ORIGINAL PROCEEDING. Petition for writ of habeas corpus. Superior Court of San Diego County, Runston G. Maino, Judge. Relief granted. (Super. Ct. No. SCN085414 & HCN1041).
The opinion of the court was delivered by: McINTYRE, J.
CERTIFIED FOR PUBLICATION
Two recent cases, In re Gomez (2009) 45 Cal.4th 650 (Gomez) and Butler v. Curry (9th Cir. 2008) 528 F.3d 624 (Butler), hold that Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham) applies retroactively in collateral review of judgments that became final before Cunningham and after Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). This case presents the question whether Cunningham applies on collateral review of a judgment that became final before Cunningham but after Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) - that is, whether Apprendi established a new rule of law for purposes of retroactivity analysis. We conclude that it did and grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In April 1999, a jury convicted petitioner Anthony Mario Watson of murder, robbery, kidnapping, assault with a firearm, and false imprisonment. (People v. Watson, In re Watson (Jul. 12, 2001, D034448, D037664 & D036721) [nonpub. opn.] (Watson I); we take judicial notice of the records of this court (Evid. Code, §§ 452, subd. (d) & 459, subd. (a)).) Among other things, the jury found true allegations that Watson personally used a firearm in the commission of all the offenses. In October 1999, the court sentenced him to 55 years to life. It imposed the upper term of ten years for the firearm use enhancement to murder in count 1 "based on the callousness of the use, the manner and style of the execution," the upper term of eight years for kidnapping in count 3 based on premeditation, and the upper term of ten years for the firearm use enhancement to kidnapping in count 3 "based upon the involvement of minors in the position of leadership." (Cal. Rules of Court, former rule 421(a).)
The United States Supreme Court decided Apprendi on June 26, 2000.
Watson appealed to this court and filed two petitions for writ of habeas corpus, each on grounds different from those raised in the petition now before us. (Watson I, supra.) On July 12, 2001, we reversed Watson's conviction for false imprisonment, concluding that it was a necessarily included offense of kidnapping. We affirmed the judgment in all other respects, and denied the habeas corpus petitions. The partial reversal did not require resentencing. (Watson I, supra.) The California Supreme Court denied review of Watson's direct appeal in September 2001.
In October 2001, Watson filed a petition for writ of habeas corpus in the United States District Court for the Southern District of California raising the same six claims he presented in the state habeas corpus petitions. When it became apparent that an evidentiary hearing was required on the ineffective assistance claim relating to Watson's alibi, the court appointed Federal Defenders of San Diego, Inc., to represent him. Watson's counsel raised trial counsel's "dismal performance" apart from his handling of the alibi defense and asked the court to consider trial counsel's cumulative ineffectiveness. The district court denied Watson's petition in November 2004.
In December 2004, Watson appealed to the Ninth Circuit. Nearly two years later in September 2006, the Ninth Circuit affirmed the district court's holding that trial counsel was not ineffective for failing to interview White and Yard, two potential alibi witnesses. At the same time, it remanded the case to the district court to develop the record regarding the reasonableness of trial counsel's failure to interview Douglas and Larose, two other potential alibi witnesses. The Ninth Circuit also held that Watson had not exhausted his claim that "cumulative errors rendered trial counsel's performance deficient" and dismissed that claim without prejudice.
On January 8, 2007, Watson requested a stay and abeyance of the federal proceedings so he could return to state court to raise the non-alibi issues that the Ninth Circuit held were not exhausted. The Attorney General opposed the request. The district court did not hold an evidentiary hearing on the ineffective assistance issue with respect to potential alibi witnesses Douglas and Larose; nor did it rule on the request for stay and abeyance until February 27, 2009. Meanwhile, Watson's counsel took the unexhausted claims back to state court.
The United States Supreme Court decided Cunningham on January 22, 2007. Still represented by Federal Defenders, Watson filed a petition for writ of habeas corpus in San Diego Superior Court on June 7, 2007. He raised the claims the Ninth Circuit held were unexhausted. Watson also claimed for the first time that "his sentence violates the rule set forth in Apprendi . . . as made clear in Cunningham . . . ." On August 27, 2007, the superior court issued an order to show cause in order to address claims of ineffective assistance of counsel and violations of Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215] (Brady). It denied the petition as to the sentencing issues. On October 23, 2008, after the superior court denied relief on the remaining claims, Watson filed an original petition for habeas corpus in this court. (In re Hochberg (1970) 2 Cal.3d 870, 873-874, fn. 1 (Hochberg).) On April 7, 2009, we denied habeas corpus relief on Watson's claims of ineffective assistance and Brady violations. Watson filed a petition for writ of habeas corpus on those issues in the California Supreme Court on May 8, 2009, which the court denied.
In our April 2009 order, we invited Watson to raise the sentencing claims again in superior court based on new law. The order read in part: "The petition is denied without prejudice to refiling in the trial court for reconsideration of petitioner's claim of sentencing error under Apprendi v. New Jersey (2000) 530 U.S. 466 and Cunningham v. California (2007) 549 U.S. 270. (See In re Gomez (2009) 45 Cal.4th 650; Butler v. Curry (2008) 528 F.3d 624.)"
Watson filed a new petition for writ of habeas corpus in superior court on April 7, 2009, seeking resentencing based on the rationale of Gomez and Butler. Watson argued that because the result in Cunningham was dictated by Apprendi, and the United States Supreme Court decided Apprendi before Watson's conviction was final, Cunningham should apply retroactively to reduce the upper terms to midterms in his case. The superior court rejected that argument and the alternative claim that Cunningham announced a new, "watershed" rule that should be applied to his case.
On July 1, 2009,Watson filed the original petition which is now before us, raising the constitutional claims, and asking us to reduce his upper-term sentences to the middle term. We issued an order ...