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Juarez v. Adams

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


January 8, 2009

HUGO DE LEON JUAREZ, PETITIONER,
v.
DERRAL G. ADAMS, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable George H. Wu, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on January 23, 2007. The Petition asserted four grounds for relief:

(1) the trial court allegedly violated Due Process by using CALJIC 2.15, assertedly instructing that the jury could infer Petitioner was guilty of carjacking from the fact that Petitioner was in possession of stolen property (Petition, Ground One);

(2) the trial court allegedly erred in failing to give a voluntary intoxication instruction (Petition, Ground Two);

(3) the sentencing court allegedly violated the Constitution by:

(a) using the same facts to impose an upper term sentence and to impose a consecutive sentence on the gun use enhancement; and

(b) imposing an upper term sentence based on facts allegedly not found by the jury, assertedly in violation of Blakely v. Washington, 542 U.S. 296 (2004) ("Blakely") (Petition, Ground Three); and

(4) the California Court of Appeal erroneously failed to order a correction of the trial court's restitution order on remand (Petition, Ground Four).

Respondent filed an Answer on April 11, 2007, accompanied by a Memorandum of Points and Authorities ("Ans. Mem.") and lodged documents. Respondent asserted, inter alia, that Grounds Three and Four of the Petition were unexhausted, and that Ground Four of the Petition alleged only a claim of state law error not cognizable on federal habeas corpus. Petitioner filed a Reply on May 18, 2007. On June 14, 2007, the Court issued an order: (1) dismissing Ground Four of the Petition with prejudice; (2) requiring further exhaustion of Ground Three of the Petition; and (3) staying the Petition to allow Petitioner to exhaust Ground Three of the Petition.

On March 3, 2008, Petitioner filed a request that the stay be lifted. On April 1, 2008, Respondent filed a notice of non-opposition to Petitioner's request to lift the stay. On April 8, 2008, the Court issued a Minute Order lifting the stay and ordering Respondent to file a Supplemental Answer addressing the merits of Grounds One, Two and Three of the Petition. On July 9, 2008, Respondent filed a Supplemental Answer, accompanied by additional lodged documents.*fn1 On August 12, 2008, Petitioner filed a Supplemental Reply.

BACKGROUND

A jury convicted Petitioner of carjacking in violation of California Penal Code section 215(a), and found true the allegation that Petitioner personally used a firearm within the meaning of California Penal Code section 12022.53(b) (Reporter's Transcript ["R.T."] 173; Clerk's Transcript ["C.T."] 93-94). The court sentenced Petitioner to the upper term of nine years (R.T. 190-91; C.T. 104). The court imposed an additional consecutive ten-year sentence on the firearm enhancement pursuant to California Penal Code section 12022.53(b) (R.T. 191-92; C.T. 104-05).

On appeal, Petitioner raised his Blakely claim in a supplemental brief (see I Respondent's Lodgment 4). On November 16, 2004, the Court of Appeal ruled that Petitioner's upper term sentence violated Blakely, and that the Blakely error was not harmless (I Respondent's Lodgment 6, pp. 7-28; see also People v. Juarez, 21 Cal. Rptr. 3d 75, 80-91 (Cal. Ct. App. 2d Dist. 2004), rev. granted, 23 Cal. Rptr. 3d 692, 105 P.3d 113 (Cal. Jan. 19, 2005), transferred with directions to vacate, 34 Cal. Rptr. 3d 195, 119 P.3d 960 (Cal. Sept. 7, 2005), on remand, 2005 WL 3366962 (Cal. Ct. App. 2d Dist. Dec. 12, 2005)). The Court of Appeal remanded the case for resentencing, but otherwise affirmed the judgment (I Respondent's Lodgment 6; see also People v. Juarez, 21 Cal. Rptr. 3d at 80-91).*fn2

The State filed a petition for review (I Respondent's Lodgment 7). On January 19, 2005, the California Supreme Court granted review, but deferred further action "pending consideration of a related issue in People v. Black, S126182, and People v. Towne, S125677 . . . or pending further order of the court" (I Respondent's Lodgment 8).

On June 20, 2005, the California Supreme Court issued its decision in People v. Black, 35 Cal. 4th 1238, 29 Cal. Rptr. 3d 740, 113 P.3d 534 (2005), vacated, 127 S.Ct. 1210 (2007) ("Black"), holding that California's statutory scheme providing for the imposition of an upper term sentence did not violate the constitutional principles set forth in Blakely. On September 7, 2005, the California Supreme Court issued an order transferring Petitioner's case to the Court of Appeal "with directions to vacate and reconsider the cause in light of People v. Black . . . ." (I Respondent's Lodgment 9).

On December 12, 2005, the Court of Appeal issued an opinion affirming Petitioner's sentence (I Respondent's Lodgment 10). The Court of Appeal reasoned that it was bound by the California Supreme Court's decision in Black under principles of stare decisis.

On January 20, 2006, Petitioner filed a petition for review in the California Supreme Court (I Respondent's Lodgment 13).*fn3 On February 22, 2006, the California Supreme Court denied the petition for review "without prejudice to any relief to which defendant might be entitled after the United States Supreme Court determines in Cunningham v. California, No. 05-6551, the effect of Blakely v. Washington (2004) 542 U.S. 296 and United States v. Booker (2005) 543 U.S. 220, on California law" (Respondent's Lodgment 14).

On January 22, 2007, the United States Supreme Court issued its decision in Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856 (2007) ("Cunningham"). Cunningham held that a California judge's imposition of an upper term sentence based on facts found by the judge (other than the fact of a prior conviction) violates the constitutional principles set forth in Blakely. Cunningham expressly disapproved the holding and the reasoning of Black.

Petitioner filed a habeas petition in the California Supreme Court on July 23, 2007 containing his Blakely/Cunningham claim (II Respondent's Lodgment 3). On February 13, 2008, the California Supreme Court denied the petition "without prejudice to any relief to which petitioner might be entitled after this court decides In re Gomez, S155425: whether a habeas corpus petitioner whose conviction became final after Blakely v. Washington (2004) 542 U.S. 296 but before Cunningham v. California (2007) 549 U.S., 127 S.Ct. 856, is entitled to the benefit of the high court's decision in Blakely" (II Respondent's Lodgment 3).

FACTUAL BACKGROUND

The following factual summary is taken from the opinion of the California Court of Appeal in People v. Juarez, 2005 WL 3366962, at *1-2 (Cal. Ct. App. 2d Dist. Dec. 12, 2005). See Galvan v. Alaska Dep't of Corrections, 397 F.3d 1198, 1199 & n.1 (9th Cir. 2005) (taking factual summary from state appellate decision).

At the time of the incident at issue, the victim, Ryan Comstock, worked for Pizza Hut. Just before 8:00 p.m. one evening his employer sent him to deliver a pizza in Azusa. He parked his car in front of the customer's house. As he exited his car, Comstock saw a man standing across the street near a "light-colored pickup truck." The truck was not parked there when Comstock first drove down the street. Comstock would later identify this man as defendant Hugo Juarez.

As Comstock was standing next to the driver's side door of his car, Juarez approached. Juarez was holding a silver automatic handgun which was level with his waist and was pointed at Comstock. Juarez ordered Comstock to get down on the ground. Comstock got on his hands and knees in the street after Juarez pushed him down. Comstock felt afraid.

Juarez asked Comstock for the keys to the car. Comstock said the keys were in the ignition. Comstock saw Juarez get in the car, start the ignition and drive away. The light-colored pickup truck took off in the opposite direction. Comstock got up and went to the door of the customer's house. The customer allowed Comstock to enter the house and call the police.

Three days after the incident, the police located Comstock's car at a mobile home park in Palm Springs. Juarez and another man were sitting in the car at the time. A white pickup truck was parked nearby. A detective who searched Comstock's car found a backpack in the trunk which contained items belonging to Juarez. A couple of days later, another detective searched Juarez's wallet and found a business card from a Pep Boys store in the City of Covina.

The police contacted Comstock and told him they had located his car. Five days after the incident, Comstock went to Palm Springs to pick up his car. When he got there, he met with a detective, who showed him a six-pack of photographs. Comstock immediately identified Juarez as the man who took his car.

Juarez testified at trial. In August 2002, he was living in Cathedral City near Palm Springs. He was unemployed and had been asked to vacate his apartment because he could not afford to pay the rent. On August 24, the day of the incident, he planned to drive to his uncle's house in La Puente and see if he could stay there until he found a job.

On the way to La Puente, Juarez's car (a Cadillac) broke down. He dropped it off at a Pep Boys store in Covina. An employee there gave him a Pep Boys business card. Juarez said he "was desperate" because he had no job, no place to live and no money to send to his family.*fn4 So he walked to a store and bought a six-pack of beer. He started drinking the beer*fn5 and then he walked "for a long time." He did not have a gun on him.

Juarez came upon a car with its windows down. He said the car "caught [his] attention because [he] didn't have a car to get back home." There was no one near the car. Juarez decided to take it. With a chrome-colored beer can still in his hand, Juarez got in the car. He saw the keys were in the ignition. He "took off right away."

Juarez drove the car to Cathedral City because he "did not want to create problems for [his] uncle" by bringing a stolen car to the house. He planned to look for construction work and to use the car to drive to job sites.

(I Respondent's Lodgment 10, pp. 2-4; People v. Juarez, 2005 WL 3366962, at *1-2 (original footnotes; footnotes renumbered).

STANDARD OF REVIEW

A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the 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) (as amended); see also Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision. Lockyer v. Andrade, 538 U.S. 63 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts. . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.

Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).

A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).

"In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Davis v. Woodford, 384 F.3d 629, 637-38 (9th Cir. 2004).

In applying these standards, this Court looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Where no such reasoned opinion exists, as where a state court rejected a claim in an unreasoned order, this Court must conduct an independent review to determine whether the decisions were contrary to, or involved an unreasonable application of, "clearly established" Supreme Court precedent. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).

DISCUSSION

For the reasons discussed below, the Court should grant habeas relief on Petitioner's claim that his sentence violated Blakely and Cunningham. The Court otherwise should deny the Petition on the merits with prejudice.

I. Petitioner's Challenge to the Trial Court's Use of CALJIC 2.15 Does Not Merit Habeas Relief

In California, carjacking is the "felonious taking of a motor vehicle in the possession of another, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." Cal. Penal Code § 215(a); see also People v. Hill, 23 Cal. 4th 853, 858-59, 98 Cal. Rptr. 2d 254, 3 P.3d 898 (2000).

The trial court instructed the jury using CALJIC 2.15, as follows:

If you find that a defendant was in conscience [sic] possession of a recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that the defendant is guilty of the crime of carjacking. Before guilt may be inferred there must be corroborating evidence tending to prove the defendant's guilt. However, this corroborating evidence need only be slight and need not by itself be sufficient to warrant an inference of guilt. As corroboration you may consider the attributes of the possession of the time, place and manner [sic] that the defendant had an opportunity to commit the crime charged, the defendant's conduct, or any other evidence which tends to connect the defendant with the crime charged.

(R.T. 105-06; see C.T. 49).

Petitioner contends the instruction was an improper permissive inference and burden-shifting instruction which allowed the jury to infer Petitioner's guilt from the mere fact that Petitioner was found in possession of stolen property (i.e., Comstock's car) (Petition, pp. 5, 5a). The Court of Appeal rejected Petitioner's claim, ruling that the instruction did not allow the jury to convict Petitioner based solely on his possession of stolen property, did not shift the burden of proof, and was not an unconstitutional permissive inference instruction (see I Respondent's Lodgment 10, pp. 4-5; People v. Juarez, 2005 WL 3366962, at *2-3).

"[I]nstructions that contain errors of state law may not form the basis for federal habeas relief." Gilmore v. Taylor, 508 U.S. 333, 342 (1993); see also Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) ("the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief"); Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988) (instructional error "does not alone raise a ground cognizable in a federal habeas corpus proceeding"). When a federal habeas petitioner challenges the validity of a state jury instruction, the issue is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. at 72; Clark v. Brown, 450 F.3d 898, 904 (9th Cir.), cert. denied, 127 S.Ct. 555 (2006). The court must evaluate the alleged instructional error in light of the overall charge to the jury. Middleton v. McNeil, 541 U.S. 433, 437 (2004); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997), cert. denied, 522 U.S. 1079 (1998).

The Due Process Clause protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the charged crime. In re Winship, 397 U.S. 358, 364 (1970). The State may not use evidentiary presumptions in a jury charge which have the effect of relieving the prosecution of its burden to prove every essential element of the crime beyond a reasonable doubt. See Francis v. Franklin, 471 U.S. 307, 313 (1985); Sandstrom v. Montana, 442 U.S. 510, 520-24 (1979).

A permissive inference instruction, such as the instruction challenged here, is constitutional unless the conclusion the instruction suggests cannot be justified by reason and common sense in light of the proven facts before the jury. Francis v. Franklin, 471 U.S. at 314-15; Hanna v. Riveland, 87 F.3d 1034, 1037 (9th Cir. 1996); United States v. Warren, 25 F.3d 890, 897 (9th Cir. 1994). A permissive inference instruction does not affect the application of the "beyond a reasonable doubt" proof standard unless there is no rational way the jury could make the connection permitted by the inference. Ulster County Court v. Allen, 442 U.S. 140, 157 (1979) ("Because [a] permissive inference instruction leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the "beyond a reasonable doubt" standard only if, under the facts of the case, there is no rational way the trier [of fact] could make the connection permitted by the inference."); United States v. Warren, 25 F.3d at 897 n.4.

Petitioner contends that the challenged instruction allowed the jury to convict Petitioner of carjacking based solely on Petitioner's possession of stolen property. According to Petitioner, because Petitioner admitted he took Comstock's car, but denied he took it from the victim by force or fear, the instruction "told the jury to infer guilt of carjacking even if the evidence proved only the simple possession of a stolen vehicle" (Supplemental Reply, p. 15). However, the instruction expressly informed jurors that they could not base a conviction solely on evidence that Petitioner possessed stolen property. Rather, the instruction informed the jury that corroborating evidence was required before jurors could infer from the fact of possession that Petitioner was guilty of carjacking.

The Court of Appeal concluded that the evidence showed a rational connection between the underlying fact of Petitioner's possession of the stolen car and the presumed fact that Petitioner committed carjacking (see I Respondent's Lodgment 10, p. 5). This determination was not unreasonable. Comstock testified that Petitioner approached Comstock, pointed a gun at Comstock, pushed Comstock to the ground, asked Comstock for the car keys, and drove off in Comstock's car (R.T. 31-34). As the Court of Appeal recognized, Comstock's testimony provided substantial corroborating evidence that Petitioner had committed carjacking. Because the evidence permitted a rational juror to "make the connection permitted by the inference," the use of CALJIC 2.15 did not violate due process. See Ortiz v. Lamarque, 2008 WL 161786, at *14-15 (E.D. Cal. Jan. 15, 2008), adopted, 2008 WL 686885 (E.D. Cal. Mar. 12, 2008); Crawford v. Butler, 2007 WL 214440, at *3-5 (E.D. Cal. Jan. 26, 2007), adopted, 2007 WL 1660673 (E.D. Cal. June 6, 2007), aff'd, 2008 WL 3271143 (9th Cir. Aug. 6, 2008); Ahmed v. Yates, 2006 WL 516661, at *15-17 (N.D. Cal. Feb. 28, 2006); Lyons v. Pliler, 1999 WL 179677, at *6-8 (N.D. Cal. Mar. 29, 1999).

Moreover, permissive inference instructions generally do not effect constitutional error where, as here, other instructions "condition, qualify or explain them." Hanna v. Riveland, 87 F.3d at 1038; see also United States v. Warren, 25 F.3d at 899 (problems can be avoided "if other instructions condition and qualify the permissive inference instruction, so as to make clear that the judge is not implying the jury should return a guilty verdict"). In Petitioner's case, the judge instructed the jury regarding the prosecution's burden of proving Petitioner's guilt beyond a reasonable doubt (R.T. 110-11; C.T. 56). The judge informed the jury of the elements of carjacking, and instructed the jury that the prosecution had to prove each element (R.T. 111-13; C.T. 58-59). The judge also instructed the jury that the facts could be proved by circumstantial evidence, defining circumstantial evidence to be evidence that, if found true, proved a fact from which an inference of another fact might be drawn (R.T. 103; C.T. 45). The judge instructed the jury that an inference was "a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence" (R.T. 103; C.T. 45). The judge further instructed the jury to consider the instructions as a whole, and "each instruction in light of all the others" (R.T. 101; C.T. 43). In these circumstances, the challenged instruction did not have the effect of unconstitutionally shifting the burden of proof or otherwise violating due process. See Crawford v. Butler, 2008 WL 3271143, at *1 (9th Cir. Aug. 7, 2008) (read with other instructions, CALJIC 2.15 did not lessen the burden of proof or render the trial fundamentally unfair);*fn6 Cortez v. Scribner, 2008 WL 628680, at *13-14 (C.D. Cal. Feb. 29, 2008) (use of CALJIC 2.15 in burglary and vehicle theft case not unconstitutional; instruction did not shift burden of proof; jury was instructed regarding burden of proof and elements of burglary and vehicle theft; and inference suggested by instruction was supported by corroborating evidence); Brown v. Yates, 2007 WL 781595, at *18 (E.D. Cal. Mar. 13, 2007), adopted, 2007 WL 1391388 (E.D. Cal. May 10, 2007) (read with other instructions, including reasonable doubt and burden of proof instructions, CALJIC 2.15 did not shift burden of proof); Ahmed v. Yates, 2006 WL 516661, at *18 (same).

Finally, any instructional error was harmless. In a federal habeas action, the applicable harmless error standard is the standard set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993) ("Brecht"). Brecht forbids a grant of habeas relief for a trial-type error unless the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637-38.

The jury found true the allegation that Petitioner had personally used a firearm in the commission of the offense. This finding demonstrates that the jury credited Comstock's version of events, i.e., that Petitioner used the gun to take Comstock's car, and did not find Petitioner guilty of carjacking based solely on any inference arising from Petitioner's possession of Comstock's car. Furthermore, the record supports the conclusion that Petitioner's jury conscientiously followed its instructions and did not convict Petitioner simply because Petitioner concededly possessed stolen property. Deliberations began at approximately 3:50 p.m. on January 17, 2003 (R.T. 154; C.T. 36-38). On the morning of the next court day, January 21, 2003, the jury sent the judge a request for a readback of "Comstock's testimony - transcripts when first saw Juarez" (R.T. 157-58; C.T. 39, 91). Following the readback, the jury resumed deliberations, and reached its verdict that afternoon (R.T. 158-774; C.T. 91-94). These events reinforce the conclusion that the jury did not simply base its verdict on the undisputed evidence that Petitioner was found in possession of Comstock's stolen car. Had the jury done so, deliberations likely would have been perfunctory. They were not. Any error in giving CALJIC 2.15 was harmless.

For the foregoing reasons, the Court of Appeal's rejection of Petitioner's challenge to the use of CALJIC 2.15 was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d). Petitioner is not entitled to habeas relief on Ground One of the Petition.

II. The Trial Court's Failure to Give a Voluntary Intoxication Instruction Does Not Merit Habeas Relief

At trial, Petitioner's counsel requested an instruction on voluntary intoxication (Reporter's Transcript of Proceedings on October 7, 2003 ["R.T. Oct. 7, 2003"] at 2).*fn7 The court denied the request (R.T. Oct. 7, 2003 at 2-3). The Court of Appeal upheld this ruling, reasoning that "there was no evidence whatsoever indicating [Petitioner] was intoxicated," and that Petitioner had admitted at trial he committed "grand theft auto" and had formed the specific intent to do so (I Respondent's Lodgment 10, p. 6; see People v. Juarez, 2005 WL 3366962, at *3). The Court of Appeal also noted that Petitioner's counsel had conceded in closing argument that Petitioner intended to take and keep the car, and that the evidence supported these statements (I Respondent's Lodgment 10, p. 6; see People v. Juarez, 2005 WL 3366962, at *3).

"As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." Mathews v. United States, 485 U.S. 58, 63 (1988) (citations omitted). "[F]ailure to instruct on the defense theory of the case is reversible error if the theory is legally sound and the evidence in the case makes it applicable." Clark v. Brown, 450 F.3d 898, 904-05 (9th Cir.), cert. denied, 127 S.Ct. 555 (2006) (citations and internal quotations omitted); see also People v. Barajas, 120 Cal. App. 4th 787, 791, 15 Cal. Rptr. 3d 858 (2004) ("In a criminal trial, the court must give an instruction requested by a party if the instruction correctly states the law and relates to a material question upon which there is evidence substantial enough to merit consideration.") (citations omitted).

Although California has abolished the diminished capacity defense, evidence of voluntary intoxication is relevant "to the extent it bears upon the question whether the defendant actually had the requisite specific mental state required for commission of the crimes at issue." People v. Horton, 11 Cal. 4th 1068, 1119, 47 Cal. Rptr. 2d 516, 906 P.2d 478 (1995), cert. denied, 519 U.S. 815 (1996) (citation omitted; original emphasis). A defendant is entitled to a voluntary intoxication instruction "only when there is substantial evidence of the defendant's voluntary intoxication and the intoxication affected the defendant's 'actual formation of specific intent.'" People v. Williams, 16 Cal. 4th 635, 677, 66 Cal. Rptr. 2d 573, 941 P.2d 752 (1997), cert. denied, 523 U.S. 1027 (1998) (citation omitted). A voluntary intoxication instruction is not required unless there is evidence to show that the defendant "became intoxicated to the point he failed to form the requisite intent." People v. Ivans, 2 Cal. App. 4th 1654, 1661, 4 Cal. Rptr. 2d 66 (1992).

Here, as the Court of Appeal recognized, there was no evidence Petitioner was intoxicated at the time of the offense. Comstock testified that he did not smell alcohol when Petitioner came close to Comstock (R.T. 48-49). Petitioner testified only that, after his car allegedly broke down, Petitioner bought a six-pack of beer and began drinking it (R.T. 71-72). Petitioner did not indicate he was intoxicated when he took Comstock's car. Indeed, Petitioner's testimony belies any contention that he was profoundly intoxicated at the time of the offense. Petitioner testified that, when he saw Comstock's car, he rapidly went to the car, saw the keys in the ignition, got in and drove off "right away" (R.T. 72-73). Petitioner said he took the car because he needed the car to look for work (R.T. 74, 87-88). Petitioner testified he chose not to drive to his uncle's house in La Puente because Petitioner knew he had stolen a car and "did not want to create problems" for his uncle (R.T. 74). Petitioner's own testimony was inconsistent with any contention that Petitioner was so intoxicated that he was unable to form the requisite intent "to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession" within the meaning of California Penal Code section 215(a). The trial court did not err in failing to give an instruction unsupported by the evidence. See Williams v. Yarborough, 228 Fed. App'x 705, 707 (9th Cir. 2007), cert. denied, 128 S.Ct. 2478 (2008) (failure to give voluntary intoxication instruction not unconstitutional, where California Supreme Court held evidence was insufficient to support instruction and Petitioner failed to show this state law ruling was erroneous); Tayag v. Kane, 2007 WL 963333, at *4 (N.D. Cal. Mar. 30, 2007) (counsel not ineffective in failing to request a voluntary intoxication instruction, where there was no evidence "even suggesting that petitioner was so intoxicated that he could not form the specific intent to burglarize a residence"); Suon v. Carey, 2006 WL 768633, at *5 (E.D. Cal. 2006), adopted, 2006 WL 2065320 (E.D. Cal. July 24, 2006) (failure to give voluntary intoxication instruction did not merit habeas relief, where evidence showed only that petitioner was drinking on the day of the incident, but did not show he was intoxicated or that his mental state was affected by his drinking); People v. Horton, 11 Cal. 4th at 1118-19 (voluntary intoxication instruction not warranted, where evidence showed only that defendant had freebased cocaine the day before the crimes, there was no evidence that defendant was intoxicated at time of the crimes, and defendant's statements following the crimes showed defendant was "fully aware of his actions").

For the foregoing reasons, the Court of Appeal's rejection of Petitioner's challenge to the trial court's refusal to give a voluntary intoxication instruction was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d). Petitioner is not entitled to habeas relief on Ground Two of the Petition.

III. Petitioner's Contention That the Sentencing Court Violated Due Process Assertedly By Relying on the Same Facts to Impose an Upper Term and to Impose a Consecutive Ten-Year Term on the Gun Use Enhancement Does Not Merit Habeas Relief

California Penal Code section 1170(b) forbids a court from imposing an upper term sentence "by using the fact of any enhancement upon which sentence is imposed under any provision of law."*fn8

Petitioner contends the sentencing court relied "on some of the very same facts" to impose an upper term on the carjacking charge and to impose a ten-year consecutive sentence on the gun use allegation (Petition, p. 5a). Petitioner does not describe the "very same facts," other than to note that, at sentencing, the judge commenced his comments by observing that the case involved a victim who was making a pizza delivery in a "tricked up" car when Petitioner, armed with a gun, approached the victim, forced him to the ground, and took his car (see Supplemental Reply, p. 31, citing R.T. 190). The last reasoned opinion of the Court of Appeal did not address this claim, and the California Supreme Court rejected the claim summarily (see I Respondent's Lodgments 13, 14). Therefore, this Court must conduct an independent review to determine whether the decisions were contrary to, or involved an unreasonable application of, "clearly established" Supreme Court precedent. See Delgado v. Lewis, 223 F.3d at 982.

Matters relating to sentencing and serving of a sentence generally are governed by state law and do not raise a federal constitutional question. See Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) (holding that question of whether particular prior conviction qualifies for sentence enhancement under California law is not cognizable on federal habeas corpus); see also Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986) (federal habeas relief "unavailable for alleged error in the interpretation or application of state law"); Sturm v. California Adult Authority, 395 F.2d 446, 448 (9th Cir. 1967), cert. denied, 395 U.S. 947 (1969) ("a state court's interpretation of its [sentencing] statute does not raise a federal question"). Indeed, Petitioner states that this "subclaim" "may or may not" present a federal question (see Supplemental Reply, p. 31).

Under narrow circumstances, however, the misapplication of state sentencing law may violate due process. See Richmond v. Lewis, 506 U.S. 40, 50 (1992). "[T]he failure of a state to abide by its own statutory commands [regarding sentencing] may implicate a liberty interest protected by the Fourteenth Amendment against arbitrary deprivation by a state." Fetterly v. Pasksett, 997 F.2d 1295, 1300 (9th Cir. 1993), cert. denied, 513 U.S. 914 (1994); see also Walker v. Deeds, 50 F.3d 670, 672-73 (9th Cir. 1995) (state sentencing court violated due process by failing to make habitual offender determination required by state law). However, "[a]bsent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief." Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994).

The sentencing court imposed the upper term based on findings that: (1) the crime involved planning and sophistication, including more than one participant; and (2) the victim was vulnerable (R.T. 190-91; see also R.T. 178). The consecutive ten-year term on the gun use enhancement was mandatory under California Penal Code section 12022.53(b), and the court imposed it without additional comment (see R.T. 192).*fn9 The court did not indicate it was using the same findings to impose the mandatory ten-year consecutive sentence on the gun use enhancement as the court had used to impose the upper term.

To the extent Petitioner contends the court used the fact that Petitioner employed a gun in the commission of the offense both to impose the upper term and to impose the ten-year consecutive sentence on the gun use enhancement, the record does not support such a contention. The Court commenced its sentencing discussion with the following:

As I said before, I read and considered the paperwork supplied by both people, and the defense, and the probation department.

I recall the testimony on this case that Mr. Comstock was making a pizza delivery with the Pizza Hut sign affixed to the top of his car. I remember his car being a "tricked out," to use his phrase, automobile. That he was approached by the defendant, who had a gun, and was forced to the ground. And the car was taken.

(R.T. 190).

The court then went on to make express factual findings concerning the planning and sophistication of the crime and the vulnerability of the victim, which the court used to impose the upper term (R.T. 190-91). The court did not indicate it also was imposing the upper term based on use of the gun, and the court's prefatory remarks describing the facts of the crime as the court recalled them cannot be construed reasonably as any sort of finding used to support an upper term sentence.

Petitioner has not shown any alleged dual use of facts to impose an upper term sentence and a mandatory ten-year enhancement rendering Petitioner's sentence fundamentally unfair. Hence, the California Supreme Court's rejection of this claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d). Petitioner is not entitled to habeas relief on this claim.

IV. Petitioner Is Entitled to Habeas Relief on His Blakely/Cunningham Claim

In Apprendi v. New Jersey, 530 U.S. 466 (2000) ("Apprendi"), the United States Supreme Court held that, regardless of its label as a "sentencing factor," any fact other than the fact of a prior conviction that increases the penalty for a crime beyond the prescribed statutory maximum among other things must be "proved beyond a reasonable doubt." Id. at 490. In Blakely, the Supreme Court held that the "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, 542 U.S. at 303 (original emphasis). In Cunningham, the Supreme Court held that a California judge's imposition of an upper term sentence based on facts found by the judge rather than the jury violated the Constitution. Cunningham, 127 S.Ct. at 871.

As indicated previously, the Court of Appeal rejected Petitioner's claim on the ground that the Court of Appeal was bound by Black. The California Supreme Court denied Petitioner's January 20, 2006 petition for review containing his Blakely/Cunningham claim without prejudice to any relief to which Petitioner might be entitled after the California Supreme Court decided whether Cunningham was retroactive (see II Respondent's Lodgment 3). It thus appears that the California Supreme Court did not reach the merits of Petitioner's Blakely/Cunningham claim. The last reasoned state court opinion is the opinion of the Court of Appeal applying Black, a case later abrogated by Cunningham. Because the Court of Appeal applied an incorrect legal standard, this Court's review is de novo. See Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised"); Butler v. Curry, 528 F.3d 624, 641 (9th Cir. 2008) (applying de novo review to Cunningham claim where Court of Appeal's application of Black was contrary to clearly established Supreme Court law); see also Panetti v. Quarterman, 127 S.Ct. 2842, 2855, 2858-59 (2007) (where state court's decision constituted an unreasonable application of Supreme Court law, review of petitioner's claim is "unencumbered by the deference [section 2254(d)] normally requires").

The Ninth Circuit recently held that Cunningham is retroactive. Butler v. Curry, 528 U.S. at 634-39. Butler v. Curry is binding on this Court. See Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001) (district judge may not "disagree with his learned colleagues on his own court of appeals who have ruled on a controlling legal issue"); Zuniga v. United Can Co., 812 F.2d 443, 450 (9th Cir. 1987) ("[d]istrict courts are, of course, bound by the law of their own circuit"). Respondent argues that, because a petition for rehearing is pending in Butler v. Curry and the mandate has not yet issued, the panel decision is not authoritative. This argument is meritless.

See, e.g., Wedbush, Noble, Cooke, Inc. v S.E.C., 714 F.2d 923, 924 (9th Cir. 1983).*fn10

Under California's Determinate Sentencing Law, "three terms of imprisonment are specified for most offenses." Black, 35 Cal. 4th at 1246-47. The statute defining the offense generally prescribes three terms of imprisonment, an upper term, a middle term and a lower term. Cunningham, 127 S.Ct. at 861. At the time Petitioner was sentenced, California Penal Code section 1170(b) required the sentencing court to impose the middle term "unless there [were] circumstances in aggravation or mitigation of the crime."*fn11 Under California sentencing rules promulgated pursuant to California Penal Code section 1170.3, selection of the upper term was justified "only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh[ed] the circumstances in mitigation." See former Cal. Ct. R. 4.420(b).*fn12 "Circumstances in aggravation" meant "facts which justify the imposition of the upper term." See former Cal. Ct. R. 4.420(e). At the time of Petitioner's sentencing, Rule 4.421 of the California Rules of Court set forth a non-exhaustive list of circumstances in aggravation which included, among other things, the factors that the victim was "particularly vulnerable" and that "the manner in which the crime was carried out indicate[d] planning, sophistication, or professionalism." See former Cal. Ct. R. 4.421(a)(3), 4.421(a)(8).*fn13

As indicated above, the sentencing court imposed the upper term based on findings that: (1) the crime involved planning and sophistication, including more than one participant; and (2) the victim was vulnerable (R.T. 190-91; see also R.T. 178). Neither finding was admitted by Petitioner or found true by the jury. Neither was essential to the jury's determination that Petitioner was guilty of carjacking and that the gun use enhancement was true. Therefore, Petitioner's upper term sentence violated Blakely and Cunningham. See Butler v. Curry, 528 F.3d at 641-48 (imposing upper term sentence based on alleged vulnerability of victim and petitioner's probationary status at time of offense violated Sixth Amendment as construed in Blakely and Cunningham); People v. Sandoval, 41 Cal. 4th 825, 837-38, 62 Cal. Rptr. 3d 588, 161 P.3d 1146 (2007) (upper term sentence based on violence and callousness of offense, vulnerability of victims and fact that offense involved planning and premeditation violated Cunningham); People v. Miller, 164 Cal. App. 4th 653, 669, 78 Cal. Rptr. 3d 918 (2008) (upper term sentence based on vulnerability of victim violated Cunningham); People v. Cardenas, 155 Cal. App. 4th 1468, 1479, 66 Cal. Rptr. 3d 821 (2007) (upper term sentence based on finding that offense involved planning and sophistication violated Cunningham).

Blakely/Cunningham error is subject to harmless error analysis. See Washington v. Recuenco, 548 U.S. 212, 222 (2006); Butler v Curry, 528 F.3d at 648. Under the harmless error standard applicable in federal habeas cases, the Court must determine whether the error had a "substantial and injurious effect" on Petitioner's sentence. See Brecht v. Abrahamson, 507 U.S. at 637-38; Butler v. Curry, 548 F.3d at 648.

Under California law, the existence of one aggravating factor sets the upper term as the maximum term. See Butler v. Curry, 548 F.3d at 642 (citing People v. Black, 41 Cal. 4th 799, 62 Cal. Rptr. 3d 569, 161 P.3d 1130 (2007), cert. denied, 128 S.Ct. 1063 (2008)). Therefore, a Blakely/Cunningham error is harmless "if it is not prejudicial as to just one of the aggravating factors at issue." Butler v. Curry, 548 F.3d at 642.

The error was prejudicial as to all of the aggravating factors at issue in the present case. As indicated above, the jury could have found the elements of carjacking and gun use without finding "planning and sophistication" or the participation of another person. Moreover, the evidence supporting "planning and sophistication" and the participation of another person was not overwhelming. Comstock testified that, when Comstock first noticed Petitioner, Comstock saw a light-colored pickup truck near Petitioner, which had not been there when Comstock first drove down the street (R.T. 30-31). Comstock testified that, as Petitioner drove off in Comstock's car going eastbound, the pickup truck drove off westbound (R.T. 34). The parties stipulated that, three days after the incident, a Palms Springs police officer saw a white Honda (later identified as Comstock's car) and a white pickup truck at the mobile home park, and identified Petitioner as the driver of the Honda and Jorge Ramirez as the passenger (R.T. 63). Petitioner testified that he had left some personal belongings in an apartment in Cathedral City, and that a friend of Petitioner who had a pickup truck was going to move Petitioner's belongings (R.T. 76-77). However, Petitioner said his friend's pickup truck was not white or light-colored, and was not the truck at the Palm Springs mobile home park (R.T. 77). Although jurors could have found "planning," if not "sophistication," and the participation of another person, from this rather thin evidence, the evidence certainly did not compel such findings.

Similarly, the finding of vulnerability was neither essential to the verdict nor supported by overwhelming evidence. Under California law, a victim is "particularly vulnerable" "only if he is vulnerable to a special or unusual degree, to an extent greater than in other cases." Butler v. Curry, 548 F.3d at 649 (citation and internal quotations omitted). "In the overwhelming majority of cases, 'particularly vulnerable victims' have had inherent personal characteristics that, sometimes in combination with the manner in which the crime was committed, render them more vulnerable than other victims." Id. (citations omitted). "The California courts have in a few cases relied on aspects of the status of a victim that are more changeable than age or physical frailty, but have done so only when the victim was seriously, if only temporarily incapacitated." Id. (citations omitted).

The sentencing court based its finding of vulnerability on the observation that Comstock's car bore a Pizza Hut sign indicating that the driver was making deliveries and could carry money (R.T. 191). The court acknowledged that Comstock was not "vulnerable" "within the traditional sense of the vulnerable victim" (R.T. 191). There was no evidence that Comstock, who was nineteen years old and six feet one inch tall (see R.T. 43, 51) was physically or mentally infirm, or any less able than other victims to "ward off attack" because of any incapacity or disability. See Butler v. Curry, 548 F.3d at 649. This Court cannot confidently conclude that the jury would have found, had it been asked, that the victim was "particularly vulnerable." See People v. Sandoval, 41 Cal. 4th at 842 (imposition of upper term sentence based on vulnerability of victims due to fact that they were unarmed and taken by surprise not harmless; victims were not elderly, very young or disabled, and court could not "confidently conclude that the jury would have made the same findings"). The Blakely/Cunningham error here was not harmless.

In sum, because the sentencing court imposed an upper term sentence based on facts not admitted by Petitioner or found by the jury in violation of Blakely and Cunningham, and because the error was not harmless, Petitioner is entitled to habeas relief on his Blakely/Cunningham claim.

RECOMMENDATION

For the reasons discussed above, IT IS RECOMMENDED that the Court issue an order directing that Judgment be entered: (1) granting a conditional writ of habeas corpus ordering that Respondent treat Petitioner's upper term sentence as a middle term sentence, unless within ninety (90) days of the entry of Judgment, Petitioner is resentenced in compliance with Blakely v. Washington, 542 U.S. 296 (2004) and Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856 (2007); and (2) otherwise denying the Petition with prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.


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