The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER REJECTING REPORT & RECOMMENDATION AND DENYING HABEAS PETITION SECRETARY OF THE CALIFORNIA [Dkt No. 5]
Jose Ramon Sandoval ("Sandoval" or "Petitioner"), proceeding pro se with his 28 U.S.C. § 2254 habeas corpus petition, asserts one ground for relief, alleging the trial judge at his December 2, 2003 sentencing infringed his due process rights by imposing an eight-year upper term sentence for his forcible rape conviction, for a total sentence of 12 years, in violation of Blakely v. Washington, 542 U.S. 296 (2004). He alleges "the trial court improperly relied upon facts neither admitted by Sandoval nor found by a jury." Pet. 4:20-22. He seeks habeas relief in the form of release from custody, or either "(a) a new trial on the aggravating factors for imposition of an upper term, or (b) in the interests of judicial economy, immediately resentence SANDOVAL to the middle term of 6 years, for an aggregate sentence of 10 years." Pet. 6:25-7:1.
Respondent argues Sandoval's claim is rendered unexhausted by Cunningham v. California, -- U.S. --, 127 S.Ct. 856 (Jan. 27, 2007), purportedly casting his Blakely claim in a fundamentally different light than existed at the time he initially exhausted the claim in the state courts. The Cunningham Court held California's determinate sentencing law ("DSL") violated the Sixth Amendment because it allowed sentencing courts to impose an elevated term based on aggravating factors judges found to exist by a preponderance of the evidence. That case also construed the "statutory maximum" sentence to be the middle term, from which a court may upwardly depart only on findings beyond a reasonable doubt of aggravating facts beyond the elements of the offense, or in consideration of additional facts admitted by the defendant. Id. at 862.
Respondent suggests the federal Petition be held in abeyance and any decision be stayed to allow Sandoval to present his Blakely claim again in state court for reevaluation in consideration of Cunningham.*fn1 Alternatively, Respondent argues the Petition should be denied, notwithstanding Sandoval's purported failure to exhaust his state court remedies as Respondent construes them, contending: relief is precluded by Teague v. Lane, 489 U.S. 288 (1989) (non-retroactivity of new rules of criminal procedure); the state court's adjudication of the claim was objectively reasonable, and did not violate the Cunningham rule (assuming retroactivity); and any error was harmless.*fn2 Ans. P&A pp. 2:12-14, 5-14; see R&R 2:1-7, 6:1-7, 11:7-11. Sandoval filed no Traverse.
This matter is before the court on the Report and Recommendation ("R&R") of Magistrate Judge Jan M. Adler. The R&R frames the "dispositive issue" as whether Cunningham applies retroactively within the meaning of Teague, 489 U.S. at 299-316 (holding although a "new rule" of substantive criminal law ordinarily will be applied retroactively to cases which have already become final, a "new rule" of criminal procedure may be applied retroactively on collateral review only if it falls within one of two narrow exceptions). R&R 2:8-9. The R&R recommends the court find "it is unable to either grant or deny habeas relief at this time irrespective of the Teague analysis" because, adopting Respondent's view, "state court remedies remain available" to Sandoval. R&R 2:8-12, 17:9-16 ("it is not 'perfectly clear' that Petitioner 'has no chance of obtaining relief' due to a Teague bar, under section 2254(d), or under the harmless error doctrine. . . ."); see R&R 11:16-19 ("the Court is precluded at this time from finding that 'it is perfectly clear that Petitioner has no chance of obtaining relief' as to his claim," so that "without adjudicating the merits of the claim at this time, the Court finds that it may not deny the Petition while state court remedies remain available to Petitioner"). Neither party filed Objections to the R&R.
This court approaches the issues somewhat differently, and with the benefit of clarifying authority decided subsequent to the R&R. In particular, it finds the prior conviction factor Sandoval's sentencing court relied on to impose the upper term for the rape conviction was sufficient to support that result without raising any constitutional or federal law issue, standing alone and irrespective of any other factors recited on the record. Moreover, even reaching a Teague analysis, it is now sufficiently clear to this court Cunningham announces a new rule of criminal procedure, but one that has not been and will not be applied retroactively. For all the reasons discussed below, the R&R is REJECTED and the Petition is DENIED on the merits.
As part of a plea bargain, Sandoval pled guilty to one count of forcible rape and admitted a weapon use allegation (Pen. Code §§ 261(a)(2), 12022.3(a)) after the jury was unable to reach a verdict on the rape charge and after the court denied his motion to withdraw his plea. He acknowledged he could receive a sentence of up to eighteen years in prison. The court agreed not to impose the maximum term on the enhancement and agreed to dismiss charges in another case. Lodg. 1 at CT 5-6, 80-82. At Sandoval's sentencing, the court recited the aggravating factors it considered in imposing the upper term of eight years for the rape conviction:
With respect to the appropriate sentence that might be imposed by the court in this case, as to the PC261(a)(2) charge, the court imposes the upper term of eight years. I do so taking into account 421(a)(3), the victim was vulnerable given the circumstances. I don't give that circumstance great weight. . . . His prior convictions are numerous and of increasing seriousness. He has a significant criminal history. Over the course of not many years the defendant sustained a number of convictions: BC23152 in '92. He was revoked several times in that matter. In '93, VC10852. In '93 again, VC10851, felony matter. In '94 PC 48789 matter. '94, an escape, another felony case pursuant to Penal Code Section 4532(b). And then ultimately this offense.
The defendant has violated the law on a number of occasions. He has served separate prison terms pursuant to 4.421(b)(3). I take that into account. 4.421(b)(5), his past performance on probation was unsatisfactory. In his prior matters he had been, as referenced, revoked a number of times. Under 4.408(a) the defendant did flee to avoid prosecution of this matter . . . . . . .
Taking all of those things into account, I put a lot of weight in the criminal history, on the facts and circumstances of this particular case, I believe the eight-year term, upper term, is appropriate. . . .
Lodg. 3, RT at 957-958 (emphasis added).
The procedural history of Sandoval's case, as intertwined with pertinent evolving legal standards before and after his sentencing, is as follows:
June 26, 2000 The United States Supreme Court decides Apprendi v. New Jersey, 530 U.S. 466 (2000), expanding Sixth Amendment jurisprudence to extend a defendant's right to trial by jury, under the beyond-a-reasonable-doubt standard regarding the elements of the crime, to the fact-finding determinations used to enhance sentences. "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 491-97 (emphasis added) (holding a defendant's constitutional rights are violated when a judge imposes a sentence greater than the maximum he or she could have imposed under state law without the factual finding defendant challenges having been decided by the jury or admitted by the defendant). As clarified in Blakely, "[t]he 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely v. Washington, 542 U.S. 296, 303 (2004), citing Ring v. Arizona, 536 U.S. 584, 602 (2002).
December 2, 2003 Sandoval's trial court sentences him to the upper term of 8 years for the rape conviction plus the presumptive middle term of 4 years for the use of knife allegation. Lodg. 3 p. 958. The court recites as the justification for imposing the 8-year upper term his having taken into account: "the victim was vulnerable given the circumstances," although the judge states "I don't give that circumstance great weight;" "his prior convictions are numerous and of increasing seriousness;" "he has a significant criminal history;" "over the course of not many years the defendant sustained a number of convictions" between 1992 and 1994; "he was revoked several times" in one of the matters, escaped in another felony case; he "did flee to avoid prosecution of this matter;" and "there was planning involved and some level of sophistication involved as this crime was carried out," including "the use of the duct tape, [and] the fact that he went in ready, willing, and able to use the knife." Lodg. 3, pp. 957-58 (emphasis added).
June 24, 2004 The United State Supreme Court decides Blakely v. Washington, 542 U.S. 296, 303-04 (2004) (holding "the relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings," and "[w]hen a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts 'which the law makes essential to the punishment, . . . and the judge exceeds his proper authority").
January 12, 2005 The United States Supreme Court decides United States v. Booker, 543 U.S. 220 (2005), applying the Blakely holding to find the federal Sentencing Guidelines violate the Sixth Amendment because they imposed mandatory sentencing ranges based on factual findings made by the sentencing court rather than by a jury applying the beyond-a-reasonable-doubt standard. Booker, 543 U.S. at 243-440. Reaffirming Apprendi, the Court held: "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Booker, 543 U.S. at 244 (emphasis added).
March 15, 2005 California Court of Appeal, in a two-to-one decision, affirmed Sandoval's conviction but remanded for resentencing, on grounds the trial court relied on six aggravating factors in support of its imposition of the upper term, only one of which (i.e., Sandoval's prior convictions and service of prior prison terms) could be properly decided by the judge under Apprendi and Blakely, opining that the trial court's other recited aggravating factors -- victim vulnerability, crime sophistication and planning, and flight to Mexico to evade prosecution -- required jury determinations beyond a reasonable doubt. Lodg. 7.
April 19, 2005 Sandoval petitioned the California Supreme Court for review.
June 8, 2005 Petition For Review granted, but further action deferred pending that court's consideration and disposition of a then-pending "related case," People v. Black, S126182. Lodg. 9.
September 7, 2005 California Supreme Court transfers the matter back to the Court of Appeal with directions to vacate its decision and to reconsider the cause in light of its People v. Black ("Black I"), 35 Cal. 4th 1238 (2005) decision. Lodg. 10.
October 21, 2005 On remand from the California Supreme Court, the Court of Appeal affirms Sandoval's sentence to the upper term for rape as not a violation of his right to a jury trial on the aggravating factors the trial court relied on, pursuant to the higher court's rejection of that argument in Black I, 35 Cal.4th at 1253-61, 1254 (holding "the upper term is the 'statutory maximum' and a trial court's imposition of an upper term sentence does not violate a defendant's right to a jury trial under the principles set forth in Apprendi, Blakely, and Booker"). Lodg. 11.
December 2, 2005 Sandoval files his Petition For Review of the remanded decision in the ...