The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner Hector Daniel Mendoza is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, it is recommended that the habeas petition be denied.
On September 22, 2006, a Yuba County jury convicted Petitioner of "second degree robbery (Pen. Code, § 211; count 1), attempted carjacking (Pen. Code, §§ 664/215, subd. (a); count 2), unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a); count 3), evading a police officer (Veh. Code, § 2800.2, subd. (a); count 4), possession of a firearm by a felon (Pen. Code, § 12021, subd. (a); count 5), possession of a short-barreled shotgun (Pen. Code, § 12020, subd. (a)(1); count 7), two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(2); counts 8 and 11), discharging a firearm in a grossly negligent manner (Pen. Code, § 246.3, subd. (a); count 9), grand theft (Pen. Code, § 487, subd. (c); count 10), drawing or exhibiting a firearm to a motor vehicle occupant (Pen. Code, § 417.3; count 12), possession of a loaded firearm on his person or in a vehicle by a felon (Pen. Code, § 12031, subd. (a)(2)(A); count 13), resisting arrest (Pen. Code, § 148, subd. (a)(1); count 14), and providing false identification to a police officer (Pen. Code, § 148.9, subd. (a); count 15), and found [Petitioner] personally used a firearm within the meaning of Penal Code section 12022.5, subdivision (a)(1) in counts 1, 2, 8, and 11, and within the meaning of section 12022.53, subdivision (c) in count 1 and section 12022.53, subdivision (b) in count 2." Resp't's Answer Ex. A, at 2-3, ECF No. 12;*fn1 see Clerk's Tr. vol. 1, 115-33.
Also on September 22, 2006, the trial court struck the grand theft charge (count ten) "as surplusage," because it was the "lesser to that of the 211 charged in Count I." Rep.'s Tr. vol. 2, 334, 358.
On November 17, 2006, the trial court sentenced Petitioner to a determinate aggregate term of thirty-one years and two months. Clerk's Tr. vol. 1, 194; see Resp't's Answer Ex. A, at 3. The trial court also struck the section 12022.5(a)(1) enhancements in counts one and two. Rep.'s Tr. vol. 2, 347-48; see Resp't's Answer Ex. A, at 3.
Petitioner directly appealed to the California Court of Appeal, Third Appellate District. See Lodged Doc. No. 1. On March 21, 2008, California Court of Appeal issued a reasoned decision (1) staying service of the sentence imposed on count thirteen so that Petitioner's total determinate prison term was thirty years and six months; and (2) amending the abstract to reflect the proper California Penal Code sections in counts seven and fourteen. See Resp't's Answer Ex. A, at 14. In all other respects, the California Court of Appeal affirmed the conviction and sentence. Id.
On April 25, 2008, Petitioner filed a petition for review in the California Supreme Court. See Lodged Doc. No. 4. On June 11, 2008, the California Supreme Court denied the petition without comment or citation. See Lodged Doc. No. 5.
One June 5, 2009, Petitioner filed a federal habeas petition. See Pet'r's Pet., ECF No. 1. On January 25, 2010, Respondent filed an answer, see Resp't's Answer, to which Petitioner filed a traverse on April 9, 2010. See Pet'r's Traverse, ECF No. 18.
III. FACTUAL BACKGROUND*fn2
On the morning of January 19, 2006, Leslie Todd started her 2002 Honda Accord which was parked on the street. Leaving the car running, she went inside her house to get a bottle of water. When she returned a few minutes later, her car was gone.
Carol Trama, a neighbor of Todd's, was sitting at her kitchen table having coffee at around 7:30 a.m. that morning, when she saw a man walk by her house, go to Todd's house, get in a car, and drive up the street. Trama identified [Petitioner] as the driver of the car at trial and at a show up.
Rafael Damian was digging fence holes that morning when [Petitioner] got out of a still running car and walked towards him while carrying a shotgun. [Petitioner] said to Damian, "Give me your wallet if you don't want to die right now." Damian tried to ignore [Petitioner] and looked away, so [Petitioner] shot into the ground about a foot-and-a-half from Damian's feet. [Petitioner] then reloaded the shotgun, took Damian's wallet from his pocket, and walked back to the car. Damian identified [Petitioner] as the perpetrator at the trial and in a show up.
At around 8:00 a.m. that morning, Diana Garcia was moving her son's car from the parking lot of her apartment complex to the street. While parking the car, she saw a gray Honda go in front of her and park. The driver, whom she identified as [Petitioner] at trial and the show up, got out of his car and asked if the car belonged to somebody. Garcia said it was her car, and [Petitioner] replied, "My bad" and walked to his car. As Garcia continued parking, [Petitioner] came out of his car holding a gun, which he pointed at Garcia's head. Garcia panicked, backed up, and drove off.
A dispatch regarding the theft of the Accord went out that morning and Yuba County sheriff's deputies spotted and pursued the car, Todd's Accord, which was driven by [Petitioner]. The Accord was pursued by two marked patrol cars, at least one of which had emergency lights and sirens activated. The chase reached speeds of up to 80 miles per hour in a 35 mile-per-hour zone. [Petitioner] once crossed into oncoming traffic to pass a gravel truck during the chase. [Petitioner] stopped the Accord when the street became a dead-end at an apartment complex. He then left the car and fled through the apartment complex with deputies in pursuit. Ignoring a deputy's demand to stop, [Petitioner] kept running, eventually climbing a fence and running through a field, where he was stopped and arrested by a deputy and his K-9 police dog. [Petitioner] told the deputies his name was Hector Servantes.
The Accord was searched, and a deputy found Damian's wallet along with a loaded shotgun and extra ammunition. Garcia identified the shotgun and the Accord as the ones used in the attempted carjacking.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359, 362 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings unless the state court's 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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable--a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005)).
The petition for writ of habeas corpus sets forth one ground for relief. In ground one, Petitioner contends the trial court violated his constitutional rights by imposing upper term and consecutive sentences. Pet'r's Pet. 4. Specifically, Petitioner argues that the trial court imposed upper term and consecutive sentences based on facts not found by the jury beyond a reasonable doubt. While the trial court did commit error, Petitioner is not entitled to relief because the error was harmless.
A. Upper Term Sentences 1. Background
The record shows that the trial court imposed upper term sentences on count one (second degree robbery), count eight (assault with a deadly weapon and firearm enhancement), and the firearm enhancement in count eleven (assault with a deadly weapon). For count one, on the underlying offense of second degree robbery, the trial court imposed the upper term of five years because of Petitioner's "violent conduct" under Rule 4.421(b)(1) of the California Rules of Court:
[For c]ount I, violation of [s]section 211, [the c]court finds there to be no circumstances of mitigation and finds as an aggravating circumstance Rule [4.]421(b)(1), you've engaged in violent conduct which indicates you are a serious danger to . . . society. Appropriate term is the upper term . . . of five years.
The jury having found to be true the enhancement pursuant to Penal Code 12022.53(c), you are sentenced to serve 20 years. That is to be served ...