FINDINGS AND RECOMMENDATIONS
Petitioner Phillip Villanueva is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. At issue is the sentence imposed by the San Joaquin County Superior Court in case SF080811A for his convictions of second degree robbery and obstructing a police officer.
The following facts are drawn from an unpublished opinion of the California Court of Appeal, Third District. Petitioner is the defendant referred to therein.
On November 13, 2000, shortly after midnight, Abel Lopez Martinez was working alone and cooking donuts at Yum Yum Donuts.
Defendant, who had been drinking, entered and asked Martinez for change to use the telephone. Martinez replied that he had no change. When defendant continued to ask for change, Martinez ignored him. Defendant became "furious," causing Martinez to tell defendant to leave. Defendant then jumped over the counter and told Martinez to "[o]pen the cash register and give me everything that you have." Martinez replied that he could not open the register. In fact, to avoid robberies, Martinez had removed most of the cash from the cash register and placed it under the counter, leaving about $40 in the register. Defendant saw it and tried to grab the money under the counter, but Martinez quickly retrieved it and put it in his pocket. Defendant advanced toward Martinez and demanded that Martinez give him the money now in Martinez's pocket. After Martinez grabbed a rolling pin and threatened to hit the defendant if he refused to leave, the defendant headed toward the front door.
Although the record is not clear, at some point, defendant attempted to grab some chewing gum, and Martinez struck defendant's hand.
Suddenly realizing that the donuts that he was cooking would burn if they were not immediately turned, Martinez put down the rolling pin and went to turn the donuts. But while Martinez was turning the donuts, defendant returned to the counter, grabbed the cash register, and ran out the back door. Martinez chased defendant for about a block, but gave up the chase when he realized that the shop and the donuts had been left unprotected.
Defendant was apprehended by police a short time later following a chase. (C038744 opinion*fn1 at 1-2.).
A jury convicted petitioner of second degree robbery and obstruction of an officer in the performance of his or her duties. The trial court found separately, for sentence enhancement purposes, that he had two serious or violent felony convictions and that he had served a prior prison term.
Although eligible, petitioner was not sentenced as a third strike offender pursuant to the state's habitual criminals or "three strikes" law. See Cal. Penal Code §667. Instead, the trial court exercised it's discretion to strike one of his two prior felony convictions pursuant to People v. Superior Court (Romero), 13 Cal.4th 497 (1996). A sentence of 20 years was imposed. Both petitioner and the San Joaquin County District Attorney appealed. The California Court of Appeal, Third District, affirmed the convictions, vacated the sentence, and remanded the matter for re-sentencing after agreeing with the district attorney that the trial court had abused its discretion in striking one of the prior serious felony convictions.
Upon re-sentencing as a third strike offender, petitioner received a term of 25 years to life. In addition, the court imposed two five-year enhancements, one for each of his two prior convictions. On petitioner's second direct appeal, the state appellate court struck one of the five-year enhancements, finding that his two prior convictions were not "brought and tried separately" within the meaning of Cal. Penal Code §667(a)(1). The total sentence ultimately imposed was 30 years to life.
In this petition, it is alleged that (A) the California Court of Appeal erred in remanding the case for petitioner to be sentenced as a third strike offender; and (B) the trial court committed reversible Blakely error when it enhanced petitioner's sentence based on two prior convictions without submitting the issue whether his two prior convictions were "brought and tried separately" to a jury for ...