Jordan v. Malfi et al

Filing 60

ORDER DISMISSING CASE signed by Circuit Judge Milan D. Smith, Jr on 4/9/2009; application for a writ of habeas corpus is DENIED; clerk is directed to enter judgment and close the case. CASE CLOSED. (Gaydosh, J)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P e titio ne r Jo'Von Jordan, a state prisoner, has filed a petition for a writ of ha b e a s corpus pursuant to 28 U.S.C. § 2254(a). Pending before the court are J o rd a n' s petition for a writ of habeas corpus (Doc. 1), Jordan's supplemental me mo ra nd um of points and authority (Doc. 40), Respondent A. Malfi's answer (D o c . 41), and Jordan's response to Malfi's answer (Doc. 54). For the reasons d is c us s e d , Jordan's application is DENIED. I O n March 5, 2003, Jordan was convicted by a Sacramento County Superior C o urt jury of two counts of murder (Cal. Penal Code § 187(a)); multiple murder c irc ums ta nc e s (Cal. Penal Code § 190.2(a)(3)); and use of a firearm for each murder (C a l. Penal Code §§ 12022.5(a); 12022.53(b), (c), and (d)). Clerk's Transcript A . Malfi, Warden, et al. R e s p o nd e nts . / vs . O R D ER J o ' V o n Jordan P e titio ne r, N o . 2:06:cv-01599-MDS IN THE UNITED STATES DISTRICT COURT FO R THE EASTERN DISTRICT OF CALIFORNIA

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(C T ) at 363-65, 372-73. Jordan was sentenced to, and is currently serving, an a ggre ga te term of 90 years to life in prison. CT 10, 475-76. A J o rd a n filed a direct appeal of the judgment of conviction with the California C o urt of Appeal, Third Appellate District. In its decision affirming the judgment, the Court of Appeal summarized the relevant facts as follows:1

[J o rd a n] and Timothy Traylor, who were so close they were like brothers, w e re both associated with the Nogales Crips gang. [Jordan] was a member, b ut Traylor never did become a member. On the afternoon of November 29, 2 0 0 2 , [Jordan] and Traylor walked to East Coast Fashion, a clothing store on M a rys ville Boulevard. [Jordan] was wearing jeans and a white t-shirt. While the y were in the store, Hudson Augustus, who was known as "Artist," came into the store. Shortly thereafter, [Jordan's] girlfriend Tanaria Barkins and T a na ria ' s mother Dana Laws came into the store. Artist and his brother Gregory, also known as "Buckeye,"were part of the D e l Paso Heights Bloods, a rival gang to the Crips. [Jordan] and Traylor ma d e a purchase and were standing near the store's exit when Artist began a d d re s s ing them in a disrespectful tone. Artist said he and his brother were go ing to "whip" them. Traylor thought a fight was about to go down. He to ld Artist they did not want any problems and to keep it cool. Traylor walked out of the store onto the sidewalk and toward a nearby pizza p a rlo r. [Jordan] was right behind him, and Artist was already out on the s id e w a lk . When they were in front of the pizza parlor, Buckeye pulled his c a r up and jumped out. He ran up to Traylor and said something like, "what yo u, fuck you, talking about you don't want no problem." Buckeye made a fis t. When Traylor saw Buckeye's fist, he thought Buckeye was going to hit him, so he dropped the bag of newly-purchased clothes he was carrying and p re p a re d to defend himself in a fist fight. A s soon as Traylor dropped the bag, gunshots went off. The shots were so c lo s e to Traylor, he thought at first he had been hit. He saw Buckeye and A rtis t fall to the ground. He never saw [Jordan] after the gunshots. Traylor ra n to the pizza parlor, but the door was locked. He yelled at them to call 911. Willie Vains, who saw the shooting, came up and told Traylor to call 911. Traylor used his mother's cell phone to dial 911. He was disconnected, so he c a lle d it again. He talked to the 911 operator and said there had been a

S inc e Jordan has not raised a challenge to their accuracy, the factual findings o f the Court of Appeal are presumed correct . See 28 U.S.C. § 2254(e)(1).
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s ho o ting.2 T ra ylo r saw Barkins and Laws come out of the clothing store. They went to w a rd their car, where Laws's boyfriend, Alvin Williams, was waiting for the m. Laws asked Traylor if he wanted a ride. He got in the car and they d ro ve him home. While Traylor was in the car, the 911 operator called him b a c k . When Traylor got out of the car, he crossed the street to see his cousin, J ib ri Stepter. He told Stepter what had happened, and left the bag of clothes w ith Stepter before going across the street to his own house. Traylor's mother came home, and he told her what had happened. About 30 to 45 minutes after the shooting he called [Jordan]. Both Traylor and his mo the r talked to [Jordan]. Traylor asked why [Jordan] had put him in such a b a d position. [Jordan] said he got tired of fighting. After talking to [Jordan], T ra ylo r' s mother contacted the police, and Traylor went to the police station to be questioned. Five eyewitnesses (other than Traylor and [Jordan]) testified. Willie Vains live d in the neighborhood and was a very close friend of the victims. As V a ins was crossing the street to the pizza parlor, he saw the victims and two o the r men. One of the other men was Traylor, whom he described as a "tall d a rk skinned" man. He knew Traylor from the neighborhood, and recognized him because of his distinctive gold teeth. He was not friends with Traylor, b ut he knew him. Vains was a Blood and Traylor was a Crip, so he would no t hang out with him. Vains testified the "shorter dude that was with Tim, he had braids, he pulled a gun out and shot Artist first." Then he shot B uc k e ye . The shooter ran away up Balsam. Traylor just stood there, hys te ric a l. Vains testified the shooter had about the same complexion as V a ins , or maybe a little lighter, and was wearing jeans and a white shirt. Vains remembered that Traylor had a bag in his hands, and remembered T ra ylo r talking on the cell phone. Traylor stayed around five or six minutes, the n he left. Denise Wesley was another eyewitness. She heard the gunshots and saw a light-s k inne d person with a gun in his hand going north on Balsam. J a me s Crant, who was walking to a nearby car wash, heard the gunshots and s a w a man in tan pants, a white t-shirt and black head scarf "squeezing the trigge r away." The shooter was light-skinned, about 5 [sic] feet, seven or e ight inches tall and weighed around 160 or 170 pounds. After the shooting, G ra nt saw the shooter walk around behind the pizza place down Balsam and d is a p p e a r. Grant assumed the shooter got in a car and left. Kenneth Williams was at the nearby carwash with his girlfriend Yakima S mith. Kenneth Williams talked to a police officer a few minutes after the s ho o ting. He told the officer he saw a thin, medium-complexioned black ma le approximately five feet, eight inches tall wearing a white t-shirt and b la c k or blue pants holding a gun in his outstretched hand. He said he saw

T he tape of this call was played to the jury. Phone records confirmed two c a lls to 911 were placed from Traylor's mother's cell phone within seconds of each o the r.
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the man with the gun run north on Balsam. At trial Kenneth Williams claimed he had not seen any of this, and that his girlfriend, Smith, was the one who s a w it. He testified he told the officer he had seen everything because Smith d id not want to get involved. Jess Green was a witness for the defense. He saw someone come around the c o rne r of the pizza parlor and start shooting. The shooter was six feet tall and w e a ring a white shirt and dark pants. He was Black, and his skin color was k ind of dark, but not real dark. After the shooting, the person ran around the p iz z a parlor to northbound Balsam with the gun in his hand. Neither Alvin Williams nor his girlfriend, Dana Laws, saw the shooting take p la c e . Alvin Williams was parked across the street from East Coast Fashion, a nd ducked down when he heard gunshots. Laws was inside East Coast Fa s hio n with her daughter Tanaria Barkins, [Jordan's] girlfriend. At trial all thre e testified Traylor pushed his way into the car after the shooting. Traylor ha d testified Laws asked him if he wanted a ride home. When the prosecutor a nd his investigator told Williams they wanted to talk to him about the s ho o tings , he told them he wanted nothing to do with it because he had p e o p le "bothering" him. While the prosecutor was talking to him Laws was s c re a ming "stick to your story" and "you didn't see anything." B a rk ins testified Traylor pulled something from his waist band and gave it to a boy who came to meet Traylor when they dropped him off. The person w ho met Traylor, Jibri Stepter, testified Traylor left a bag of clothes with him, b ut nothing else. [Jordan] took the stand and testified he saw Traylor pull a gun out of his p o c k e t and start shooting. [Jordan] ran as soon as the first shot went off. [J o rd a n] also produced as a witness Kenyatta Hudson, who testified he was a c q ua inte d with both Traylor and [Jordan]. Hudson testified that about a mo nth after the shootings he had a telephone conversation with Traylor, and T ra ylo r told him it was too "hot" for him because of what had just happened. However, Traylor did not tell Hudson he, rather than [Jordan], had done the s ho o ting. Lodged Doc. 2 (Opinion) at 2-7. B O n March 29, 2005, the California Court of Appeal for the Third Appellate D is tric t affirmed Jordan's conviction on his direct appeal. Opinion at 2. Jordan's p e titio n for rehearing of his case was denied on April 15, 2005. Lodged Doc. 2 (D e nia l). On April 2, 2005, Jordan sought review in the California Supreme Court. Doc. 1, appdx. 2. The California Supreme Court denied the petition on July 13, 2 0 0 5 . Doc. 1 at 3. C O n July 19, 2006, Jordan filed an application for a writ of habeas corpus in
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this court pursuant to 28 U.S.C. § 2254(a). Doc. 1. Malfi acknowledges that J o rd a n has exhausted his grounds for relief. Doc. 41 at 3. II A J o rd a n' s petition was filed after the enactment of the Antiterrorism and E ffe c tive Death Penalty Act of 1996 (AEDPA). Under AEDPA, a federal court has limite d power to grant habeas corpus relief. AEDPA provides that: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be gra nte d with respect to any claim that was adjudicated on the me rits in State court proceedings unless the adjudication of the c la im -(1 ) resulted in a decision that was contrary to, or involved an unre a s o na b le application of, clearly established Federal law, as d e te rmine d by the Supreme Court of the United States; or (2 ) resulted in a decision that was based on an unreasonable d e te rmina tio n of the facts in light of the evidence presented in the State court proceeding. 2 8 U.S.C. § 2254(d). A state court decision may result in a decision that is " c o ntra ry to" established federal law if it "applies a rule that contradicts the go ve rning law set forth in our cases" or "confronts a set of facts that are materially ind is tinguis ha b le from a decision of the Court and nevertheless arrives at a result d iffe re nt from our precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). "[C]learly established Federal law" is defined as "the governing legal principle or p rinc ip le s set forth by the Supreme Court at the time the state court renders its d e c is io n." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). The state court's d e c is io n may be "an unreasonable determination" if "the state court identifies the c o rre c t governing legal principle" but applies the principle unreasonably to the p ris o ne r' s factual situation. Williams, 549 U.S. at 413. When the state court does not explain its reasoning for denying a habeas p e titio n, the federal court "must conduct an independent review of the record to d e te rmine whether the state court's decision was objectively reasonable." Sass v.
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C a l. Bd. of Prison Terms, 461 F.3d 1123, 1127 (9th Cir. 2006). State court d e c is io ns may only be subject to federal habeas relief if they are unreasonable, not me re ly erroneous. Early v. Packer, 537 U.S. 3, 11 (2002). B J o rd a n' s petition for habeas relief is subject to the AEDPA requirement that the prior state court decisions refusing his petition are unreasonable, that is, contrary to federal law, or an unreasonable determination of the facts. "In determining w he the r a state court decision is contrary to federal law, we look to the state's last re a s o ne d decision," in this case, the opinion handed down by the California Court of A p p e a l on Jordan's direct appeal. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2 0 0 2 ); see also Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). The Court of A p p e a l addressed each of Jordan's claims in a reasoned opinion, which the court no w reviews. See Opinion. C J o rd a n asserts that he is entitled to habeas corpus relief on six grounds. First, he argues that the trial court's reading of CALJIC 2.28, a jury instruction on e va lua tio n of witnesses, unfairly penalized Jordan for his counsel's discovery vio la tio n. Second, he argues that his trial counsel's stipulation not to report the oral re a d ing of jury instructions violated his due process rights and constituted ine ffe c tive assistance of counsel. Third, he argues that his trial counsel rendered ine ffe c tive assistance when he failed to object and move to strike the improperly a d mitte d opinion of a lay witness concerning Jordan's guilt. Fourth, he argues that the trial court improperly excluded impeachment evidence directed against a key p ro s e c utio n witness. Fifth, Jordan argues that the trial court imposed consecutive s e nte nc e s rather than concurrent sentences for each of his convictions in violation of his Sixth Amendment rights. Sixth and finally, he argues that the enhancement imp o s e d under § 12022.53 of the California Penal Code was not authorized by the jury' s findings, and therefore violates his Sixth and Fourteenth Amendment rights to
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a jury trial. Doc. 1. The court addresses each of these claims in this Order. I II A J o rd a n argues that the trial court's reading of CALJIC 2.28 was an improper d is c o ve ry sanction that deprived him of due process. The trial court instructed the jury under CALJIC 2.28 to sanction defense counsel's discovery violation. R e p o rte r' s Transcript (RT) 730-31. Jordan's defense counsel had admittedly made a late disclosure of his intention to call Kenyatta Hudson as a witness, on the basis tha t he feared timely disclosure would endanger Hudson's life. RT 665. The trial jud ge read CALJIC 2.28 as follows to the jury when Hudson was called as a w itne s s : T he prosecution and the defense are required to disclose to each other before the trial the evidence that each intends to present at the trial so as to promote the ascertainment of the truth, to save the court time and avoid any surprise w hic h may arise during the course of the trial. Concealment of evidence a nd /o r delay in the disclosure of the evidence may deny a party a sufficient o p p o rtunity to subpoena necessary witnesses or produce evidence which may e xis t to rebut the complying [sic] parties evidence. Disclosure of evidence a re [sic] required to be made at least 30 days in advance of trial. Any new e vid e nc e discovered within 30 days of trial must be disclosed immediately. In this case the defendant did either concealed [sic] or failed to timely d is c lo s e evidence consisting of written summary of an interview of this w itne s s Kenyatta Hudson. Although the defendant [sic] failure to timely d is c lo s e the evidence was without lawful justification, the Court has, under the law, permitted the production of this evidence during the trial. The weight a nd significance of any delay in disclosure is a matter for your consideration. You should consider whether it [sic] untimely disclosed evidence pertains to a fa c t of importance to something trivial or to the subject matter already e s ta b lis he d by other credible evidence. RT 783-84. The court then gave this instruction again on the conclusion of the case. CT 339-40. Jordan argues that the instruction violated his rights by ascribing the d is c o ve ry violation to Jordan personally, and inviting the jury to convict him on the b a s is of the discovery violation rather than the alleged facts. Accordingly, Jordan a rgue s he was prejudiced. In its decision on direct appeal, the California Court of A p p e a l noted that two of its recent cases had accepted arguments similar to Jordan's
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re ga rd ing the jury instruction at issue. However, the Court of Appeal distinguished the facts of People v. Bell, 12 Cal. Rptr. 3d 808 (Cal. Ct. App. 2004), and People v. C a b r a l, 17 Cal. Rptr. 3d 456 (Cal. Ct. App. 2004), finding that the defendants in tho s e cases were prejudiced as a result of the jury instruction, but in Jordan's case " it is not reasonably probable [Jordan] would have achieved a more favorable result ha d the court not given CALJIC No. 2.28." Opinion at 10. Federal law, as established by the Supreme Court at the time of Jordan's c a s e , requires a finding that a trial error "`had substantial and injurious effect or influe nc e in determining the jury's verdict'" before habeas relief can be granted. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United S ta te s , 328 U.S. 750, 776 (1946)). Trial errors are defined as those that "occur[] d uring the presentation of the case to the jury," and "may therefore be quantitatively a s s e s s e d in the context of other evidence presented" to determine its effect on the tria l. Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991). Such errors are treated d iffe re ntly than "structural defects in the constitution of the trial mechanism," which infe c t the entire trial process and cannot be individually assessed. Id. at 309. The a lle ge d error here, a single jury instruction, is properly categorized as a trial error ra the r than a structural defect, because it occurred during presentation of the case to the jury and may be assessed in the context of the evidence presented. The Court of Appeal denied Jordan's direct appeal after reviewing this claim fo r prejudice, finding that it was not "reasonably probable" that Jordan would have a achieved "a more favorable result" absent the trial error. Opinion at 10. This s ta nd a rd for harmless error is not contradictory to the federal standard for harmless e rro r, which requires a showing that the error "had substantial or injurious effect or influe nc e in determining the jury's verdict." Kotteakos, 328 U.S. at 776. Nor did the state court's decision on this point apply the facts of this case unreasonably. Although Hudson's testimony was exculpatory in that it indicated Traylor was the s ho o te r, rather than Jordan, it was contradicted by four other eye-witnesses who
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id e ntifie d the shooter as having light to medium skin and fleeing the scene imme d ia te ly after the shooting. The record indicates that Traylor has dark skin and re ma ine d at the scene for several minutes after the shooting, calling 911 twice. In light of this evidence, the state court was not unreasonable in ruling that it was not re a s o na b ly probable that the faulty jury instruction changed the jury's verdict. Because the error did not substantially influence the jury's verdict, Jordan is not e ntitle d to habeas relief on this ground. B J o rd a n' s second argument is that his counsel's agreed stipulation that the oral re a d ing of jury instructions need not be reported in the record constituted ineffective a s s is ta nc e of counsel. At the conclusion of the instructions conference, defense c o uns e l stipulated along with the prosecution that the court's oral reading of the jury ins truc tio ns it had submitted in written form to the jury need not be recorded as part o f the trial transcript. RT 1043-45. Consequently, the final record of the trial does no t include a transcript of this oral rendition. Jordan argues that, as a result, he has b e e n denied the opportunity to review those instructions for accuracy on appeal, and tha t his attorney's failure to preserve the oral reading of the instructions for appeal w a s ineffective assistance of counsel. The California Court of Appeal ruled on this argument in conjunction with J o rd a n' s claim that trial counsel rendered ineffective assistance when he failed to o b je c t and move to strike the improperly admitted opinion of a lay witness as to J o rd a n' s guilt. The California Court of Appeal ruled that Jordan could not prevail o n either claim of ineffective assistance of counsel because he had not shown that the allegedly deficient performance resulted in prejudice. Opinion at 12. The court c o nc lud e d that even assuming Jordan's counsel's stipulation to forego transcription o f the oral jury instructions was deficient performance, there is no evidence that J o rd a n was prejudiced. Absent affirmative evidence that the trial court made a mis ta k e in reading the jury instructions, the court declined to assume error. Id.
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S imila rly, as discussed in further detail below, the court declined to find ineffective a s s is ta nc e of counsel because there could have been tactical explanations for the fa ilure to object. Id. A s the Supreme Court has indicated, "[t]he benchmark for judging any claim o f ineffectiveness must be whether counsel's conduct so undermined the proper func tio ning of the adversarial process that the trial cannot be relied on as having p ro d uc e d a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). To p re va il on a claim for ineffective assistance of counsel, a defendant must first show his "counsel made errors so serious that counsel was not functioning as the ` c o uns e l' guaranteed the defendant by the Sixth Amendment" and then "that the d e fic ie nt performance prejudiced the defense." Id. at 687. In cases such as this w he re there is no more specific authority on whether counsel's actions constituted ine ffe c tive assistance of counsel, the court must recur to the Strickland standard. Knowles v. Mirzayance, 2009 LEXIS 2329 at *23, No. 07-1315 (U.S. March 24, 2 0 0 9 ). Even if Jordan could successfully prove that his trial counsel's stipulation not to record the court's oral rendition of the jury instructions was error, he could not p re va il on his claim without a showing that this error prejudiced his case. As the C o urt of Appeal found, Jordan has presented no evidence of prejudice, only a vague s ugge s tio n that something might have been found had the reading been recorded, an e rro r that presumably his counsel failed to catch during presentation of the jury ins truc tio ns themselves. The Court of Appeal's rejection of this claim was not unre a s o na b le . C Jordan argues that he was denied effective assistance of counsel when his tria l counsel failed to object to Detective Husted's direct examination testimony that T ra ylo r was a credible witness and not the shooter. Jordan's counsel did object to the government's follow up question asking why Husted did not believe Traylor was
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guilty. In denying Jordan's appeal on this ground, the Court of Appeal wrote that: mere failure to object to evidence rarely establishes counsel's incompetence b e c a us e it usually involves tactical decisions on counsel's part. It is possible c o uns e l did not object earlier because he did not wish to draw attention to H us te d ' s testimony or to appear antagonistic, or he may have simply felt H us te d ' s testimony on the matter was unimportant. Opinion at 13. In evaluating counsel's performance for the purposes of determining ine ffe c tive assistance of counsel, the court must "determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of p ro fe s s io na lly competent assistance." Strickland, 466 U.S. at 690. The court s ho uld also note that "counsel is strongly presumed to have rendered adequate a s s is ta nc e and made all significant decisions in the exercise of reasonable p ro fe s s io na l judgment." Id. Under this standard of review, the court cannot say that the Court of Appeal's ruling was unreasonable. Established federal law gives broad deference to defense c o uns e l' s tactical decision making and applies a presumption of adequate a s s is ta nc e . Accordingly, this argument also fails. D J o rd a n argues that the trial court committed reversible error by preventing him from impeaching Vains with Vains's prior felony conviction. During Vains's c ro s s -e xa mina tio n, Jordan's counsel asked him if he had previously been convicted o f any felonies. Before Vains could complete his answer, the government objected a nd the trial judge sustained the objection. RT 175. When defense counsel p e rs is te d in that line of questioning, he was rebuked by the trial judge. RT 176. After Vains finished testifying, and outside the presence of the jury, the trial court furthe r admonished defense counsel for his "attempts to impeach the witness with a fe lo ny conviction that [he knew] full well is inadmissible." RT 180. Jordan argues tha t the trial court erroneously excluded the statement on the belief that
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imp e a c hme nt is impermissible unless approved in advance. He cites as support the tria l court's rebuking statement that "[he] didn't ask for permission to impeach the w itne s s with that conviction." RT 180. The Court of Appeal rejected Jordan's characterization of the trial court's ruling. It found that, although "[t]he record is silent as to why the trial court b e lie ve d the prior conviction was inadmissible," it could have been because the c o nvic tio n fell within one of the exceptions enumerated in California Evidence Code § 788 (conviction has been pardoned, certificate of rehabilitation granted, or witness ha s otherwise been relieved of penalties), or properly excluded pursuant to § 352 for b e ing more prejudicial than probative, unduly time consuming, confusing, or c re a ting a substantial danger of misleading the jury. Opinion at 14-16. The Court o f Appeal declined to assume that the prior conviction was omitted for an improper re a s o n in absence of evidence in the record indicating error. Id. at 16. The right to cross-examine a witness is protected by the Sixth Amendment, a nd denial of that right is reversible error, with no need to show prejudice. Davis v. A la s k a , 415 U.S. 308, 318 (1974). However, "`[t]he right to present relevant te s timo ny is not without limitation.'" Michigan v. Lucas, 500 U.S. 145, 149 (1998) (q uo ting Rock v. Arkansas, 483 U.S. 44, 55 (1987)). Trial judges have wide la titud e "to impose reasonable limits on cross-examination based on concerns about, a mo ng other things, harassment, prejudice, confusion of the issues, the witness' s a fe ty, or interrogation that is repetitive or only marginally relevant." Delaware v. Va n Arsdall, 475 U.S. 673, 679 (1986). The Court of Appeal was not unreasonable in rejecting Jordan's argument tha t the trial court excluded the evidence under the erroneous belief that Jordan ne e d e d prior permission to impeach a witness. There is no evidence in the record to s up p o rt such a conclusion other than one clause of the trial court's rebuke to J o rd a n' s trial counsel, taken out of context. Given the wide latitude trial judges ha ve when ruling on the admissibility of cross-examination, the Court of Appeal was
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a ls o not unreasonable in concluding that the trial court's ruling was not reversible e rro r. E J o rd a n claims that the trial court's imposition of consecutive sentences rather tha n concurrent sentences violated his Sixth Amendment rights, because it increased the length of his sentence beyond the statutory maximum without a jury finding of a d d itio na l justifying facts. The California Penal Code requires the judgment of c o nvic tio n for two or more crimes to specify whether the terms of imprisonment for the multiple convictions will run concurrently or consecutively. Cal. Pen. Code. § 6 6 9 . If the court fails to specify, the terms of imprisonment will run concurrently. Id. Under California law, Jordan asserts, the imposition of consecutive terms re q uire s the support of expressly identified aggravating facts. See People v. Leung, 7 Cal. Rptr. 2d 290, 303 (Cal. Ct. App. 1992) ("In choosing between consecutive a nd concurrent terms, the court must decide whether the particular circumstances at is s ue renders the collective group of offenses distinctively worse than the group of o ffe ns e s would be were that circumstance not present."). Jordan alleges the trial c o urt violated the Sixth Amendment by relying on its own factfinding to impose the c o ns e c utive sentences. The Court of Appeal rejected Jordan's claim that his consecutive sentences re p re s e nte d an upward deviation from the sentencing norm in violation of the Sixth A me nd me nt, as found by the Supreme Court in Blakely v. Washington, 542 U.S. 2 9 6 , 303-04 (2004) (holding that a trial court judge may not impose a sentence a b o ve the statutory minimum, defined as "the maximum sentence a judge may imp o s e . . . without any additional findings"). The Court of Appeal reasoned that " s e c tio n 669 does not direct the court to impose concurrent or consecutive s e nte nc e s , nor does it require any particular finding before consecutive sentences ma y be imposed." Opinion at 27. It noted further, [w]hile there is a statutory presumption in favor of the middle term as the
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s e nte nc e for an offense, there is no comparable statutory presumption in favor o f concurrent rather than consecutive sentences for multiple offenses except w he re consecutive sentencing is statutorily required. The trial court is re q uire d to determine whether a sentence shall be consecutive or concurrent b ut is not required to presume in favor of concurrent sentencing. Pe o p le v. Reeder, 200 Cal. Rptr. 479, 495 (Cal. Ct. App. 1984) (internal citation o mitte d ). Therefore, because there is no right to concurrent sentences, the statutory ma ximum in any case is "an aggregate consecutive term. Thus, when the court e xe rc is e s its discretion to impose a consecutive sentence, the defendant has no right to a jury determination of the facts the court deems relevant to that determination." Opinion at 28. It is established federal law that "state courts are the ultimate expositors of s ta te law, and that we are bound by their constructions except in extreme c irc ums ta nc e s ," as when the state court interpretation is "an `obvious subterfuge to e va d e consideration of a federal issue.'" Mullaney v. Wilbur, 421 U.S. 684, 691, n.1 1 (1975) (quoting Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 129 (1 9 4 5 )) (internal citations omitted). The Court of Appeal's interpretation of C a lifo rnia Penal Code § 669 is therefore entitled to federal deference absent any e vid e nc e that the interpretation is meant to evade consideration of a federal issue. The Court of Appeal acknowledged that trial judges are expected to provide jus tific a tio n for imposing consecutive sentences over concurrent sentences, but no te s that neither the statute nor the rules of the court compel a specific result in any d e line a te d circumstances. Opinion at 27. In that respect, judicial discretion in imp o s ing consecutive or concurrent terms is distinguishable from decisions going b e yo nd the Federal Guidelines' provisions subject to United States v. Booker, 543 U .S . 220 (2005). The Court of Appeal concluded that "[t]he Blakely line of cases d o e s not prohibit judicial fact-finding in the exercise of discretion to impose a s e nte nc e within the statutory maximum range." Opinion at 28. This conclusion is no t an unreasonable application of federal law, which, at the time of the Court of
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A p p e a l' s opinion, had not yet applied the reasoning of Blakely and Booker to the d e c is io n of concurrent or consecutive terms. Jordan's reference to Oregon v. Ice, in which the Supreme Court ultimately addressed the issue, is unhelpful to his cause, since the Court concluded in that case tha t "[t]he decision to impose sentences consecutively is not within the jury func tio n" covered under the Blakely line of cases, and that the Sixth Amendment's re s tric tio n on judge-found facts does not apply to imposition of concurrent or c o ns e c utive sentences. 129 S.Ct. 711, 718 (2008). Because AEDPA requires re vie w of the state court decision on the basis of federal law established at the time o f that decision, see Andrade, 538 U.S. at 71, the court merely notes that the ruling in Ice supports the conclusion that the Court of Appeal's interpretation of federal la w was not an unreasonable application of that law. F J o rd a n' s final argument in support of his petition for habeas corpus is that he w a s improperly sentenced for a firearms enhancement which was not actually found b y the jury. Established federal law holds that "any fact that increases the penalty fo r a crime beyond the prescribed statutory maximum must be submitted to a jury, a nd proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 4 9 0 (2000). Jordan was charged with a sentencing enhancement on the ground that he used a firearm in the course of a felony in violation of California Penal Code § 1 2 0 2 2 .5 3(b ), (c), and (d). Subsection (b) imposes a consecutive 10 year e nha nc e me nt for personally using a firearm in the commission of a felony, s ub s e c tio n (c) imposes a consecutive 20 year term for personally and intentionally d is c ha rging the firearm, and subsection (d) imposes a consecutive term of 25 years to life for personally and intentionally discharging a firearm and proximately causing gre a t bodily injury to any person other than an accomplice. As the Court of Appeal observed, "[t]he trial court instructed the jury p urs ua nt to the language of subdivision (d) of section 12022.53. However, for
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re a s o ns unknown the verdict form completed and signed by the jury foreperson and to which the entire jury attested was limited to the language of subdivision (b)." Opinion at 28-29. In acknowledging the trial court's error in imposing the enhanced s e nte nc e found in (d) despite the jury's limited finding, the Court of Appeal declined to reverse the sentence on the basis that the error was harmless. The Court of A p p e a l interpreted Apprendi, and its prodigy to allow for harmless error review, and o nly require reversal when it could not be "shown beyond a reasonable doubt that the error was harmless." It further reasoned that, in finding Jordan guilty of the two murd e rs , the jury must necessarily have found [that he] discharged the gun and killed the victims. The jury clearly found [Jordan] caused the death of the victims w he n it found [him] guilty of their murder. There was no evidence this was a c a s e in which [Jordan] beat the victims to death with the butt of the gun, or c a us e d their death in any way other than by discharging the bullets from the gun into their bodies. O p inio n at 29-30. Jordan challenges the Court of Appeal's ruling on the argument tha t harmless error analysis does not apply in case such as this, where, he argues, " the error is structural, and requires reversal per se." Doc. 54 at 15. Established federal law in effect at the time of the Court of Appeal's decision a c k no w le d ge d that not all constitutional errors require automatic reversal; in fact, all tria l errors aside from structural defects are subject to harmless-error standards. Fulminante, 499 U.S. at 306, 309 (the Court adopts the "general rule that a c o ns titutio na l error does not automatically require reversal of a conviction," rather " mo s t constitutional errors can be harmless"); see also United States v. Dominguez B e n ite z , 542 U.S. 74, 81 (2004) ("It is only for certain structural errors undermining the fairness of a criminal proceeding as a whole that even preserved error requires re ve rs a l without regard to the mistake's effect on the proceeding."). The error a lle ge d in this case is not clearly "structural," in the way that total deprivation of c o uns e l, the right to self-representation, a biased judge, and a jury that excludes me mb e rs of the juror's race are errors "affecting the framework within which the
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tria l proceeds." Fulminante, 499 U.S. at 309-10. In light of the highly deferential standard required by AEDPA, the state c o urt' s conclusion that the error was subject to harmless error review was not unre a s o na b le . In addition, the state court was not unreasonable in concluding that the error was harmless. The jury must have concluded that Jordan shot the victims in order to find him guilty of murder, therefore the corresponding enhancement is a p p ro p ria te . CONCLUSION A c c o rd ingly, it is hereby ORDERED that Jordan's application for a writ of ha b e a s corpus is DENIED. The Clerk is directed to enter judgment and close the case.

D A T E D : April 9, 2009

/s / Milan D. Smith, Jr. UNITED STATES CIRCUIT JUDGE S itting by Designation

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