Hill v. Lewis
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Timothy J. Bommer on 10/20/11 ORDERING that petitioner's request for an evidentiary hearing is DENIED; and RECOMMENDING that the petition for writ of habeas corpus be DENIED. Petition 1 referred to Judge Garland F. Burrell, Jr.. Within 21 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. (Kastilahn, A)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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SENEKA R. HILL,
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Petitioner,
2:10 - cv - 1413 - GEB TJB
Respondent.
ORDER, FINDINGS AND
vs.
G.D. LEWIS,
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RECOMMENDATIONS
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Petitioner, Seneka Rayshawn Hill, is a state prisoner proceeding, pro se, with a petition
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for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an
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aggregate sentence of twenty years in state prison after a jury convicted him on two counts of
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second degree robbery (Cal. Penal Code § 211) and one count of making terrorist threats (Id. §
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422). The jury also found true the sentencing enhancement allegation that Petitioner personally
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used a firearm during the commission of both robberies (Id. § 12022.53(b)). Petitioner raises
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three claims in this federal habeas petition; specifically: (1) The trial court failed to conduct a
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hearing regarding Petitioner’s competency to stand trial after Petitioner stated that he was
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“hearing voices,” violating his right to due process (“Claim I”); (2) the trial court erred in its
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instruction to the jury regarding reasonable doubt, thereby depriving Petitioner of his right to due
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process; and, (3) the trial court erred in imposing the upper term sentence as to one of the robbery
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counts because it relied on four aggravating factors which were not submitted to the jury. For the
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reasons stated herein, the federal habeas petition should be denied.
I. FACTUAL AND PROCEDURAL BACKGROUND1
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These cases arise from robbery incidents at two different
locations, involving two different victims.
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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 codefendant] Young standing together talking and looking at him.
Chandra noticed Hill change his T-shirt.
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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.
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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.
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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
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The factual and procedural background is taken from the California Court of
Appeal, Third Appellate District decision on direct appeal from March 2009 and filed in this
Court by Respondent on September 29, 2010 as an attachment to his answer (hereinafter referred
to as the “Slip Op.”).
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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.
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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.
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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.
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Mike French, a detective who was also working on the Rosa
robbery, identified Hill and Young in the Valero Gas Station
surveillance videotape.
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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
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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).
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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.
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“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.
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“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?
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“MR. HANSEN: I am, Your Honor.
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“THE COURT: Anything else?
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“MR. HANSEN: The fact that he indicated that he was filing a
lawsuit against me caused me some concern.
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“THE COURT: Concern about what?
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“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.
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“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-
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“THE COURT: Would you please answer my question, Mr.
Hansen[?]
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“MR. HANSEN: Other than that, I have not observed anything else
that I would say is a mental disorder.
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“THE COURT: Do you remember what my question was?
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“MR. HANSEN: I believe your question was, have I observed any
other activities or behaviors that indicate there [were] any mental
problems.
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“THE COURT: Before yesterday morning.
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“MR. HANSEN: Correct.
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“THE COURT: I take it your answer is no?
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“MR. HANSEN: The answer is no.
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“THE COURT: Anything you would like to add, Mr. Hansen?
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“MR. HANSEN: No.”
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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.
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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. . . .
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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. . . .
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II. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
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An application for writ of habeas corpus by a person in custody under judgment of a state
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court can only be granted for violations of the Constitution or laws of the United States. See 28
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U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v.
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Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)).
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Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism
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and Effective Death Penalty Act of 1996 (“AEDPA”) applies. See Lindh v. Murphy, 521 U.S.
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320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim
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decided on the merits in the state court proceedings unless the state court’s adjudication of the
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claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of,
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clearly established federal law, as determined by the Supreme Court of the United States; or (2)
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resulted in a decision that was based on an unreasonable determination of the facts in light of the
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evidence presented in state court. See 28 U.S.C. § 2254(d); Perry v. Johnson, 532 U.S. 782, 792-
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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
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that is appropriate for our review.” Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). “The
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relevant state court determination for purposes of AEDPA review is the last reasoned state court
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decision.” Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). “Where
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there has been one reasoned state judgment rejecting a federal claim, later unexplained orders
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upholding that judgment or rejecting same claim rest upon the same ground.” Ylst v.
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Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts
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must conduct an independent review of the record to determine whether the state court clearly
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erred in its application of controlling federal law, and whether the state court’s decision was
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objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). “The question
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under AEDPA is not whether a federal court believes the state court’s determination was
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incorrect but whether that determination was unreasonable—a substantially higher threshold.”
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Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). “When it is
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clear, however, that the state court has not decided an issue, we review that question de novo.”
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Reynoso v.Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S.
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374, 377 (2005)).
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III. ANALYSIS OF PETITIONER’S CLAIMS
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1. Claim I
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In Claim I, Petitioner contends that the trial court violated his constitutional right to due
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process when it failed to hold a hearing to determine whether Petitioner was competent to stand
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trial after Petitioner’s counsel expressed doubt as to his competency and he told the court that he
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was hearing voices. The last reasoned state court decision on this claim, and each of Petitioner’s
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claims, is the decision by the California Court of Appeal on Petitioner’s direct appeal from his
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conviction. Ylst, 501 U.S. at 803. In concluding that Petitioner’s right to not stand trial if
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incompetent was not violated, the Court of Appeal stated as follows:
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Section 1368 Competency Hearing
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Defendant Hill contends the trial court erred by failing to conduct a
section 1368 hearing after he informed his counsel he was hearing
voices.
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Section 1368, subdivision (b) states, in pertinent part: “If counsel
informs the court that he or she believes the defendant is or may be
mentally incompetent, the court shall order that the question of the
defendant’s mental competence is to be determined in a hearing
which is held pursuant to Sections 1368.1 and 1369.”
“Whether to order a present sanity hearing is for the discretion of
the trial judge, and only where a doubt as to sanity may be said to
appear as a matter of law or where there is an abuse of discretion
may the trial judge’s determination be disturbed on appeal. But,
when defendant has come forward with substantial evidence of
present mental incompetence, he is entitled to a section 1368
hearing as a matter of right under Pate v. Robinson [(1966)] 383
U.S. 375 [15 L.Ed.2d 815].” (People v. Pennington (1967) 66
Cal.2d 508, 518 (Pennington).)
“[T]his doubt which triggers the obligation of the trial judge to
order a hearing on present sanity is not a subjective one but rather a
doubt to be determined objectively from the record.” (People v.
Sundberg (1981) 124 Cal.App.3d 944, 955-956.)
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Defendant Hill first raised the issue of competency during the
hearing on his Marsden motion, at which time counsel informed
the court that defendant had, the prior day, indicated that he had
been hearing voices. After inquiring further of defense counsel and
learning counsel had observed no other behavior indicating mental
incompetency, the court satisfied itself as to defendant’s
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competency to stand trial.
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Under the substantial evidence test, more is required to raise a
doubt than mere bizarre actions, bizarre statements, statements of
defense counsel that defendant is incapable of cooperating in his
defense, or psychiatric testimony that defendant is immature,
dangerous, psychopathic, or homicidal or some reference to
defendant’s resulting inability to assist in his own defense. (People
v. Laudermilk (1967) 67 Cal.2d 272, 285; People v. Halvorsen
(2007) 42 Cal.4th 379, 403.)
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Here, the statement made by defendant Hill’s counsel to the court,
while significant, in our view cannot raise the requisite doubt.
Counsel told the court defendant had told him he was hearing
voices. He did not, however, indicate that defendant was not able
to understand the nature and purpose of the proceedings against
him or assist in his defense. (See Pennington, supra, 66 Cal.2d at
p. 518 [present mental incompetence means the defendant is
“incapable, because of mental illness, of understanding the nature
of the proceedings against him or of assisting in his defense”].) The
objective evidence before the court indicated the contrary, as
defendant Hill demonstrated his ability to understand the
proceedings and articulate, in a coherent manner, the basis for his
Marsden motion and his desire that certain witnesses be called to
testify. Absent any other objective indicia of mental incompetency,
or any evidence to suggest that defendant’s alleged hearing of
voices somehow rendered him incapable of understanding the
proceedings or assisting in his defense, defense counsel’s
representation to the court does not rise to the level of substantial
evidence of a doubt as to defendant’s competence. In that case, the
decision whether or not to order a section 1368 competency
hearing was within the court’s discretion. (Pennington, supra, 66
Cal.2d at p. 518.) Given defendant Hill’s ability to participate in
the motion proceedings and the timing of the competency claim on
the eve of trial and during a Marsden hearing, as well as the court’s
finding of “manipulative malingering,” the trial court did not abuse
its discretion.
Slip Op. at 9-12.
The conviction of an accused person while he is legally incompetent violates due process.
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Bishop v. United States, 350 U.S. 961 (1956); see also Drope v. Missouri, 420 U.S. 162, 171
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(1975) (“It has long been accepted that a person whose mental condition is such that he lacks the
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capacity to understand the nature and object of the proceedings against him, to consult with
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counsel, and to assist in preparing a defense may not be subjected to a trial.”). The failure to
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observe procedures adequate to protect a defendant’s right not to be tried or convicted while
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incompetent to stand trial deprives him of his due process right to a fair trial. Pate v. Robinson,
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383 U.S. 375, 285 (1966). “[E]vidence of a defendant’s irrational behavior, his demeanor at trial,
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and any prior medical opinion on competence to stand trial are all relevant in determining
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whether further inquiry is required.” Drope, 420 U.S. at 180. “[E]ven one of these factors
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standing alone may, in some circumstances, be sufficient,” id., though the Supreme Court has not
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“prescribe[d] a general standard with respect to the nature or quantum of evidence necessary to
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require resort to an adequate procedure.” Id. at 172 (footnote omitted). A state court’s
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determination that a defendant is competent to stand trial is a factual determination which must
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be given deference when reviewed in federal court on a petition for habeas corpus. See Maggio v.
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Fulford, 462 U.S. 111 (1983) (per curiam) (relying on former 28 U.S.C. § 2254(d)(8)); id. at 118
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(quoting United States v. Oregon Medical Society, 434 U.S. 326, 339 (1952) (“Face to face with
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living witnesses the original trier of the facts holds a position of advantage from which appellate
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judges are excluded.”)); 28 U.S.C. § 2254(e)(1) (a determination of a factual issue made by a
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State court shall be presumed to be correct); id. § 2254(d)(2).
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In the present case, the California Court of Appeal’s determination of the facts was
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reasonable. The single fact which could possibly lead to a conclusion that Petitioner may have
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been incompetent to stand trial was his statement that he was “hearing voices.” Lodged Doc. No.
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7 (Transcript of Marsden Hearing), at 50. Petitioner’s counsel had not observed any other
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indication of a possible mental disorder at anytime during his preparation for trial. Id. at 64-65.
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Neither Petitioner nor his counsel suggested that the voices in his head were preventing him from
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communicating with his counsel or assisting in his defense. Indeed, Petitioner indicated that he
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had suggested witnesses for his counsel to interview and had urged his counsel to make certain
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motions, attempting to assist in his own defense. Id. at 50, 53, 55. As the Court of Appeal
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recognized, Petitioner also intelligently and articulately argued the basis for his motion to have
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his counsel replaced. Id. at 49-50, 54; Slip Op. at 11.
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Moreover, there is substantial evidence to support the trial court’s conclusion, which was
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accepted by the Court of Appeal, that Petitioner’s actions amounted to “manipulative
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malingering.” Lodged Doc. No 7, at 66; Slip Op. at 12. Petitioner did not say anything about
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hearing voices or lead his counsel to believe that he was incompetent to stand trial until the
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middle of jury selection for his trial. Lodged Doc. No. 7, at 66. Furthermore, Petitioner had stated
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that he wanted his case to be severed from his co-defendant’s, and it appears that, like the
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defendant in Fulford, Petitioner believed delaying his trial, through whatever means available,
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might achieve that goal. Fulford, 462 U.S. at 115 (“Most importantly for our purposes, the trial
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judge concluded that respondent’s surprise, eleventh-hour motion for appointment of a
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competency commission ‘was just a subterfuge on the part of this defendant to attempt to keep
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from going to trial so that he would be tried at a different time from the other defendants.’”). At
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the same time Petitioner began to hear voices in his head, Petitioner also attempted to have his
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counsel removed, stating that he had filed a civil suit against his counsel and arguing that the
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civil suit created a conflict of interest which prevented his current counsel from continuing to
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represent him. Lodged Doc. No. 7, at 50, 54 (Petitioner stated: “I believe it is going to be a
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conflict of interest if I’m suing him, for him to defend me.”). If counsel would have been
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removed, this would have led to a substantial delay in Petitioner’s trial.
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The timing of Petitioner’s alleged incompetence—on the eve of trial—along with his
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other attempts at delay, indicate that Petitioner was making a concerted effort to delay his trial.
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As such, there was ample support for the trial court’s reasonable determination that Petitioner
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was competent to stand trial and that he was alleging his incompetency as a means of delay. That
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finding is entitled to a presumption of correctness in this court which Petitioner has failed to
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rebut. Petitioner is not entitled to relief on this claim.
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2. Claim II
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In Claim II, Petitioner alleges error in the trial court’s instruction with relation to
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reasonable doubt. Petitioner contends that the trial court’s instruction on reasonable doubt,
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CALCRIM 220, is erroneous because it only allows the jury to consider evidence presented in
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the courtroom and because it improperly conveys the principle of reasonable doubt.
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CALCRIM 220, as read to the jury, states as follows:
The fact that a criminal charge has been filed against the
defendants is not evidence that the charge is true. You must not be
biased against a defendants just because he has been arrested,
charged with a crime, or brought to trial.
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A defendant in a criminal case is presumed to be innocent. This
presumption requires that the People prove a defendant guilty
beyond a reasonable doubt. Whenever I tell you the People must
prove something, I mean they must prove it beyond a reasonable
doubt.
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Proof beyond a reasonable doubt is proof that leaves you with an
abiding conviction that the charge is true. The evidence need not
eliminate all possible doubt because everything in life is open to
some possible or imaginary doubt.
In deciding whether the People have proved their case beyond a
reasonable doubt, you must impartially compare and consider all
the evidence that was received throughout the entire trial. Unless
the evidence proves a defendant guilty beyond a reasonable doubt,
he is entitled to an acquittal and you must find him not guilty.
Clerk’s Tr. at 363; Rep’s Tr. at 619-20.
In upholding the trial court’s instruction, the Court of Appeal relied on its previous
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decision in People v. Guerrero, 155 Cal. App. 4th 1264, 66 Cal. Rptr. 3d 701 (2007). In
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Guerrero, the Court of Appeal upheld CALCRIM 220, stating as follows:
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Defendant contends [CALCRIM 220] prevented the jury from
considering a lack of evidence in deciding whether reasonable
doubt existed. In support of his contention, defendant focuses on
the phrase “the evidence that was received throughout the entire
trial.” Defendant argues his due process rights are violated by an
instruction defining reasonable doubt “unless the concept of lack of
evidence is included in the basic definition of reasonable doubt,”
thus rendering the instruction facially invalid. Defendant's
argument is not well taken.
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The “Due Process Clause protects the accused against conviction
except upon proof beyond a reasonable doubt.” (In re Winship
(1970) 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368,
375.) An instruction which misstates the prosecution's burden to
prove every element of the crime beyond a reasonable doubt
violates due process. (Victor v. Nebraska (1994) 511 U.S. 1, 5, 114
S.Ct. 1239, 1243, 127 L.Ed.2d 583, 590 (Victor).)
In Victor, the Supreme Court explained the due process standard
for evaluating instructions defining reasonable doubt. “The beyond
a reasonable doubt standard is a requirement of due process, but
the Constitution neither prohibits trial courts from defining
reasonable doubt nor requires them to do so as a matter of course.
[Citation.] Indeed, so long as the court instructs the jury on the
necessity that the defendant's guilt be proved beyond a reasonable
doubt [citation], the Constitution does not require that any
particular form of words be used in advising the jury of the
government's burden of proof. [Citation.] Rather, ‘taken as a
whole, the instructions [must] correctly convey the concept of
reasonable doubt to the jury.’ ” [Citation.] (Victor, supra, 511 U.S.
at p. 5, 114 S.Ct. at p. 1243, 127 L.Ed.2d at p. 590.)
In Victor, the Supreme Court noted that it had found a reasonable
doubt instruction to violate due process in only one case. (See
Victor, supra, 511 U.S. at p. 5, 114 S.Ct. at p. 1243, 127 L.Ed.2d at
p. 590, citing Cage v. Louisiana (1990) 498 U.S. 39, 111 S.Ct.
328, 112 L.Ed.2d 339 (per curiam).) In Cage, the jury was
instructed that reasonable doubt “must be such doubt as would give
rise to a grave uncertainty . . . it is an actual substantial doubt ” and
its negation involves a “moral certainty.” (Cage, supra, 498 U.S. at
p. 40, 111 S.Ct. at p. 329, 112 L.Ed.2d at pp. 341–342.) Instructing
the jury with these phrases violated due process by suggesting to
the jurors “a higher degree of doubt than is required for acquittal
under the reasonable doubt standard.” (Id. at p. 41, 111 S.Ct. at p.
329, 112 L.Ed.2d at p. 342.)
Unlike the instruction in Cage, CALCRIM No. 220 does not
suggest an impermissible definition of reasonable doubt to the jury.
The instruction defines reasonable doubt as the absence of an
abiding conviction in the truth of the charges. “An instruction cast
in terms of an abiding conviction as to guilt, . . . correctly states the
government's burden of proof.” (Victor, supra, 511 U.S. at pp.
14–15, 114 S.Ct. at p. 1247, 127 L.Ed.2d at p. 596.) The
instruction neither lowers the prosecution's standard of proof nor
raises the amount of doubt the jury must have in order to acquit a
defendant.
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Contrary to defendant's suggestion, CALCRIM No. 220 instructs
the jury to acquit in the absence of evidence. In addressing
defendant's claim, we consider whether a “reasonable juror would
apply the instruction in the manner suggested by defendant.”
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1
2
3
4
5
(People v. Wade (1995) 39 Cal.App.4th 1487, 1493, 46
Cal.Rptr.2d 645.) The jury is instructed to consider only the
evidence, and to acquit unless the evidence proves defendant's guilt
beyond a reasonable doubt. If the government presents no
evidence, then proof beyond a reasonable doubt is lacking, and a
reasonable juror applying this instruction would acquit the
defendant.
Due process requires nothing more. CALCRIM No. 220 does not
violate due process.
6
7
8
9
Id. at 1267-69 (footnote omitted).
A challenge to a jury instruction as erroneous under state law is not a basis for federal
habeas relief. Estelle v. McGuire, 502 U.S. 62, 71–72 (1991). “The only question . . . is ‘whether
10
[a jury] instruction by itself so infected the entire trial that the resulting conviction violates due
11
process.’” Id. at 72 (citation omitted); see Waddington v. Sarausad, 555 U.S. 179 (2009). In
12
making that determination, “[t]he jury instruction may not be judged in artificial isolation, but
13
must be considered in the context of the instructions as a whole and the trial record.” Id. (citation
14
and quotation marks omitted). “[I]t must be established not merely that the instruction is
15
undesirable, erroneous, or even ‘universally condemned,’ but that it violated some [constitutional
16
right].” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). The Supreme Court has “‘defined
17
the category of infractions that violate “fundamental fairness” very narrowly.’” Estelle, 502 U.S.
18
at 72–73 (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)). Petitioner’s “burden is
19
especially heavy” because “[a]n omission, or an incomplete instruction, is less likely to be
20
prejudicial than a misstatement of the law.” Henderson v. Kibbe, 431 U.S. 145, 155 (1977).
21
The federal constitution does not require that state courts define reasonable doubt in a
22
particular way. See Victor v. Nebraska, 511 U.S. 1, 6 (1994). Instead the instruction must
23
correctly communicate the concept of reasonable doubt to the jury. See Holland v. United States,
24
348 U.S. 121, 140 (1954). “The proper inquiry is not whether the instruction could have been
25
applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury
26
did so apply it. The constitutional question . . . is whether there is a reasonable likelihood that the
13
1
jury understood the instructions to allow conviction based on proof insufficient to meet the
2
Winship standard.” Victor, 511 U.S. at 6 (emphasis in original, citation and quotation marks
3
omitted). In Victor, the Supreme Court found “[a]n instruction cast in terms of an abiding
4
conviction as to guilt, without reference to moral certainty, correctly states the government’s
5
burden of proof.” Id. at 14-15. Given that CALCRIM 220 defines reasonable doubt in terms of an
6
abiding conviction, it was not unreasonable for the Court of Appeal to conclude that CALCRIM
7
220 does not offend clearly established Supreme Court precedent.
8
3. Claim III
9
In Claim III, Petitioner contends, pursuant to Cunningham v. California, 549 U.S. 270
10
(2007), that his right to a jury trial was violated when the trial court sentenced him to the upper
11
term of five years on one of the robbery counts for which he was convicted based on aggravating
12
factors which were not tried before the jury. In denying Petitioner’s claim, the California Court of
13
Appeal determined as follows:
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17
Defendants contend the trial court’s imposition of an upper term
sentence as to count one denied them their constitutional right to
due process and to have a jury determine factors in aggravation
beyond a reasonable doubt as set forth in Cunningham v.
California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham),
Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]
(Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 [147
L.Ed.2d 435] (Apprendi). We disagree.
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21
22
23
In People v. Black (2007) 41 Cal.4th 799 (Black II),FN6 the
California Supreme Court applied the Apprendi line of cases, as
interpreted in Cunningham, to California’s Determinate Sentencing
Law. It concluded “so long as a defendant is eligible for the upper
term by virtue of facts that have been established consistently with
Sixth Amendment principles, the federal Constitution permits the
trial court to rely upon any number of aggravating circumstances in
exercising its discretion to select the appropriate term by balancing
aggravating and mitigating circumstances, regardless of whether
the facts underlying those circumstances have been found to be
true by a jury.” (Black II, supra, 41 Cal.4th at p. 813.)
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26
FN6. Defendant Young acknowledges that we are
bound by our Supreme Court’s decision in Black II,
as well as its companion case, People v. Sandoval
(2007) 41 Cal.4th 825 (Sandoval), but nonetheless
14
1
asserts his claim of sentencing error for the purpose
of “exhausting his state remedies and preserving the
issues for federal review.”
2
3
The presence of a single aggravating circumstance found in
accordance with the Apprendi rule renders a defendant eligible for
the upper term. (Black II, supra, 41 Cal.4th at p. 815.) Therefore,
“imposition of the upper term does not infringe upon the
defendant’s constitutional right to jury trial so long as one legally
sufficient aggravating circumstance has been found to exist by the
jury, has been admitted by the defendant, or is justified based upon
the defendant’s record of prior convictions.” (Id. at p. 816.) “[A]ny
additional factfinding engaged in by the trial court in selecting the
appropriate sentence among the three available options does not
violate the defendant’s right to jury trial.” (Id. at p. 812.)
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5
6
7
8
9
The Supreme Court further held that the prior conviction exception
rendering the defendant eligible for an upper term sentence is not
to be read “too narrowly.” (Black II, supra, 41 Cal.4th at p. 819.)
Numerous cases have interpreted this exception “to include not
only the fact that a prior conviction occurred, but also other related
issues that may be determined by examining the records of the
prior convictions,” such as whether defendant’s prior convictions
were “‘numerous or of increasing seriousness’” (Cal. Rules of
Court, rule 4.421(b)(2)).” (Black II, supra, 41 Cal.4th at pp. 819,
820.)
10
11
12
13
14
Here, in sentencing Hill to the upper term, the trial court relied on
two facts: (1) the fact that “defendant’s prior convictions as an
adult or sustained petitions in juvenile delinquency proceedings are
numerous and of increasing seriousness,” and (2) the fact that
“defendant was on parole when the crimes were committed.”
Based on those facts together, or either fact alone, defendant Hill
was eligible to receive the upper term. (Black II, supra, 41 Cal.4th
at p. 816.) Any additional factfinding by the court does not render
defendant’s sentence unlawful. (Id. at p. 812.)
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16
17
18
19
...
20
Defendants urge that Apprendi, Blakely, and Cunningham were
wrongly interpreted by the California Supreme Court, and that
Black II and Sandoval were wrongly decided. As defendants
correctly concede, however, we are bound by our Supreme Court’s
decisions in those cases. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.) There is no sentencing error here.
21
22
23
24
Slip Op. at 12-15.
25
///
26
///
15
1
The Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows
2
a judge to impose a sentence above the statutory maximum based on a fact, other than a prior
3
conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey, 530 U.S.
4
466 (2000); Ring v. Arizona, 536 U.S. 584 (2002); Blakely v. Washington, 542 U.S. 296 (2004);
5
United States v. Booker, 543 U.S. 220 (2005). In Cunningham v. California, supra, the Supreme
6
Court had the opportunity to apply its previous rulings to California’s determinate sentencing
7
law. Under California’s determinate sentencing law, the statute defining most offenses, including
8
Petitioner’s, “prescribes three precise terms of imprisonment—a lower, middle, and upper term
9
sentence.” Cunningham, 549 U.S. at 277; see People v. Black, 35 Cal. 4th 1238, 1247, 29 Cal.
10
Rptr. 3d 740, 113 P.3d 534 (2005) (“Black I”), overruled by Cunningham (outlining California’s
11
determinate sentencing law). California Penal Code section 1170, subsection (b) governs the trial
12
court’s choice; it provides that “the court shall order imposition of the middle term, unless there
13
are circumstances in aggravation or mitigation of the crime.” Therefore, the maximum sentence
14
which a defendant may receive based solely on the facts reflected in the jury verdict is the middle
15
term—the statutory maximum for purposes of the Sixth Amendment. Cunningham, 549 U.S. at
16
289; Blakely, 542 U.S. at 303 (“[T]he ‘statutory maximum’ for Apprendi purposes is the
17
maximum sentence a judge may impose solely on the basis of the facts reflected in the jury
18
verdict or admitted by the defendant.” (emphasis in original)).2
19
In California, in order for a trial court to sentence a defendant to the upper term, the court
20
need only find one aggravating factor. See People v. Black, 41 Cal. 4th 799, 805, 62 Cal. Rptr. 3d
21
569, 161 P.3d 1130 (2007) (“Black II”); Butler v. Curry, 528 F.3d 624, 642 (9th Cir. 2008)
22
(accepting the California Supreme Court’s decision in Black II as a valid interpretation of
23
2
24
25
26
Respondent maintains that in this case the upper term was the statutory maximum
for purposes of the Sixth Amendment. It is difficult to reconcile this contention with the Supreme
Court’s clear interpretation of California law in Cunningham. 549 U.S. at 288 (“[T]he middle
term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.”
(citations omitted)). However, because at least one aggravating factor was available to the trial
court in sentencing Petitioner, it is unnecessary to address this argument.
16
1
California law). Thus, “if at least one of the aggravating factors on which the judge relied upon in
2
sentencing a defendant was established in a manner consistent with the Sixth Amendment, the
3
defendant’s sentence does not violate the Constitution.” Butler, 528 F.3d at 643. Once imposition
4
of the upper term is available because of either a prior conviction or an aggravating factor proved
5
beyond a reasonable doubt to a jury, any additional aggravating factors determined by the judge
6
are within his discretion in determining which sentence to impose. Id.
7
In count one, Petitioner was found guilty of second degree robbery. Cal. Penal Code §
8
211; Id. § 212.5. California law provides that “[r]obbery of the second degree is punishable by
9
imprisonment in the state prison for two, three, or five years.” Id. § 213(a)(2). Pursuant to
10
California law, id. § 1170(c), the trial judge in Petitioner’s case stated his reasons for imposing
11
the upper term:
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The following factors are covered by Cunningham. The ones I’m
precluded from using. (a)(2), the defendant used a weapon; (a)(8)
the manner in which the crimes were carried out; (b)(1) the
defendant engaged in violent conduct in getting a serious danger
[sic]; (b)(5) the defendant’s prior performance on juvenile
probation and parole were unsatisfactory. The ones that I think
factors in aggravation that I think are applicable and [that] I am
relying on and do find to be present in thise case and do find to
justify the higher term are the following: Of course, these are
subdivisions of Rule 4.21(b)(2). The defendant’s prior convictions
as an adult or sustained petitions in juvenile delinquency
proceedings are numerous and of increasing seriousness, (b)(3)
that would be applicable. The defendant has served a prior prison
term, but I’m not going to consider it because of Section 1170(b)
of the Penal Code. It’s charged as an enhancing prior conviction.
(b)(4) the defendant was on parole when the crimes were
committed.
As far as I’m concerned there are no circumstances in mitigation
except for the defendant’s young age, which is 21, but he’s
committed an awful lot of crime in those 21 years. I don’t see that
much as a fact in mitigation. I think the factors in aggravation
substantially and decisively outweigh those in mitigation.
Let me explain further my rationale for relying on the factors that I
have enumerated as being usable aggravating factors. The fact that
the defendant was on parole or probation at the time of the crime,
as far as I’m concerned, this is within the exception of prior
convictions, which all of these cases from Apprendi through
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1
2
3
4
5
6
7
Cunningham recognize. Furthermore, under section 452(d) of the
Evidence Code, I am entitled to take judicial notice and I do take
judicial notice of the fact, the relevant fact here, and it seems pretty
obvious to me there would be no point to having a jury determine
that fact when Section 457 of the Evidence Code provides that
once the court has taken judicial notice of the fact, that would
otherwise be for the jury to determine, the court may and on
request shall instruct the jury to accept the fact as true. Given that,
there would be no point to a jury trial on that factor.
Also consecutive sentences withheld whereas here the Court is
imposing – Court could impose consecutive sentences, but is not
doing so. This is a factor that can be used in aggravation. It’s not
amendable to jury determination.
8
9
I said that I was taking judicial notice. What I mean is I’m taking
judicial notice of what’s in the probation report, which establishes
the facts in aggravation I am relying on.
10
11
12
13
Mr. Hill is ineligible for probation. Probation is denied. Judgment
and sentence with respect to Count One for violation of Section
211 of the Penal Code is that you be confined in the state prison for
the higher term which is five years, and I’m choosing the higher
term for the reasons I enumerated. I order you to serve an
additional ten years pursuant to Section 12022.53(b) for having
used a firearm in the commission of the crime.
14
15
16
Rep.’s Tr. at 653-55 (emphasis added).
The presentence probation report which the trial court referred to, took judicial notice of,
17
and relied upon when imposing Petitioner’s sentence lists a litany of prior offenses. See Clerk’s
18
Tr. at 36-43. Not including Petitioner’s crimes committed as a juvenile, Petitioner had been
19
convicted for crimes committed on six separate occasions. For instance, in 2004 Petitioner was
20
arrested after he fled from police in a stolen vehicle while carrying cocaine. Id. at 42-43. That
21
was his second attempt to evade police in a vehicle that year, and led to his third conviction of
22
2004. For that offense, Petitioner was sentenced to sixteen months in state prison. Id. at 43. As
23
such, the Court of Appeal was reasonable in determining that Petitioner’s prior convictions,
24
which need not be proved to a jury, supported imposition of the upper term. Apprendi, 530 U.S.
25
at 489; Cunningham, 549 U.S. at 282. Once Petitioner was eligible for the upper term due to his
26
previous convictions, the trial court was free to consider other factors not proved to the jury in
18
1
determining which sentence within the available range was appropriate. Butler, 528 F.3d at 643.
2
Petitioner is not entitled to relief on this claim.
3
IV. REQUEST FOR AN EVIDENTIARY HEARING
4
Finally, Petitioner requests an evidentiary hearing on his claims. (See Pet’r’s Traverse at
5
p. 4.) A court presented with a request for an evidentiary hearing must first determine whether a
6
factual basis exists in the record to support petitioner’s claims, and if not, whether an evidentiary
7
hearing “might be appropriate.” Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999); see
8
also Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005). A petitioner requesting an
9
evidentiary hearing must also demonstrate that he has presented a “colorable claim for relief.”
10
Earp, 431 F.3d at 1167 (citations omitted). To show that a claim is “colorable,” a petitioner is
11
“required to allege specific facts which, if true, would entitle him to relief.” Ortiz v. Stewart, 149
12
F.3d 923, 934 (9th Cir. 1998) (internal quotation marks and citation omitted). In this case,
13
Petitioner’s claims are readily determined by the record. Petitioner has not alleged any additional
14
facts that, if true, would entitle him to relief and, therefore, Petitioner fails to demonstrate that he
15
has a colorable claim for federal habeas relief. Moreover, the Supreme Court has recently held
16
that federal habeas review under 28 U.S.C. § 2254(d)(1) “is limited to the record that was before
17
the state court that adjudicated the claim on the merits” and “that evidence introduced in federal
18
court has no bearing on” such review. Cullen v. Pinholster, __ U.S. __, 131 S.Ct. 1388, 1398,
19
1400 (2011). Thus, his request will be denied.
20
V. CONCLUSION
21
Accordingly, IT IS HEREBY ORDERED that Petitioner’s request for an evidentiary
22 hearing is DENIED.
23
For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the petition for
24 writ of habeas corpus be DENIED.
25
These findings and recommendations are submitted to the United States District Judge
26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days
19
1 after being served with these findings and recommendations, any party may file written objections
2 with the court and serve a copy on all parties. Such a document should be captioned “Objections
3 to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be
4 served and filed within seven days after service of the objections. The parties are advised that
5 failure to file objections within the specified time may waive the right to appeal the District
6 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In any objections he elects to file,
7 Petitioner may address whether a certificate of appealability should issue in the event he elects to
8 file an appeal from the judgment in this case. See Rule 11, Federal Rules Governing Section 2254
9 Cases (the district court must issue or deny a certificate of appealability when it enters a final
10 order adverse to the applicant).
11 DATED: October 20, 2011
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TIMOTHY J BOMMER
UNITED STATES MAGISTRATE JUDGE
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