of a person in custody pursuant to the judgment of a
state court only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a). The petition 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." Id. § 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
Supreme Court has on a set of materially indistinguishable facts.
Williams v. Taylor, 529 U.S. 362, 413 (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 Supreme Court's decision but
unreasonably applies that principle to the facts of the
prisoner's case. Id. As summarized by the Ninth Circuit: "A
state court's decision can involve an `unreasonable application'
of federal law if it either 1) correctly identifies the governing
rule but then applies it to a new set of facts in a way that is
objectively unreasonable, or 2) extends or fails to extend a
clearly established legal principle to a new context in a way
that is objectively unreasonable." Van Tran v. Lindsey,
212 F.3d 1143, 1150 (9th Cir. 2000) (citing Williams,
529 U.S. at 405-07), overruled in part on other grounds by Lockyer v.
Andrade, 538 U.S. 63 (2003).
"[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." Williams, 529 U.S. at 411; accord
Middleton v. McNeil, 541 U.S. 433, 436 (2004) (per curiam)
(challenge to state court's application of governing federal law
must be not only erroneous, but objectively unreasonable);
Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam)
("unreasonable" application of law is not equivalent to
"incorrect" application of law).
In deciding whether the state court's decision is contrary to,
or an unreasonable application of clearly established federal
law, a federal court looks to the decision of the highest state
court to address the merits of a petitioner's claim in a reasoned
decision. LaJoie v. Thompson, 217 F.3d 663, 669 n. 7 (9th Cir. 2000).
Where the state court gives no reasoned explanation of its
decision on a petitioner's federal claim and there is no reasoned
lower court decision on the claim, there is a somewhat different
standard of review under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). In such a case, a review of the
record is the only means of deciding whether the state court's
decision was objectively reasonable. See Himes v. Thompson,
336 F.3d 848, 853 (9th Cir. 2003); Greene v. Lambert,
288 F.3d 1081, 1088 (9th Cir. 2002); Bailey v. Newland, 263 F.3d 1022,
1028 (9th Cir. 2001); Delgado v. Lewis, 223 F.3d 976, 982 (9th
The federal court need not otherwise defer to the state court
decision under AEDPA: "A state court's decision on the merits
concerning a question of law is, and should be, afforded respect.
If there is no such decision on the merits, however, there is
nothing to which to defer." Greene, 288 F.3d at 1089. In sum,
"while we are not required to defer to a state court's decision
when that court gives us nothing to defer to, we must still focus
primarily on Supreme Court cases in deciding whether the state
court's resolution of the case constituted an unreasonable
application of clearly established federal law." Fisher v. Roe,
263 F.3d 906, 914 (9th Cir. 2001), abrogated on other grounds by
Mancuso v. Olivarez, 292 F.3d 939, 944 n. 1 (9th Cir. 2002).
A summary decision by a state court does not "implicitly" make
any factual findings in support of the decision. Id. at 913.
I. California's Application of the Three Strikes Law
Petitioner contends that California's application of the Three
Strikes law violates the Double Jeopardy and Ex Post Facto
clauses of the Constitution. Petitioner further asserts that the
Three Strikes law violates the constitutional guarantees of
separation of powers, due process, and protection from cruel and
unusual punishment. Petitioner also challenges the Three Strikes law as overbroad.
The California Supreme Court did not issue a reasoned decision
on its summary denial of Petitioner's challenges to the Three
Strikes law presented in his habeas petition. Because there is no
reasoned explanation of the State court's decision, the Court
must review the record independently to determine whether the
State court's decision was objectively reasonable. See Himes,
336 F.3d at 853.
A. Double Jeopardy Clause
In his first claim, Petitioner contends that the Three Strikes
law violates the Double Jeopardy Clause and the doctrine of
collateral estoppel "by using the factual case information
earlier adjudicated." (Pet. 3(b).) The constitutional guarantee
against double jeopardy includes the concept of collateral
estoppel. See Ashe v. Swenson, 397 U.S. 436, 445 (1970);
United States v. James, 109 F.3d 597, 600 (9th Cir. 1997);
Newton v. Superior Court of California, 803 F.2d 1051, 1057
(9th Cir. 1986), cert. denied, 481 U.S. 1070 (1987).
With regard to this claim, both the Supreme Court as well as
the Ninth Circuit Court of Appeals have found that the use of
prior convictions to enhance sentences for subsequent convictions
does not violate the Double Jeopardy Clause. See Spencer v.
Texas, 385 U.S. 554, 560 (1967) (upholding use of prior
convictions to enhance sentences for subsequent convictions even
if in a sense defendant must relitigate in sentencing proceeding
conduct for which he was already tried). Any such challenge is
wholly without merit. See Jackson v. Nelson, 435 F.2d 553, 553
(9th Cir. 1971) (dismissing contentions of equal protection, bill
of attainder, double jeopardy and ex post facto against
recidivist statute as meritless). Accordingly, the California
Supreme Court's denial of this claim was not contrary to, or an
unreasonable application of, clearly established federal law, and
therefore must be denied. B. Ex Post Facto Clauses
In his second claim, Petitioner argues that "[t]he 3-strikes
law has aggravated [Petitioner's] past prior offenses and made
them greater than they were when he was first convicted of them"
in violation of the Ex Post Facto Clause. (Pet. 16.)
The United States Constitution prohibits the federal government
and the states from passing any "ex post facto Law." U.S. Const.,
Art. I, § 9, cl. 3 (federal government); Art. I, § 10, cl. 1
(states). These clauses prohibit the government from enacting
laws with certain retroactive effects: any law that (1) makes an
act done before the passing of the law, which was innocent when
done, criminal; (2) aggravates a crime or makes it greater than
it was when it was committed; (3) changes the punishment and
inflicts a greater punishment for the crime than the punishment
authorized by law when the crime was committed; or (4) alters the
legal rules of evidence and requires less or different testimony
to convict the defendant than was required at the time the crime
was committed. See Stogner v. California, 539 U.S. 607, 611-12
(2003) (citing Calder v. Bull, 3 Dall. 386 (1798)); Carmell v.
Texas, 529 U.S. 513, 519-538 (2000) (discussing Collins v.
Youngblood, 497 U.S. 37 (1990), Beazell v. Ohio, 269 U.S. 167,
169-70 (1925) and Calder v. Bull, 3 Dall. 386 (1798)). The Ex
Post Facto Clauses are designed to prevent manifestly unjust and
oppressive retroactive effects. Stogner, 539 U.S. at 610-11.
The state's application of an enhancement due to a prior
conviction is not a violation of the Ex Post Facto Clause of the
United States Constitution. See McDonald v. Massachusetts,
180 U.S. 311, 312-13 (1901); Fong v. United States, 287 F.2d 525,
526 (9th Cir.), cert. denied, 366 U.S. 971 (1961); see also
United States v. Sorenson, 914 F.2d 173, 174 (9th Cir. 1990)
(dismissing ex post facto challenge as meritless), cert.
denied, 498 U.S. 1099 (1991). The enhancement is not a penalty
for the prior offense. See McDonald, 180 U.S. at 312-13. It is
the repetitive nature of the present offense that the enhancement punishes. See id. "The statute, imposing a
punishment on none but future crimes, is not ex post facto."
Id. at 313 (emphasis in original). Therefore, the California
Supreme Court's decision denying this claim was not contrary to,
or an unreasonable application of, clearly established federal
law, and this claim must be denied.
In support of his third claim, Petitioner argues that by
enacting the Three Strikes law, "[t]he legislative branch has
mandated that the prosecution charge all known prior felony
convictions in both subdivisions (f)(1) and (g) of penal code
section 667," and has extended into the charging function of the
state's executive branch, in violation of the separation of
powers doctrine. (Pet. at 22.)
A writ of habeas corpus is available under § 2254(a) "only on
the basis of some transgression of federal law binding on the
state courts." Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir.
1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)), cert.
denied, 478 U.S. 1021 (1986). It is unavailable for violations
of state law or for alleged error in the interpretation or
application of state law. Estelle v. McGuire, 502 U.S. 62,
67-68 (1991); Engle, 456 U.S. at 119; Peltier v. Wright,
15 F.3d 860, 861-62 (9th Cir. 1994).
Petitioner's claim that California's Three Strikes law violates
separation of powers between the California executive and
legislative branches of governm ent is a state law claim that is
not cognizable in a federal petition for a writ of habeas corpus.
Accordingly, this claim is denied.
In his fourth claim, Petitioner contends that "the state
created a protected liberty interest . . . in the statute of
limitations laws annexed to those past convictions" of the
enhancement offenses, and that the sentence enhancement for those
prior convictions violated his due process rights. (Pet. 25-27.) This claim is
premised on the incorrect assumption that the sentence
enhancement punishes his prior offenses. An enhancement for a
prior offense is not a penalty for the prior offense, but rather
for the current offense. See Nichols v. United States,
511 U.S. 738, 747 (1994); McDonald v. Massachusetts, 180 U.S. 311,
312-13 (1901). Specifically, it is the repetitive nature of the
current offense that the enhancement punishes. See id. In sum,
the use of a prior conviction to enhance a sentence is not an
"`additional penalty for the earlier crimes' but `a stiffened
penalty for the latest crime, which is considered to be an
aggravated offense because a repetitive one." Monge v.
California, 524 U.S. 721, 728 (1998) (quoting Gryger v. Burke,
334 U.S. 728, 732 (1948)). Consequently, the enhancement of
Petitioner's sentence is not punishment for his having committed
the prior offenses for which he was convicted, but rather for his
commission of new offenses thereafter, in other words,
recidivism. Because Petitioner is not being punished for his
prior convictions, his sentence does not violate any protected
liberty interest with respect to those convictions.
Petitioner further contends that he had "no fair notice," at
the time of his earlier plea agreements, that those convictions
"could in the future be aggravated." (Pet. 26.) Petitioner argues
that his prior plea agreements for his prior convictions created
a "due process `liberty interest' that is entitled to minimum
procedural protection." Id. at 27-28. While due process
requires that a defendant be informed of all the direct
consequences of a guilty plea, see Brady v. United States,
397 U.S. 742, 749 (1970); United States v. Neely, 38 F.3d 458, 461
(9th Cir. 1994), there is no violation of due process where a
trial court fails to inform him or her of collateral
consequences. See Torrey v. Estelle, 842 F.2d 234, 235 (9th
Cir. 1988). Because the potential for enhancement in the future
is a collateral consequence of the plea, due process did not
require that Petitioner be advised of the possibility that a
future sentence for a future conviction could be enhanced.
United States v. Garrett, 680 F.2d 64, 65-66 (9th Cir. 1982).
Accordingly, the fact that Petitioner pled guilty to his earlier offenses without knowing
that those convictions could later be used to enhance his
sentence on a future conviction does not violate due process.
Petitioner further argues that pursuant to the plea agreements,
the state agreed to a specific sentence for those prior offenses,
and breaches those plea agreements "by giving him greater
punishment on his prior convictions than the agreement stated."
(Pet. 27.) As discussed above, the enhancement does not alter or
increase Petitioner's sentence for the prior convictions because
such enhancement is not punishment for his prior offenses, but
rather his current ones. Consequently, the enhancement of
Petitioner's current sentence does not breach any agreements
pertaining to the sentence on his prior convictions. The
California Supreme Court's decision denying this claim was not
contrary to, or an unreasonable application of, clearly
established federal law. Petitioner's due process claim must be
E. Cruel and Unusual Punishment
In his fifth claim for habeas relief, Petitioner argues that
his enhanced sentence of "[t]wo 25-years-to-life sentences, plus
40 years is plainly unreasonable for the offenses committed,
which are non-violent offense of burglary," and amounts to cruel
and unusual punishment in violation of the Eighth Amendment.
(Pet. 31.) Petitioner states that his sentence requires him to
serve at least fifty years before becoming eligible for parole.
Id. at 33. Petitioner identifies himself as an HIV-positive
inmate, and characterizes his sentence "as a death sentence
mandated for him to die in prison, and or the equivalent of a
life sentence without the possibility of ever achieving parole."
Id. Petitioner argues that the harshness of his sentence is
grossly disproportionate to the non-violent nature of his crimes.
Id. at 35 (citing Solem v. Helm, 463 U.S. 277 (1983)).
The Eight Amendment forbids only extreme sentences which are
grossly disproportionate to the crime. See Harmelin v.
Michigan, 501 U.S. 957, 997-1001 (1991). In judging the appropriateness of a sentence under a
recidivist statute, a court may take into account the
government's interest not only in punishing the offense of
conviction, but also its interest "`in dealing in a harsher
manner with those who [are] repeat criminal[s].'" United
States v. Bland, 961 F.2d 123, 129 (9th Cir. 1992) (quoting
Rummel v. Estelle, 445 U.S. 263, 276 (1980)).
The Eighth Amendment does not preclude a state from making a
judgment that protecting the public safety requires
incapacitating criminals who have already been convicted of at
least one serious or violent crime, as may occur in a sentencing
scheme that imposes longer terms on recidivists. Ewing v.
California, 538 U.S. 11, 25 (2003) (upholding 25 year-to-life
sentence for recidivist convicted of grand theft); Rummel,
445 U.S. at 284-85 (upholding life sentence with possibility of
parole for recidivist convicted of fraudulent use of credit card
for $80, passing forged check for $28.36 and obtaining $120.75
under false pretenses); Bland, 961 F.2d at 128-29 (upholding
life sentence without the possibility of parole for being a felon
in possession of a firearm with thirteen prior violent felony
convictions, including rape and assault); Alford v. Rolfs,
867 F.2d 1216, 1221-23 (9th Cir. 1989) (upholding life sentence with
possibility of parole for possession of stolen property worth
$17,000 and having three prior non-violent convictions, including
possession of a controlled substance and forgery).
The jury found true the allegations of Petitioner's ten prior
convictions for residential burglaries, charged as strikes, and
eight prior serious felony convictions for purposes of five-year
enhancements. (Rep. Tr. 512-21; 554-56; 589-94.) At the time of
sentencing, the state prosecutor presented the Superior Court
with Petitioner's prior criminal history:
1973 Residential Burglary county jail
1975 Commercial Burglary county jail
1975 Grand Theft county jail
1976 Auto Burglary county jail 1976 Grand Theft Person county jail
1979 Residential Burglary county jail
1980 Residential Burglary three yrs state prison
1982 Residential Burglary three yrs state prison
1986 Residential Burglary x 2 seven yrs, four mo.
1987 Residential Burglary x 3 eight mos.state
prison consecutive to
1992 Residential Burglary nine years state
prison; only one of seven possible enhancement priors
(Clerk Tr. 625 (People's Sentencing Memorandum and Response to
Defendant's Motion to Dismiss Prior Strike Convictions at 7)).
Although Petitioner characterizes these offenses as
non-violent, the state considers burglary of a residence to be
"`so inherently dangerous that persons who repeatedly commit this
type of offense should be punished as harshly as violent
recidivists.'" (Clerk Tr. 620 (People's Sentencing Memorandum at
2 (citing People v. Cruz, 13 Cal.4th 764, 773 (1996)); Rep. Tr.
568.) The Superior Court stated at sentencing that an act of
residential burglary "is incredibly violent toward the personal
freedoms and living space of the victim of those crimes." (Rep.
Tr. 570-71.) The Superior Court therefore denied probation and
sentenced Petitioner to the term of twenty-five years to life for
each count of burglary, and an enhancement of forty years
pursuant to sections 667(A) and ...