The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner, Seneka Rayshawn Hill, is a state prisoner proceeding, pro se, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an aggregate sentence of twenty years in state prison after a jury convicted him on two counts of second degree robbery (Cal. Penal Code § 211) and one count of making terrorist threats (Id. § 422). The jury also found true the sentencing enhancement allegation that Petitioner personally used a firearm during the commission of both robberies (Id. § 12022.53(b)). Petitioner raises three claims in this federal habeas petition; specifically: (1) The trial court failed to conduct a hearing regarding Petitioner's competency to stand trial after Petitioner stated that he was "hearing voices," violating his right to due process ("Claim I"); (2) the trial court erred in its instruction to the jury regarding reasonable doubt, thereby depriving Petitioner of his right to due process; and, (3) the trial court erred in imposing the upper term sentence as to one of the robbery counts because it relied on four aggravating factors which were not submitted to the jury. For the reasons stated herein, the federal habeas petition should be denied.
I. FACTUAL AND PROCEDURAL BACKGROUND*fn1
These cases arise from robbery incidents at two different locations, involving two different victims.
On June 22, 2006, Ashok Chandra pulled into a Valero Gas Station on 47th Avenue near 47th Street in Sacramento. Chandra went inside the station to buy a soda while he waited for his gas to pump. As he stood in line, he noticed Hill and [Petitioner's co-defendant] Young standing together talking and looking at him. Chandra noticed Hill change his T-shirt.
Chandra paid for his soda, walked back outside and stood by his truck, filling a gas container he brought with him. Hill approached Chandra and asked if he had change for a $20 bill.FN2 Chandra said he did not. Hill asked several more times, to no avail. Hill said he knew Chandra had change because he had seen Chandra's wallet. He reached toward Chandra's pocket several times, but Chandra pushed his hand away each time. Hill lifted his shirt, revealing a handgun stuck in his waistband. Fearing for his life, Chandra let Hill take his wallet and cell phone. Hill ran across the street to another gas station, where he got into a light blue, four-door sedan and sped away.
FN2. At trial, Chandra testified that he later remembered a second individual from inside the store was standing behind him and holding him during the robbery. However, he admitted his memory was not clear on that point.
Chandra identified Hill on the gas station's surveillance videotape. The tape showed that Hill and Young entered the store at the same time, and focused on Chandra as they stood together talking. Chandra left the store, followed by Hill. Young briefly remained in line, watching Hill, and then left the store a minute later. Videotape from a store camera shows a light blue, four-door sedan moving through the Valero parking lot approximately 20 seconds later. Chandra told detectives the vehicle depicted in the video leaving the Valero station looked similar to the one Hill got into following the robbery. Photographs and registration documents confirmed that Young owned a light blue, four-door sedan. Detective Mike French later identified Hill and Young in the Valero surveillance videotape.
On June 30, 3006 [sic], Richard Rosa walked to his job at DD Discounts on Stockton Boulevard in Sacramento. His walk took him past Der Weinerschnitzel, where he noticed two men standing outside. When he arrived at DD Discounts, the store was still closed. As he waited to be let in, three individuals, including the two who had been standing outside Der Weinerschnitzel, approached. One of them, whom Rosa later identified as Hill, stood in front of Rosa and made small talk while the other two men positioned themselves behind Rosa. Hill pulled a gun out of his pocket, stuck it in Rosa's ribs, and demanded his "loot" and a ring Rosa was wearing. Rosa gave Hill his money and the ring, and Hill and the other two men ran off. Rosa identified Hill in the store's surveillance videotape and in a subsequent photo lineup. Just prior to the robbery that morning, Nancy Skow, a manager at Der Weinerschnitzel, had a confrontation with Hill and two other men in the restaurant. Skow eventually told Hill and his two cohorts "not to come back in the [restaurant] again." After the three men left the restaurant, Skow noticed them walking toward DD Discount and, four to five minutes later, saw them running from the store. Skow first identified Hill in the restaurant's surveillance videotape, identified him a second time with "one hundred percent" certainty in a subsequent field showup, and ultimately identified him at trial. Skow identified Young with "eighty percent" certainty in the field showup, and again at trial. Mike French, a detective who was also working on the Rosa robbery, identified Hill and Young in the Valero Gas Station surveillance videotape.
Hill and Young were charged together by consolidated complaint. Count one charged both defendants with the robbery of Chandra and specially alleged that Hill personally used a firearm and Young was armed with a firearm. Count two charged both defendants with the robbery of Rosa, specially alleging personal use of a firearm as to Hill and an arming enhancement as to Young. Count three charged Hill with making terrorist threats against another victim. . . .
On the eve of trial, at defendant Hill's request, the court held a Marsden hearing.FN3 Hill explained the bases for his request, including that he had expressed to his attorney "that I'm not understanding and things have to be explained to me very carefully" and told counsel "numerous times that I was hearing voices, and I have nightmares of being found guilty of a crime that I didn't commit." The court rejected all of the bases for the motion with the exception of one related to a potential alibi witness. The matter was continued to allow counsel time to gather information on that issue.
FN3. People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
The following morning, defense counsel informed the court he had a doubt as to defendant Hill's competency. The court first completed the Marsden hearing, denying defendant's request for substitute counsel, and then turned to the competency issue. Defense counsel explained that the basis for his doubt was the fact that defendant had told him the prior morning, during the Marsden hearing, that "he was hearing voices." The following discussion took place between the court and Hill's counsel, attorney Hansen: "THE COURT: Tell me how the subject came up and what he said in the morning. "MR. HANSEN: Mr. Hill was talking to me about what was happening today, and that he was hearing voices, and that he wanted a Marsden [h]earing. And there were probably a couple of other comments that I can't recall exactly what he said but it was in the context of preparing today or getting ready to start the trial. "THE COURT: All right. And then yesterday during the Marsden
[h]earing I heard him say something about hearing voices. Is that what you're referring to? "MR. HANSEN: I am, Your Honor. "THE COURT: Anything else? "MR. HANSEN: The fact that he indicated that he was filing a lawsuit against me caused me some concern. "THE COURT: Concern about what? "MR. HANSEN: Well, I haven't been served with any lawsuit. I don't know if that is true. It's an odd statement. I find it to be an odd statement. "THE COURT: Have you noticed any other indication of a possible mental disorder before yesterday in your interactions with Mr. Hill, Mr. Hansen? "MR. HANSEN: I would say that I'm not a doctor, but I will inform the court now that I discussed this issue with others last night in contemplation of expressing the doubt. But I believe there is a condition of fixation that may be occurring. But I- "THE COURT: Would you please answer my question, Mr. Hansen[?] "MR. HANSEN: Other than that, I have not observed anything else that I would say is a mental disorder. "THE COURT: Do you remember what my question was? "MR. HANSEN: I believe your question was, have I observed any other activities or behaviors that indicate there [were] any mental problems. "THE COURT: Before yesterday morning. "MR. HANSEN: Correct. "THE COURT: I take it your answer is no? "MR. HANSEN: The answer is no. "THE COURT: Anything you would like to add, Mr. Hansen? "MR. HANSEN: No."
The court found, "[b]ased on what I heard from Mr. Hill yesterday, and based on what I heard from Mr. Hansen this morning," that defendant was engaging in "manipulative malingering," and concluded there was no substantial evidence of incompetence and no need to suspend the proceedings.
The jury found defendants guilty of all charges and found all of the special allegations true. . . . The court imposed sentence as follows: Hill was sentenced to an aggregate prison term of 20 years, comprised of five years (the upper term) as to count one, one year (one-third the middle term) on count two, and eight months (one-third the middle term) on count three, plus 10 years for the firearm use enhancement on count one and three years four months for the firearm use enhancement on count two. . . .
The court ordered Hill to pay various fees and fines, including a $200 restitution fine pursuant to section 1202.4, subdivision (b), and a $200 restitution fine (suspended) pursuant to section 1202.45. . .
II. 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 only be granted for violations of the Constitution or laws of the United States. See 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)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. § 2254(d); Perry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000).
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 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)).
III. ANALYSIS OF PETITIONER'S CLAIMS
In Claim I, Petitioner contends that the trial court violated his constitutional right to due process when it failed to hold a hearing to determine whether Petitioner was competent to stand trial after Petitioner's counsel expressed doubt as to his competency and he told the court that he was hearing voices. The last reasoned state court decision on this claim, and each of Petitioner's claims, is the decision by the California Court of Appeal on Petitioner's direct appeal from his conviction. Ylst, 501 U.S. at 803. In concluding that Petitioner's right to not stand trial if incompetent was not violated, the Court of Appeal stated as follows:
Section 1368 Competency Hearing
Defendant Hill contends the trial court erred by failing to conduct a section 1368 hearing after he informed his ...