The opinion of the court was delivered by: Stephen V. Wilson United States District Judge
ORDER ADOPTING-IN-PART THE FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE, AND GRANTING THE PETITION FOR WRIT OF HABEAS CORPUS
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court approves and adopts the Magistrate Judge's Report and Recommendation in part. The Court fully concurs with the Magistrate Judge's discussion and analysis relating to the (1) bifurcation of trial, (2) admission of hearsay evidence, and (3) imposition of consecutive sentences. The Court disagrees, however, with respect to the imposition of an upper- term sentence as to Count 2 (assault with a firearm). Finally, although the Court agrees with the Magistrate Judge's conclusion regarding the imposition of an upper-term sentence as to the firearm enhancement on Count 2, the Court wishes to supplement the Magistrate Judge's analysis of this issue.
I. Upper-Term Sentence on Count 2
The Court agrees with and adopts the Magistrate Judge's summary of the applicable law regarding upper-term sentencing. See generally Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007); United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
However, contrary to the Magistrate Judge's analysis, the Court concludes that there are "grave doubts" regarding whether the jury would have concluded beyond a reasonable doubt that the victims of Petitioner's crime were "particularly vulnerable." See Butler v. Curry, 528 F.3d 624, 648 (9th Cir. 2008) (applying harmless error standard of Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710 (1993), to determine whether to grant writ of habeas corpus based on state courts' sentencing error). Accordingly, the Court concludes that the state courts' unreasonable application of the Sixth Amendment was not harmless error, and the action must be remanded to the state trial court for resentencing.
A. "Particularly Vulnerable Victim"
The trial court imposed an upper-term sentence of four years with respect to Count 2, assault with a firearm under Cal. Penal Code § 245(a)(2). The court explained that "[t]he victim in this particular case was particularly vulnerable; this particular victim, sitting in a private car." (RT 553.)
One of California's aggravating sentencing factors is whether "[t]he victim was particularly vulnerable." Cal. R. Ct. 4.421(a)(3). The Ninth Circuit thoroughly explored the contours of this sentencing factor in Butler. In that case, the petitioner had been convicted of domestic assault and battery. The state trial court had imposed an upper-term sentence on the ground that the victim was particularly vulnerable because "she was attacked from behind." Butler, 528 F.3d at 649. The Ninth Circuit held that the trial court's factual finding, although it was a permissible legal interpretation of the "vulnerable victim" rule, was not a harmless sentencing error because there were "grave doubts" that a jury would have reached the same conclusion beyond a reasonable doubt. Id. at 650 & n.19.
In reaching its conclusion in Butler, the Ninth Circuit summarized the applicable rules of state law. The Court agrees with the Ninth Circuit's summary:
Under California law, vulnerable means "'defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act.'" People v. Weaver, 149 Cal.App.4th 1301, 58 Cal.Rptr.3d 18, 27 (2007) (quoting People v. Smith, 94 Cal.App.3d 433, 156 Cal.Rptr. 502, 503 (1979)). A victim is "particularly" vulnerable only if he is vulnerable to a "special or unusual degree, to an extent greater than in other cases." People v. Loudermilk, 195 Cal.App.3d 996, 241 Cal.Rptr. 208, 214 (1987). A victim is thus not "particularly" vulnerable where all victims of the crime of conviction are vulnerable in the same manner. See People v. Bloom, 142 Cal.App.3d 310, 190 Cal.Rptr. 857, 865 (1983) (stating that "[a]ll victims of drunk drivers are 'vulnerable victims'"). . . .
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. See, e.g., People v. Bishop, 158 Cal.App.3d 373, 204 Cal.Rptr. 502, 505 (1984) (victims were very young and of small stature); People v. McGlothin, 67 Cal.App.4th 468, 79 Cal.Rptr.2d 83, 87 (1998) (the victims were particularly vulnerable because they were elderly and were attacked in a parking lot late at night); People v. Karsai, 182 Cal.Rptr. 406, 416, 182 Cal.Rptr. 406 (Immigration and Nationality Act, § 208(d)(6), 8 U.S.C.A. § 1158(d)(6).1982) (victim was young and physically weak); id. ("While age and physical traits are not the only factors which may indicate particular vulnerability, they are the most obvious.").
The California courts have in a few cases relied on aspects of the status of the victim that are more changeable than age or physical frailty, but have done so only when the victim was seriously, if only temporarily, incapacitated. People v. Hoover, 77 Cal.App.4th 1020, 92 Cal.Rptr.2d 208, 215-16 (2000) (extremely intoxicated victim in domestic violence case); People v. White, 117 Cal.App.3d 270, 172 Cal.Rptr. 612, 618 (1981) (shooting a victim already incapacitated from earlier gunshot), abrogated on other grounds by People v. Scott, 9 Cal.4th 331, 353 n. 16, 36 Cal.Rptr.2d 627, 885 P.2d 1040 (1994); Loudermilk, 241 Cal.Rptr. at 214 (sleeping victim); Smith, 156 Cal.Rptr. at 503 (sleeping victims).
Butler, 528 F.3d at 649-50.
In light of those authorities, the Court is left with "grave doubts" as to whether the jury would have concluded beyond a reasonable doubt that the victims of Petitioner's crime were "particularly vulnerable." A jury might agree with the Magistrate Judge's conclusion that the victims "were effectively trapped in a car heading the wrong direction in a cul de sac, and were defenseless and at the mercy of the shooter, i.e., petitioner." (R&R at 24.) However, a jury might have concluded that the victims were not "vulnerable to a 'special or unusual degree, to an extent greater than in other cases.'" Butler, 528 F.3d at 649 (quoting Loudermilk, 195 Cal.App.3d 996, 241 Cal.Rptr. 208, 214 (1987)). Instead, the jury might reasonably have concluded that the victims of Petitioner's crime were "vulnerable in the same manner" as "all victims of the crime" of assault with a firearm. Id. (citing People v. Bloom, 142 Cal.App.3d 310, 190 Cal.Rptr. 857, 865 (1983)). In fact, the jury might have ...