Butler v. Johnson
Filing
21
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/20/2016 RECOMMENDING that petitioner's application for a writ of habeas corpus be denied. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
AMY MARIE BUTLER,
12
13
14
15
No. 2:14-cv-0683-MCE-EFB P
Petitioner,
vs.
D. K. JOHNSON, Warden
FINDINGS AND RECOMMENDATIONS
Respondent.
16
17
Petitioner is a state prisoner proceeding without counsel with a petition for a writ of
18
habeas corpus pursuant to 28 U.S.C. § 2254. She challenges a judgment of conviction entered
19
against her on May 2, 2011, in the Yuba County Superior Court on charges of robbery of an
20
inhabited dwelling in concert with two or more persons, conspiracy to commit robbery, and
21
principal armed with a firearm. She seeks federal habeas relief on the following grounds: (1) the
22
trial court’s abuse of discretion in sentencing her to the upper term violated her rights under the
23
Eighth and Fourteenth Amendments and the decisions of the United States Supreme Court in
24
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) and Cunningham v. California, 549 U.S. 270
25
(2007); (2) the trial court’s abuse of discretion in imposing consecutive terms violated state law
26
and her federal constitutional rights; and (3) her trial counsel rendered ineffective assistance.
27
Upon careful consideration of the record and the applicable law, the undersigned recommends
28
that petitioner’s application for habeas corpus relief be denied.
1
1
2
I. Background
In its unpublished memorandum and opinion affirming petitioner’s judgment of
3
conviction on appeal, the California Court of Appeal for the Third Appellate District provided the
4
following factual summary:
5
Two people lost their lives as a result of a plan to steal marijuana
originally hatched by defendant Amy Marie Butler. Defendant was
given a break for her cooperation and then violated her probation by
possessing a loaded firearm. Defendant now appeals the state
prison sentence imposed by the trial court after revocation of her
probation. The court imposed a term of 12 years for robbery of an
inhabited dwelling in concert with two or more persons (Pen.Code,
§§ 211, 213, subd. (a)(1)(A);1 hereafter robbery), principal armed
with a firearm (§ 12022, subd. (a)(1)), and conspiracy to commit
robbery (§ 182; hereafter conspiracy).
6
7
8
9
10
Defendant contends the trial court abused its discretion in imposing
the upper term of nine years for the robbery, asserting that the court
relied upon only one aggravating factor – that she took advantage of
a position of trust – and that factor does not outweigh factors in
mitigation. She also contends the court abused its discretion in
imposing a consecutive term of two years for conspiracy because it
failed to cite any factor supporting imposition of a consecutive
sentence, and that if we find the trial court did state a reason, which
could only be that she took advantage of a position of trust, this was
an impermissible dual use of facts. Finally, she contends if we find
her trial counsel's failure to object to the trial court's imposition of a
consecutive term for conspiracy was error, she received ineffective
assistance of counsel.
11
12
13
14
15
16
17
We reject defendant's contentions and affirm the judgment.
18
FACTUAL AND PROCEDURAL BACKGROUND
19
Procedural History
20
On June 2, 2006, defendant pleaded no contest to robbery and
conspiracy, admitted a principal armed with firearm allegation, and
agreed to testify against her coconspirators. In exchange for
defendant's pleas, admission and truthful testimony, the parties
agreed that the two counts of murder would be dismissed, defendant
would initially receive probation and she would be exposed to a
maximum sentence of no more than 12 years.
21
22
23
24
On May 20, 2009, following defendant's testimony against two of
her coconspirators, the court suspended imposition of sentence and
granted her probation for five years. Among the probation
conditions were requirements that she obey all laws and not possess
25
26
27
28
1
Undesignated statutory references are to the Penal Code.
2
1
any firearms or ammunition. The court dismissed the two counts of
murder.
2
On January 20, 2011, defendant was charged with violating her
probation by failing to obey all laws and possessing a firearm and
ammunition. On February 22, 2011, defendant admitted violating
the condition that she obey all laws and the prosecution moved to
strike the duplicative possession allegations.
3
4
5
7
On May 2, 2011, the court sentenced defendant to 12 years in
prison, consisting of the upper term of nine years for the robbery,
one year for the firearm enhancement, and a consecutive term of
two years for the conspiracy.2
8
Facts Underlying the Charged Offenses
9
In early September 2005, defendant was with Angelic Rampone,
Michael Huggins, Matthew Griffin, Dustin Sparks, and Levill Hill.
At some point during their conversation, Huggins said he wanted to
buy some marijuana and resell it to make money. Defendant told
the group that two of her friends from high school, Christopher
Hance and Scott Davis, were growing a large quantity of marijuana
for medicinal purposes at Hance's residence in Olivehurst. Aside
from defendant, only her boyfriend, Matthew Griffin, knew Hance
and Davis. Defendant told Huggins he could buy the marijuana
from Hance and Davis, but at some point suggested that she could
get Hance and Davis out of the house so the group could steal the
marijuana. Defendant was to share in an even split of the money
made from selling the marijuana.
6
10
11
12
13
14
15
16
On September 13, 2005, defendant led some of the others to
Hance's residence to steal the marijuana. The plan was for
defendant to get Hance and Davis out of the residence on the ruse
that they were arranging for the purchase of $700 worth of
marijuana. However, the plan fell through when defendant was
only able to get Davis to leave.
17
18
19
About a week later, the plan to steal marijuana was again discussed.
This time the plan was to tie up Hance and Davis and then steal the
marijuana. Defendant said she did not want to have anything to do
with the plan anymore and would not participate. However,
defendant told the others that Hance and Davis were “good
fighters” and that they had firearms in the trailer on the property
where Davis stayed.
20
21
22
23
Early in the morning of September 27, 2005, Rampone, Huggins,
Griffin, Sparks, and Hill drove to Hance's residence. Huggins was
armed with a .45–caliber handgun, supposedly to be used to subdue
and tie up Hance and Davis. After walking around the property,
Hill and Griffen changed their minds and returned to their vehicle.
Huggins entered the front yard and headed toward the trailer in the
24
25
26
27
28
2
As part of defendant's plea bargain she agreed to waive the section 654 prohibition
against multiple punishment.
3
1
2
3
4
5
6
7
8
9
backyard while Sparks stayed at the front yard gate. Huggins called
out, “Yuba County Sheriffs” and “I want Scott Davis” and walked
toward the trailer.
Initially thinking law enforcement was there, Hance's father,
Michael, retrieved his medical marijuana recommendation. In the
meantime, Huggins shot the family dog and went to the trailer,
where he struggled with Davis, who was unarmed. Huggins shot
Davis during the struggle. Davis collapsed and died on the scene.
As Huggins and Hance fought, Michael came out of the house and
retrieved a gun from the trailer. Huggins shot Hance in the pelvis
and Hance fell to the ground. Michael pointed the shotgun at
Huggins but lowered it when Huggins again yelled, “Yuba County
Sheriff's Department.” Hance shouted, “Dad, he's not a cop, he's
not a cop.” Michael asked for identification. Huggins ran from the
scene, joined the rest of his group and they drove off. Hance was
transported to a hospital where he died from his gunshot wound.
10
The Initial Sentencing
11
On May 20, 2009, finding that defendant had fulfilled her end of
the bargain up to that point, the court imposed the agreed-upon
sentence and placed defendant on five years' formal probation. The
court made clear to defendant that possession of firearms or
ammunition would be a violation of her probation and the basis for
a new charge. Defendant signed the probation order containing the
conditions that she obey all laws and not possess firearms or
ammunition.
12
13
14
15
Facts Underlying the Probation Violation
16
17
18
19
While preparing for the trial of one of the coconspirators, an
investigator for the district attorney's office found a photograph on
defendant's Facebook site showing a male holding her arms as she
held a handgun. A sheriff's detective was told by two people who
were present when the photograph was taken that the male was
defendant's boyfriend and he was showing defendant how to aim
and shoot at a target while they were camping.
20
The Probation Violation Sentencing
21
22
23
The court announced its intent to sentence defendant to the upper
term of nine years for the robbery, one year for the firearm
enhancement and a consecutive term of two years for the
conspiracy. The court then gave the following reasons for its
intended sentence:
24
25
26
27
28
“In arriving at this intended sentence, the Court has considered that
Defendant took advantage of a position of trust. She was friends
with the victims and introduced and set up the initial meeting to
purchase marijuana. As a result of her involvement and the
information she subsequently provided, the victims were shot to
death with a .45–caliber handgun. The Court has considered that
Defendant has no known prior criminal record; however, in
considering the totality of the circumstances, I do believe that the
4
upper term is warranted.”3 (Italics added.) Later, in responding to
defense counsel's request to impose no more than the low term, the
court further observed that not only had defendant taken advantage
of a position of trust, but she also had admitted to a detective that
she was also involved in the second plan (to tie up the victims).
And the court reiterated that there had been the loss of two lives.
1
2
3
4
5
People v. Butler, No. C068341, 2013 WL 1283866, at *1-3 (Cal. Ct. App. Mar. 29, 2013), review
6
denied (June 12, 2013).
7
After her judgment of conviction was affirmed by the California Court of Appeal,
8
petitioner filed a petition for review in the California Supreme Court. Therein, she requested
9
review of all of the claims she had raised on direct appeal. Resp’t’s Lodg. Doc. entitled
10
“California Supreme Court, Petition for Review, May 1, 2013.” The petition for review was
11
summarily denied. Resp’t’s Lodg. Doc. entitled “California Supreme Court Order Denying
12
Petition for Review, June 12, 2013.”
13
II. Standards of Review Applicable to Habeas Corpus Claims
14
An application for a writ of habeas corpus by a person in custody under a judgment of a
15
state court can be granted only for violations of the Constitution or laws of the United States. 28
16
U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or
17
application of state law. See Wilson v. Corcoran, 562 U.S. 1,5 (2010); Estelle v. McGuire, 502
18
U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
19
20
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:
21
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 granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim -
22
23
24
25
26
27
28
3
Prior to stating the reasons for its intended state prison sentence, the court cited several
reasons for denying another grant of probation. (Cal. Rules of Court, rule 4.414(a)(1), (a)(3),
(a)(4), (a)(8); undesignated rule references are to the California Rules of Court.) While the trial
court could have used any of these reasons to impose the upper term (People v. Scott (1994) 9
Cal.4th 331, 350, fn. 12; People v. Bowen (1992) 11 Cal.App.4th 102, 106), it did not expressly
state that it was doing so.
5
1
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
2
3
4
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
5
For purposes of applying § 2254(d)(1), “clearly established federal law” consists of
6
holdings of the United States Supreme Court at the time of the last reasoned state court decision.
7
Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, ___ U.S.
8
___, 132 S.Ct. 38 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v.
9
Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent “may be persuasive in determining
10
what law is clearly established and whether a state court applied that law unreasonably.” Stanley,
11
633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit
12
precedent may not be “used to refine or sharpen a general principle of Supreme Court
13
jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall
14
v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S. Ct. 2148, 2155
15
(2012) (per curiam)). Nor may it be used to “determine whether a particular rule of law is so
16
widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court,
17
be accepted as correct. Id. Further, where courts of appeals have diverged in their treatment of
18
an issue, it cannot be said that there is “clearly established Federal law” governing that issue.
19
Carey v. Musladin, 549 U.S. 70, 77 (2006).
20
A state court decision is “contrary to” clearly established federal law if it applies a rule
21
contradicting a holding of the Supreme Court or reaches a result different from Supreme Court
22
precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003).
23
Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the
24
writ if the state court identifies the correct governing legal principle from the Supreme Court’s
25
decisions, but unreasonably applies that principle to the facts of the prisoner’s case. 4 Lockyer v.
26
27
28
4
Under § 2254(d)(2), a state court decision based on a factual determination is not to be
overturned on factual grounds unless it is “objectively unreasonable in light of the evidence
presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford,
384 F.3d 628, 638 (9th Cir. 2004)).
6
1
Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002
2
(9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ simply because that
3
court concludes in its independent judgment that the relevant state-court decision applied clearly
4
established federal law erroneously or incorrectly. Rather, that application must also be
5
unreasonable.” Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473
6
(2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its independent
7
review of the legal question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”).
8
“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as
9
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v.
10
Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
11
Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner
12
must show that the state court’s ruling on the claim being presented in federal court was so
13
lacking in justification that there was an error well understood and comprehended in existing law
14
beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.
15
If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing
16
court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford,
17
527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)
18
(en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of §
19
2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering
20
de novo the constitutional issues raised.”).
21
The court looks to the last reasoned state court decision as the basis for the state court
22
judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If
23
the last reasoned state court decision adopts or substantially incorporates the reasoning from a
24
previous state court decision, this court may consider both decisions to ascertain the reasoning of
25
the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When
26
a federal claim has been presented to a state court and the state court has denied relief, it may be
27
presumed that the state court adjudicated the claim on the merits in the absence of any indication
28
or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption
7
1
may be overcome by a showing “there is reason to think some other explanation for the state
2
court’s decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
3
Similarly, when a state court decision on a petitioner’s claims rejects some claims but does not
4
expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that
5
the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___, ___, 133
6
S.Ct. 1088, 1091 (2013).
7
Where the state court reaches a decision on the merits but provides no reasoning to
8
support its conclusion, a federal habeas court independently reviews the record to determine
9
whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.
10
Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo
11
review of the constitutional issue, but rather, the only method by which we can determine whether
12
a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no
13
reasoned decision is available, the habeas petitioner still has the burden of “showing there was no
14
reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98.
15
A summary denial is presumed to be a denial on the merits of the petitioner’s claims.
16
Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze
17
just what the state court did when it issued a summary denial, the federal court must review the
18
state court record to determine whether there was any “reasonable basis for the state court to deny
19
relief.” Richter, 562 U.S. at 98. This court “must determine what arguments or theories ... could
20
have supported, the state court's decision; and then it must ask whether it is possible fairminded
21
jurists could disagree that those arguments or theories are inconsistent with the holding in a prior
22
decision of [the Supreme] Court.” Id. at 102. The petitioner bears “the burden to demonstrate
23
that ‘there was no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709 F.3d
24
925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98).
25
When it is clear, however, that a state court has not reached the merits of a petitioner’s
26
claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal
27
habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462
28
F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
8
1
2
III. Petitioner’s Claims
A. Sentencing Claims
3
4
1. Upper Term Sentence
In her first ground for relief, petitioner claims that the trial court’s abuse of discretion in
5
sentencing her to the upper term for the robbery violated her rights under the Eighth and
6
Fourteenth Amendments. ECF No. 1 at 4.5 She also argues that the trial judge’s use of “the
7
crime itself as an aggravating factor” violated the decisions of the United States Supreme Court in
8
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) and Cunningham v. California, 549 U.S. 270
9
(2007). Id. In support of these claims, and all of her federal habeas claims, petitioner has
10
attached her opening brief on appeal filed in state court. Id. at 20-26.
11
a. State Court Decision
12
On appeal, petitioner argued that the trial court abused its discretion in imposing the upper
13
term of nine years for the robbery. The California Court of Appeal denied the claim on state law
14
grounds, reasoning as follows:
15
Defendant contends the court abused its discretion in imposing the
upper term of nine years. She asserts that the trial court relied on a
single factor – that defendant took advantage of a position of trust
in that she was friends with the victims – and that this factor was
outweighed by other circumstances. She asserts the court abused its
discretion in imposing the upper term. We find no abuse of
discretion.
16
17
18
19
A trial court's sentencing decision is reviewed for abuse of
discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) “In
reviewing for abuse of discretion, we are guided by two
fundamental precepts. First, ‘“[t]he burden is on the party attacking
the sentence to clearly show that the sentencing decision was
irrational or arbitrary. [Citation.] In the absence of such a showing,
the trial court is presumed to have acted to achieve legitimate
sentencing objectives, and its discretionary determination to impose
a particular sentence will not be set aside on review.”’ [Citation.]
Second, a ‘“decision will not be reversed merely because
reasonable people might disagree. ‘An appellate tribunal is neither
authorized nor warranted in substituting its judgment for the
judgment of the trial judge.’”' [Citation.] Taken together, these
precepts establish that a trial court does not abuse its discretion
unless its decision is so irrational or arbitrary that no reasonable
20
21
22
23
24
25
26
27
28
5
Page number citations such as this one are to the page numbers reflected on the court’s
CM/ECF system and not to page numbers assigned by the parties.
9
1
2
person could agree with it.” (People v. Carmony (2004) 33 Cal.4th
367, 376–377.) A single aggravating factor is sufficient to make a
defendant eligible for an upper-term sentence. (People v. Black
(2007) 41 Cal.4th 799, 813.)
3
4
5
6
7
Defendant asserts that the trial court cited only one factor in
aggravation in giving its reasons for imposing the upper term—that
defendant took advantage of a position of trust. (Rule 4.421(a)(11).)
Defendant does not assert that this factor has no application here,
but she places little value on it, stating, “[t]here is nothing to
suggest the relationships were more than casual friends,” they were
not romantically involved and there was no fiduciary relationship.
From this, defendant argues, “the violation of trust was not as great
as it could have been.”
8
9
10
11
12
13
14
15
16
17
18
19
20
21
The aggravating factor that a defendant violated a position of trust
focuses on a defendant's special status vis-á-vis the victim and the
exploitation of trust or confidence. (People v. Dancer (1996) 45
Cal.App.4th 1677, 1694–1695, disapproved on other grounds in
People v. Hammon (1997) 15 Cal.4th 1117, 1123.) As we have
noted, the trial court observed that defendant “took advantage of a
position of trust. She was friends with the victims and introduced
and set up the initial meeting to purchase marijuana. As a result of
her involvement and the information she subsequently provided, the
victims were shot to death . . . .” As can be seen by the italicized
portion of the trial court's statement of reasons, the trial court
recognized it was defendant's friendship with the victims, and the
information she provided about them, that led to their deaths. The
information “subsequently provided” (after the initial meeting) was
that the victims were “good fighters,” that they had firearms, and
that the firearms would be in the trailer.
In addition to finding defendant had taken advantage of a position
of trust by providing information she obtained as a result of her
relationship with the victims, the court also cited other factors in
aggravation in the italicized portion of its reasons. The court cited
the loss of life (an aggravating factor within rule 4.421(a)(1)), and
that there were two lives lost (an aggravating factor within rule
4.408(a), other criteria reasonably related to the sentencing
decision). The court also cited defendant's involvement in the
second plan. (Rule 4.421(a)(8).) Defendant's assertion that the
court cited only one aggravating factor is belied by the record.
22
23
24
25
26
27
28
In her reply brief, defendant asserts that the trial court's reference to
the loss of two lives “applies to the court's reasoning for not
selecting the low term. It has no bearing on why it chose the upper
term.” Defendant lifts the court's comments out of context and
ignores the court's reasons, which we italicized, ante, for imposing
its intended sentence.
Reading the court's comments in context, we note defense counsel
suggested that defendant's possession of the firearm, the basis for
the probation violation, was not as serious as finding a gun under
the seat of a car or in a house. He argued, “. . . I don't think it rises
to the level of sentencing this young lady to prison. I think she
10
1
should be reinstated. And, albeit, I don't believe that she should
receive the upper term for this violation. I think the Court should
consider [the] lower term.” To this the court responded that the
probation violation was not a “technical violation.” The court
stated, “There is no reason that you would try to learn how to shoot
a gun if you didn't intend to shoot a gun. And when you think of the
ultimate outcome, the loss of two lives, the lower term does not
seem warranted.” (Italics added.)
2
3
4
5
Thus, it is clear the court's comments were in response to defense
counsel's alternative request of a low-term sentence. Having
previously stated that its intended sentence, including selecting the
upper term for robbery as the base term, was based in part on the
fact that “[a]s a result of her involvement and the information she
subsequently provided, the victims were shot to death,” it is equally
clear that the court factored the loss of two lives into its upper-term
sentencing choice.
6
7
8
9
10
As to defendant's purported offsetting mitigating circumstances, in
addition to her view that the probation violation was not serious,
she cites the following: She had no prior criminal record; both the
prosecutor and the court commented favorably at the initial
sentencing hearing regarding her thorough cooperation with law
enforcement; since nothing was taken, it appears the offense was
attempted robbery rather than robbery; and she had been crime free
for more than four years when the violation was discovered. Aside
from defendant's having no prior convictions, for reasons we shall
discuss, the other factors she cites either do not weigh into the
calculus for determining the base term sentence or are entitled to
little weight.
11
12
13
14
15
16
While events and conduct occurring during probation may be
considered in determining whether to reinstate a defendant on
probation and whether to run state prison sentences consecutively
or concurrently, such events or conduct may not be considered in
determining the base term. (Rule 4.435;6 People v. Leroy (1984)
155 Cal.App.3d 602, 605–606 [court may determine postprobation
conduct in determining whether to impose consecutive or
concurrent sentences]; People v. White (1982) 133 Cal.App.3d 677,
681 [court must consider postprobation events to determine whether
the defendant should be reinstated on probation or incarcerated].)
Thus, defendant's claim that her probation violation was not as
serious “as it could have been” is not a mitigating factor to be
considered in determining the base term. Even if it could be
considered, it would be of little aid to her, because it still shows her
willingness to violate a condition of her probation by committing
another felony offense. And the felony offense she committed,
which was blatantly displayed on the Internet, involved possession
17
18
19
20
21
22
23
24
25
6
26
27
28
Rule 4.435 provides in pertinent part: “(b) On revocation and termination of probation
under section 1203.2, when the sentencing judge determines that the defendant will be committed
to prison: [¶] (1) . . . [¶] The length of the sentence must be based on circumstances existing at the
time probation was granted, and subsequent events may not be considered in selecting the base
term . . . .”
11
1
of a firearm – the same type of instrument that took the lives of the
two victims here. Moreover, as the trial court noted, she had no
legitimate reason to learn how to aim and shoot a firearm if she had
no intent to possess one.
2
3
Defendant sees mitigation in remaining crime free during the four
years before the violation of probation. While the court was free to
consider that defendant was crime free between the time she
entered her plea on June 2, 2006 and the grant of probation on May
20, 2009, rule 4.435 precludes consideration of her conduct after
the grant of probation for purposes of determining the base term.
However, that defendant remained crime free during her period of
cooperation with the prosecution is entitled to little weight, as she
was motivated during that time period to achieve the benefit of her
bargain and avoid exposure to two life terms for murder. And even
if the entire four years could be properly considered, we would
likely view that period as a rather short lapse of time, constituting
an aggravating factor. After all, it had only been four years since
she hatched the idea to commit a theft that resulted in the death of
two people, and only 16 months after she was formally placed on
probation.
4
5
6
7
8
9
10
11
12
As for defendant's cooperation prior to her grant of probation,
defendant received the benefit of her agreement. Where, as here, a
defendant's cooperation with law enforcement was the product of a
plea bargain whereby she obtained the dismissal of two counts of
murder, her cooperation is not a mitigating factor. (See People v.
Burg (1981) 120 Cal.App.3d 304, 306–307 [a guilty plea resulting
from a plea bargain is not a sufficient acknowledgment of guilt to
constitute a mitigating factor since the admission is only to receive
a benefit from the prosecution].)
13
14
15
16
17
That the offense may actually only have been attempted robbery
because nothing in the record shows that anything was taken is a
distinction with no difference. Not only is the claim contrary to
defendant's plea, which admitted the offense was a robbery,7 but
even if nothing was taken, that fact is in no way attributable to
defendant. It was the resistance by the victims that prevented a
completed robbery.
18
19
20
21
In sum, the court cited multiple aggravating factors. Any one of
those factors clearly outweighed the mitigating factors that could be
considered, including the fact that defendant had no prior
convictions.
22
23
Finally, defendant contends if probation was granted initially, it
does not follow that defendant should now receive the upper term
of nine years. Defendant asserts that the imposition of the upper
term, when her original sentence was probation “renders the
sentence hugely disproportionate to the facts of the case” and was
“grossly unfair under the circumstances.” In making this argument,
24
25
26
27
28
7
A defendant may not challenge on appeal the factual basis for his or her entry of a plea.
(People v. Voit (2011) 200 Cal.App.4th 1353, 1365–1366.)
12
1
2
3
4
5
6
7
8
defendant overlooks three circumstances. First, the bar was set low
in this case by the plea agreement. Defendant was initially granted
probation for her agreement to testify truthfully, and for no other
reason. Second, defendant was originally exposed to indeterminate
life sentences for the deaths of two people, and as part of her
bargain, she agreed that her maximum exposure would be limited to
12 years. Third, section 1203.2, subdivision (c) expressly provides
that, “[u]pon any revocation and termination of probation the court
may, if the sentence has been suspended, pronounce judgment for
any time within the longest period for which the person might have
been sentenced.” (Italics added.) Thus, the statutory scheme
contemplates the potential for long sentences after revocation of
probation.
Given the totality of the circumstances, there was no abuse of
discretion by the court in imposing the upper term for the robbery.
9
10
11
12
Butler, 2013 WL 1283866, at *3-6.
b. Applicable Law and Analysis
Petitioner’s challenge to her upper term sentence essentially involves an interpretation of
13
state sentencing law. As explained above, “it is not the province of a federal habeas court to
14
reexamine state court determinations on state law questions.” Wilson v. Corcoran, 562 U.S. 1, 5
15
(2010) (quoting Estelle, 502 U.S. at 67). So long as a sentence imposed by a state court “is not
16
based on any proscribed federal grounds such as being cruel and unusual, racially or ethnically
17
motivated, or enhanced by indigency, the penalties for violation of state statutes are matters of
18
state concern.” Makal v. State of Arizona, 544 F.2d 1030, 1035 (9th Cir. 1976). See also Miller
19
v. Vasquez, 868 F.2d 1116, 1118–19 (9th Cir. 1989) (issue concerning only state sentencing law
20
not suitable for federal habeas review). Thus, “[a]bsent a showing of fundamental unfairness, a
21
state court’s misapplication of its own sentencing laws does not justify federal habeas relief.”
22
Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). Under the circumstances of this case,
23
petitioner has failed to demonstrate that the state court’s imposition of the upper term sentence for
24
a robbery in which two people were killed was fundamentally unfair.
25
Petitioner also claims that her upper term sentence violates the Sixth Amendment, as set
26
forth in the Apprendi and Cunningham decisions. As respondent notes, these claims are
27
unexhausted. Exhaustion of state court remedies is a prerequisite to the granting of a petition for
28
a writ of habeas corpus. 28 U.S.C. §§ 2254(b)(1). However, notwithstanding petitioner’s failure
13
1
to exhaust these claims, the court recommends that they be denied on the merits. See 28 U.S.C.
2
§ 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits,
3
notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the
4
State”).
5
In Apprendi, Cunningham, and Blakely v. Washington, 542 U.S. 296 (2004), the United
6
States Supreme Court established that, for Sixth Amendment purposes, any fact that increases the
7
penalty for a crime beyond the prescribed statutory maximum, except the fact of a prior
8
conviction, must be submitted to a jury and proved beyond a reasonable doubt. Pursuant to
9
California law at the time petitioner was sentenced, California’s Determinate Sentencing Law for
10
a violation of a statute specifying three terms of imprisonment, such as a robbery, had been
11
amended in response to the Cunningham decision to provide that the choice between the three
12
terms “shall rest within the sound discretion of the court” without the need to find and weigh
13
aggravating or mitigating factors. See Cal. Penal Code § 1170(b) (2009). See also People v.
14
Sandoval, 41 Cal.4th 825, 836, n.2 (2007). In light of this amendment to California’s sentencing
15
law, the trial judge’s exercise of discretion to sentence petitioner to the maximum term for the
16
robbery did not violate the Sixth Amendment. See Chioino v. Kernan, 581 F.3d 1182, 1186 (9th
17
Cir. 2009) (describing California’s amended Determinate Sentencing Law as “amending [the law]
18
to comply with the constitutional requirements of Cunningham”); Butler v. Curry, 528 F.3d 624,
19
652 n. 20 (9th Cir. 2008) (“Following the decision in Cunningham, the California legislature
20
amended its statutes such that imposition of the lower, middle or upper term is now discretionary
21
and does not depend on the finding of any aggravating factors.”); Ochoa v. Uribe, No. ED CV 12-
22
586-RGK (PLA), 2013 WL 866118, at *7 (C.D. Cal. Jan. 28, 2013) (“Because the amendment to
23
§1170(b) eliminated the middle term as the statutory maximum, petitioner has not shown that the
24
imposition of the upper terms violated the rule formed in Apprendi, Blakely, and Cunningham.”);
25
Lloyd v. Gonzalez, No. CV 11-3321 PJW, 2012 WL 84046 at *3 (C.D. Cal. Jan. 10, 2012)
26
(“Under [the 2007 amendment to California Penal Code § 1170(b)] the trial judge was authorized
27
in its (sic) discretion to sentence Petitioner to the upper term without any aggravating factors
28
being proven to a jury or admitted by Petitioner.”); Jones v. Knipp, No. EDCV 09-139514
1
JSL(CW), 2012 WL 3839428 at *6 (C.D. Cal. July 27, 2012) (“At the outset, Petitioner’s claim
2
fails because he was sentenced pursuant to the amended DSL, which accords with the rule
3
announced in Apprendi as applied by Cunningham”); Juarez v. Allison, No. CV 10-10001-GE E,
4
2011 WL 3654449, at *5 (C.D. Cal. Mar. 22, 2011) (upper term sentence pursuant to amended
5
version of § 1170(b) did not violate the Sixth Amendment right to a jury trial).
6
Petitioner may also be claiming that that her upper term sentence of nine years on the
7
robbery charge, or her overall sentence of twelve years, constitutes cruel and unusual punishment
8
in violation of the Eighth Amendment to the United States Constitution. She is not entitled to
9
habeas relief on any such claim.
10
The United States Supreme Court has held that the Eighth Amendment includes a “narrow
11
proportionality principle” that applies to terms of imprisonment. See Harmelin v. Michigan, 501
12
U.S. 957, 996 (1991) (Kennedy, J., concurring). See also Taylor v. Lewis, 460 F.3d 1093, 1097
13
(9th Cir. 2006). However, successful challenges in federal court to the proportionality of
14
particular sentences are “exceedingly rare.” Solem v. Helm, 463 U.S. 277, 289-90 (1983). See
15
also Ramirez v. Castro, 365 F.3d 755, 775 (9th Cir. 2004). “The Eighth Amendment does not
16
require strict proportionality between crime and sentence. Rather, it forbids only extreme
17
sentences that are ‘grossly disproportionate’ to the crime.” Harmelin, 501 U.S. at 1001
18
(Kennedy, J., concurring) (citing Solem, 463 U.S. at 288, 303). In Lockyer v. Andrade, the United
19
States Supreme Court held that it was not an unreasonable application of clearly established
20
federal law for the California Court of Appeal to affirm a “Three Strikes” sentence of two
21
consecutive 25 year-to-life imprisonment terms for a petty theft with a prior conviction involving
22
theft of $150.00 worth of videotapes. Andrade, 538 U.S. at 75. The Supreme Court has also held
23
that a “Three Strikes” sentence of 25 years-to-life in prison imposed pursuant to a grand theft
24
conviction involving the theft of three golf clubs from a pro shop was not grossly disproportionate
25
and did not violate the Eighth Amendment. Ewing v. California, 538 U.S. 11, 29 (2003).
26
Petitioner has failed to show that her sentence falls within the type of “exceedingly rare”
27
circumstance that would justify habeas relief under the Eighth Amendment. Petitioner received a
28
sentence of twelve years in prison for her plea of no contest to one count of robbery of an
15
1
inhabited dwelling in concert with two or more persons, one count of conspiracy to commit
2
robbery, and an allegation that a principal was armed with a firearm. In Andrade and Ewing, the
3
United States Supreme Court upheld much longer sentences for far less serious crimes than the
4
crimes petitioner was convicted of. In Harmelin, the Supreme Court upheld a sentence of life
5
without the possibility of parole for possessing a large quantity of cocaine. Harmelin, 501 U.S. at
6
996. In Rummel v. Estelle, 445 U.S. 263 (1980), the Supreme Court concluded that a sentence of
7
life with the possibility of parole for obtaining money by false pretenses did not constitute cruel
8
and unusual punishment. Rummel, 445 U.S. at 282. In light of these decisions of the United
9
States Supreme Court, it cannot be said that the sentence imposed in petitioner’s case was grossly
10
disproportionate. Accordingly, petitioner is not entitled to federal habeas relief on any claim that
11
her sentence violates the Eight Amendment.
12
2. Consecutive Terms
13
14
In her second ground for relief, petitioner claims that the trial court abused its discretion in
imposing “consecutive terms.” ECF No. 1 at 4. She explains:
15
Court did not identify any other reasons for imposing consecutive
sentences for a two year term for the same act. Penal Code PC 654
states in part, “An acquittal or conviction & sentence under anyone
bars a prosecution for the same act or omission under any other.”
Thus violating 6th, 8th, 14th Amendment.
16
17
18
19
Id.
Petitioner also challenged the trial court’s imposition of consecutive terms on appeal. The
20
state appellate court found that her claim in this regard had been waived because of her trial
21
counsel’s failure to object to the sentence on this ground at the sentencing proceedings. The court
22
reasoned as follows:
23
II. Imposition of Consecutive Sentences
24
Defendant contends reversal of the consecutive term of two years
for the conspiracy conviction is required for three reasons. First,
the court failed to state any factor for imposing the consecutive
term. Second, if this court finds the trial court did state such a
factor, it must have been only that defendant had taken advantage
of a position of trust, which constitutes a prohibited dual use of that
factor. Third, if this court concludes defendant's failure to object to
the foregoing errors forfeited the issue for appellate review, then
she received ineffective assistance of counsel.
16
25
26
27
28
1
We conclude that defendant has forfeited the first two claims. In
People v. Scott (1994) 9 Cal.4th 331 (Scott), our high court stated,
“We conclude that the waiver doctrine should apply to claims
involving the trial court's failure to properly make or articulate its
discretionary sentencing choices. Included in this category are
cases in which the stated reasons allegedly do not apply to the
particular case, and cases in which the court purportedly erred
because it double-counted a particular sentencing factor,
misweighed the various factors, or failed to state any reasons or
give a sufficient number of valid reasons.” (Scott, supra, 9 Cal.4th
at p. 353.) Here, defendant did not object on the ground that the
trial court failed to specifically state any reason for imposing a
consecutive sentence, or on a dual use of fact ground.
Consequently, the issue is forfeited.
2
3
4
5
6
7
8
Defendant claims that defense counsel preserved these contentions.
She points out that in her statement of mitigation, which the trial
court stated it had read and considered, she argued that the
probation officer's statement that consecutive sentencing was
proper because the crimes were committed at different times and
separate places (rule 4.425(a)(3)) was not factually accurate and
should have alerted the court that it was required to state reasons for
imposing a consecutive term.
9
10
11
12
13
We disagree. “Although the court is required to impose sentence in
a lawful manner, counsel is charged with understanding,
advocating, and clarifying permissible sentencing choices at the
hearing. Routine defects in the court's statement of reasons are
easily prevented and corrected if called to the court's attention. As
in other waiver cases, we hope to reduce the number of errors
committed in the first instance and preserve the judicial resources
otherwise used to correct them.” (Scott, supra, 9 Cal.4th at p. 353.)
Thus, it was defendant's burden to point out to the court at the time
of sentencing that it had not stated any reason for imposition of a
consecutive term on the conspiracy sentence or that it had doublecounted factors. The court could have corrected the error then.8
14
15
16
17
18
19
8
20
21
22
23
24
25
26
27
28
On January 20, 2012, the People filed a motion to augment the record with the trial
court's minute order denying defendant's petition for modification of sentence, which the trial
court filed over a month after defendant filed her notice of appeal. Although not necessary for
our disposition of this matter, we grant the People's motion to augment the record with the court's
minute order.
In its order, the court wrote, “[D]efendant seeks a concurrent sentence as to Count 4, a
violation of Penal Code section 182. The Court continues to find that based upon California
Rule[s] of Court, Rule 4.425(a)(3) [the crimes were committed at different times or separate
places, rather than being committed so closely in time and place as to indicate a single period of
aberrant behavior], the crime of robbery of an inhabited dwelling in concert with two or more
persons (Count 3) and the crime of conspiracy to commit robbery of an inhabited dwelling in
concert with two or more persons (Count 4) occurred at different times and locations. The
robbery of an inhabited dwelling in concert with two or more person occurred at Olivehurst,
California on or about September 27, 2005. The conspiracy to commit robbery of an inhabited
dwelling in concert with two or more persons began in early September 2005 in the Sacramento,
California area . . . . In view of the Court's sentencing objectives and Rule 4.425(a)(3), the Court
continues to finds [sic ] that the consecutive sentence of one-third of the middle term of six years,
17
1
Therefore, defendant may not raise the issue for the first time on
appeal.
2
3
4
Butler, 2013 WL 1283866, at **6-7.
Respondent argues that petitioner’s second ground for relief is unexhausted and
5
procedurally defaulted. ECF No. 14 at 24. It is true that “[a] federal habeas court will not review
6
a claim rejected by a state court ‘if the decision of [the state] court rests on a state law ground that
7
is independent of the federal question and adequate to support the judgment.” Martin, 131 S. Ct.
8
at 1127. However, a reviewing court need not invariably resolve the question of procedural
9
default prior to ruling on the merits of a claim. Lambrix v. Singletary, 520 U.S. 518, 524-25
10
(1997); see also Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (“Procedural bar issues
11
are not infrequently more complex than the merits issues presented by the appeal, so it may well
12
make sense in some instances to proceed to the merits if the result will be the same”); Busby v.
13
Dretke, 359 F.3d 708, 720 (5th Cir. 2004) (noting that although the question of procedural default
14
should ordinarily be considered first, a reviewing court need not do so invariably, especially when
15
the issue turns on difficult questions of state law). Thus, where deciding the merits of a claim
16
proves to be less complicated and less time-consuming than adjudicating the issue of procedural
17
default, a court may exercise discretion to reject the claim in its merits and forgo an analysis of
18
procedural default. See Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998); Batchelor v.
19
Cupp, 693 F.2d 859, 864 (9th Cir. 1982). Under the circumstances presented here, the
20
undersigned finds that petitioner’s claim can be resolved more easily by addressing it on the
21
merits. Accordingly, this court will assume that petitioner’s second ground for relief is not
22
procedurally defaulted. The court also concludes that this sentencing claim should be denied on
23
the merits, notwithstanding petitioner’s failure to exhaust the claim in state court. 28 U.S.C.
24
§ 2254(b)(2).
25
Although petitioner adds a citation to the Sixth, Eighth, and Fourteenth Amendments in
26
her description of this claim, her second claim for relief essentially involves the interpretation of
27
namely 2 years is warranted for the subordinate term, a felony violation of Penal Code section
182.” While the trial court indicates it “continues to” make the above findings, the court never
articulated that finding on the record during the sentencing hearing.
18
28
1
state sentencing law. A habeas petitioner may not “transform a state-law issue into a federal one”
2
merely by asserting a violation of the federal constitution. Langford v. Day, 110 F.3d 1380, 1389
3
(9th Cir. 1997). Rather, as set forth above, petitioner must show that the decision of the
4
California Court of Appeal somehow “violated the Constitution, laws, or treaties of the United
5
States.” Little v. Crawford, 449 F.3d 1075, 1083 (9th Cir. 2006) (quoting Estelle, 502 U.S. at 68).
6
Petitioner’s claim, which essentially involves a challenge to state sentencing laws, is not
7
cognizable in this federal habeas action.
8
Even if the claim were cognizable, petitioner has failed to show that her consecutive two-
9
year sentence for conspiracy violates the Sixth Amendment or any other provision of the federal
10
constitution. In Oregon v. Ice, 555 U.S. 160 (2009), the United States Supreme Court held that
11
judges have discretion to determine whether sentences are imposed consecutively or concurrently
12
under the Sixth Amendment rules announced in Apprendi and Blakely. The Court found that
13
“[t]he decision to impose sentences consecutively is not within the jury function that ‘extends
14
down centuries into the common law.’” Id. at 168 (quoting Apprendi, 530 U.S. at 477). Instead,
15
“specification of the regime for administering multiple sentences has long been considered the
16
prerogative of state legislatures.” Id. The Sixth Amendment does not prohibit trial judges from
17
finding facts necessary to support the imposition of consecutive, rather than concurrent,
18
sentences. Id. at 167-71. Accordingly, petitioner is not entitled to relief on any claim based on
19
the Sixth Amendment.
20
As explained above, petitioner has also failed to demonstrate that her sentence violates the
21
Eighth Amendment proscription against cruel and unusual punishment, or that it is fundamentally
22
unfair, in violation of the Fourteenth Amendment. Accordingly, petitioner is not entitled to relief
23
on her claims under the Eighth and Fourteenth Amendments.
24
For all of the foregoing reasons, petitioner’s second ground for relief should be denied.
25
B. Ineffective Assistance of Counsel
26
In her final ground for relief, petitioner claims that her trial counsel rendered ineffective
27
assistance. ECF No. 1 at 5. Her claim is stated, in full, as follows:
28
/////
19
1
Ineffective assistance of counsel for failure to object. Violates
Strickland vs. Washington. His failure to object to judge sentencing
among his other duties fell below normal standards and in doing so
it prejudice defendant at trial and post trial.
2
3
4
5
Id.
1. State Court Decision
6
On direct appeal, petitioner claimed that her trial counsel rendered ineffective assistance
7
in failing to object at the sentencing hearing to the trial court’s imposition of a consecutive term
8
for the conspiracy conviction. Id. at 34-37. She argued that “the objection would have been
9
meritorious because the trial court clearly erred in failing to articulate reasons for the consecutive
10
term or in its dual use of an aggravating factor.” Id. at 37. Petitioner also argued that trial
11
counsel’s deficient performance resulted in prejudice because “there is a reasonable probability
12
that without the trial court’s errors, a concurrent term would have been selected.” Id.
13
14
15
16
17
18
19
The California Court of Appeal rejected these arguments, reasoning as follows:
As to defendant's claim that failure to object results in
constitutionally ineffective assistance of counsel, we disagree. To
establish ineffective assistance of counsel, a defendant must show
(1) counsel's performance was below an objective standard of
reasonableness under prevailing professional norms, and (2) the
deficient performance prejudiced defendant.
(Strickland v.
Washington (1984) 466 U.S. 668, 688, 691–692 [80 L.Ed.2d 674]
(Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216–217
(Ledesma).) “‘Surmounting Strickland 's high bar is never an easy
task.’ [Citation.]” (Harrington v. Richter (2011) U.S. [178
L.Ed.2d 624, 642] (Richter), quoting Padilla v. Kentucky (2010)
599 U.S. , [176 L.Ed.2d 284, 297].)
20
21
22
23
24
25
We follow our high court's direction, “‘If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.’” (In re Alvernaz
(1992) 2 Cal.4th 924, 945.) To show prejudice, a defendant must
show a reasonable probability that he would have received a more
favorable result had counsel's performance not been deficient.
(Strickland, supra, 466 U.S. at pp. 693–694; Ledesma, supra, 43
Cal.3d at pp. 217–218.) “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” (Strickland,
supra, 466 U.S. at p. 694; accord, Ledesma, supra, 43 Cal.3d at p.
218.)
26
27
28
Rule 4.425(b) provides that “[a]ny circumstances in aggravation or
mitigation may be considered in deciding whether to impose
consecutive rather than concurrent sentences,” except a fact used to
impose the upper term, a fact used to otherwise enhance the
20
1
defendant's prison sentence, and a fact that is an element of the
crime. As we have noted, any one of the aggravating factors
identified by the trial court was sufficient to justify imposition of
the upper term. For example, assuming that in selecting the upper
term the court used the factor that defendant took advantage of a
position of trust in the way it described when it gave its reasons for
imposing the upper term, the following factors remain available for
use in imposing a consecutive sentence. Not only did the robbery
involve great violence (rule 4.421(a)(1)), but people were killed.
Thus, the robbery was distinctly worse than the customary robbery.
(People v. Castorena (1996) 51 Cal.App.4th 558, 562 (Castorena)
[where the facts surrounding the charged offense exceed the
minimum necessary to establish the elements of the crime, the trial
court can use such evidence to aggravate the sentence and the trial
court is not precluded from using facts to aggravate a sentence
when those facts establish elements not required for the underlying
crime].) Moreover, the fact that there is more than one victim is a
proper factor for imposition of upper term or consecutive sentences.
(People v. Calhoun (2007) 40 Cal.4th 398, 405–408, citing rule
4.408(a).)
2
3
4
5
6
7
8
9
10
11
Defendant's participation in the way the crime was carried out
shows planning and sophistication (rule 4.421(a)(8)). In addition,
she induced others to participate in the commission of the crime and
occupied a position of leadership in its commission (rule
4.421(a)(4)). Defendant's contention that consideration of the use
of the planning factor violates the dual use rule because planning is
an element of the conspiracy unavailing. Even assuming planning
is an element of conspiracy,9 in making a sentencing choice the
court may consider the totality of a defendant's involvement in the
crime. (Rule 4.421(a)(4); Castorena, supra, 51 Cal.App.4th at p.
562.) Defendant was more than a follower. She originated the idea
of committing a theft of marijuana from the victims who were
killed.10 Moreover, the object of the theft was a suspected large
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9
Strictly speaking, planning is not an element of conspiracy. “A conviction for
conspiracy requires proof of four elements: (1) an agreement between two or more people, (2)
who have the specific intent to agree or conspire to commit an offense, (3) the specific intent to
commit that offense, and (4) an overt act committed by one or more of the parties to the
agreement for the purpose of carrying out the object of the conspiracy. [Citations.]” (People v.
Vu (2006) 143 Cal.App.4th 1009, 1024 (Vu).) Nor does the prosecution have to show
sophistication as an element of conspiracy. Yet, the original plan conceived by defendant showed
just that.
10
While the trial court discussed defendant's involvement in the crime in the context of
denying probation (see fn. 3, ante ) and in later describing how she took advantage of a position
of trust, the court did not expressly mention as aggravating circumstances for imposing the upper
term that defendant conceived the idea of stealing the marijuana from the victims, presented that
idea to the coconspirators, and did nothing to stop the commission of the crimes.
The other aspects of defendant's involvement the court expressly mentioned it considered
in connection with the position of trust factor could have been considered under rule 4.421(a)(4)
as circumstances showing her leadership in the crime or as separate factors relevant to the
21
1
quantity of contraband that was to be sold and defendant was to
share in the proceeds. (Rule 4.408(a); see rule 4.421(a)(10).)11
Lastly, we observe that the victims' family dog was shot, a violation
of section 597, subdivisions (a) and (d) and a fact that could be
considered an aggravating factor under rule 4.421(a)(1), facts
related to the crime, whether or not charged, that involved “a high
degree of cruelty, viciousness, or callousness.” Because these
factors would all be available to the court upon resentencing,12 there
is no reasonable likelihood defendant would obtain a more
favorable outcome. Hence, defendant cannot establish prejudice.
2
3
4
5
6
7
Butler, 2013 WL 1283866, at **7-8.
2. Applicable Legal Standards
8
9
The applicable legal standards for a claim of ineffective assistance of counsel are set forth
10
in Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a Strickland claim, a defendant
11
must show that (1) his counsel's performance was deficient and that (2) the “deficient
12
performance prejudiced the defense.” Id. at 687. Counsel is constitutionally deficient if his or
13
her representation “fell below an objective standard of reasonableness” such that it was outside
14
“the range of competence demanded of attorneys in criminal cases.” Id. at 687–88 (internal
15
16
17
18
19
sentencing decision under rule 4.408(a). These included the following: defendant took the other
coconspirators to the location, actively participated in the first attempt to steal the marijuana by
luring one of the victims away from the premises, and provided the coconspirators with
information concerning the victims' ability to resist, including the fact that the victims had
firearms and the location where they kept those firearms. As the court appears to have considered
these facts under the position of trust factor, they cannot be used again as a reason for consecutive
sentences.
20
11
21
22
23
24
25
26
27
28
Under rule 4.421(a)(10), it is an aggravating factor when the crime involves a “large
quantity of contraband.” The record is not clear on the size of the crop defendant and her crime
partners sought to steal, but we must assume the conspirators thought it large enough that they
could make money from selling it. Even assuming the crop did not qualify as particularly large,
that defendant suggested stealing a controlled substance knowing that the purpose was to resell it
and that she planned to personally share in the proceeds are facts reasonably related to the
sentencing decision under rule 4.408(a).
12
We need not decide whether the court was justified in determining that the robbery and
conspiracy were committed at different times and places, because that reason was only stated by
the trial court in its order denying defendant's motion to modify the sentence after defendant's
notice of appeal was filed. We do note that conspiracy is an ongoing going crime (Vu, supra, 143
Cal.App.4th at p. 1024), so a conspiracy may take place in locations other than where the
agreement is reached.
22
1
quotation marks omitted). “Counsel’s errors must be ‘so serious as to deprive the defendant of a
2
fair trial, a trial whose result is reliable.’” Richter, 131 S.Ct. at 787-88 (quoting Strickland, 466
3
U.S. at 687).
4
A reviewing court is required to make every effort “to eliminate the distorting effects of
5
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
6
conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 669; see Richter, 131
7
S.Ct. at 789. Reviewing courts must also “indulge a strong presumption that counsel's conduct
8
falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
9
This presumption of reasonableness means that the court must “give the attorneys the benefit of
10
the doubt,” and must also “affirmatively entertain the range of possible reasons [defense] counsel
11
may have had for proceeding as they did.” Cullen v. Pinholster, 563 U.S. 170, 196 (2011)
12
(internal quotation marks and alterations omitted).
13
Prejudice is found where “there is a reasonable probability that, but for counsel’s
14
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466
15
U.S. at 694. A reasonable probability is “a probability sufficient to undermine confidence in the
16
outcome.” Id. “The likelihood of a different result must be substantial, not just conceivable.”
17
Richter, 131 S.Ct. at 792. A reviewing court “need not first determine whether counsel’s
18
performance was deficient before examining the prejudice suffered by the defendant as a result of
19
the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of
20
lack of sufficient prejudice . . . that course should be followed.” Strickland, 466 U.S. at 697.
21
22
3. Analysis
The Strickland standards govern claims for ineffective assistance of counsel in noncapital
23
sentencing proceedings. Daire v. Lattimore, 812 F.3d 766 (9th Cir. 2016). After reviewing the
24
record of the sentencing proceedings in petitioner’s case, this court does not find that petitioner’s
25
trial counsel rendered ineffective assistance in failing to object to the trial court’s decision to
26
impose a consecutive sentence for the conspiracy conviction.
27
28
As set forth above, the California Court of Appeal concluded that trial counsel’s failure to
object to the trial court’s imposition of a consecutive sentence for the conspiracy conviction did
23
1
not result in prejudice because that sentence was fully supported by the trial record and was
2
proper under California law. The state court’s decision that petitioner’s sentence complied with
3
the requirements of California law is binding on this court. See Bradshaw v. Richey, 546 U.S. 74,
4
76 (2005) (“We have repeatedly held that a state court’s interpretation of state law, including one
5
announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas
6
corpus”); Horton v. Mayle, 408 F.3d 570, 576 (9th Cir. 2005) (citing Mullaney v. Wilbur, 421
7
U.S. 684, 691 (1975)) (“If a state law issue must be decided in order to decide a federal habeas
8
claim, the state’s construction of its own law is binding on the federal court).
9
Further, the decision of the Court of Appeal is not based on an unreasonable determination
10
of the facts of this case. The facts of this case, as set forth in the record supports the court’s
11
conclusion that the robbery in this case involved great violence, that there was more than one
12
victim, that petitioner’s participation in the way the crime was carried out showed planning and
13
sophistication, that petitioner induced others to participate in the robbery, that the object of the
14
theft was a suspected large quantity of contraband that was to be sold, and that the victims’ family
15
dog was shot. See Clerk’s Transcript on Appeal at 72-73, 151, 163-66, 168-70. According to the
16
Court of Appeal, any of these factors would have supported the trial court’s imposition of a
17
consecutive term for the conspiracy. Under these circumstances, petitioner cannot show deficient
18
performance or prejudice from her trial counsel’s failure to object to the imposition of
19
consecutive sentences. An objection on these grounds would not have been successful. Rupe v.
20
Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (“the failure to take a futile action can never be
21
deficient performance”).
22
23
For all of the foregoing reasons, petitioner is not entitled to relief on her claim of
ineffective assistance of trial counsel.
24
C. Traverse
25
In the traverse, petitioner claims that prosecutorial misconduct induced her to enter into a
26
plea agreement in which she waived potential sentencing issues arising under Cal. Penal Code
27
654. ECF No. 15 at 5-7. She also asserts that her plea agreement somehow violated her right to
28
“equal protection of constitutional law;” that her conviction for possession of a firearm was based
24
1
on insufficient evidence; and that the trial court’s use of the “crimes of murder, for which
2
petitioner was never charged, as factors in aggravation,” violated her right to equal protection of
3
the laws. Id. at 6-7, 13. Petitioner states that she “can not be forever held accountable for two
4
murders.” Id. at 13. She also disagrees with some of the facts contained in respondent’s brief on
5
appeal. Id. at 7-9.
6
To the extent petitioner is attempting to belatedly raise new claims in the traverse, relief
7
should be denied. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (a traverse is
8
not the proper pleading to raise additional grounds for relief); Greenwood v. Fed. Aviation
9
Admin., 28 F.3d 971, 977 (9th Cir. 1994) (“we review only issues which are argued specifically
10
and distinctly in a party’s opening brief”). Even if these claims had been properly raised,
11
petitioner’s conclusory allegations fail to demonstrate that the prosecutor committed misconduct,
12
that her plea agreement violated the Fourteenth Amendment Equal Protection Clause, or that her
13
convictions are based on insufficient evidence. See Jones v. Gomez, 66 F.3d 199, 204 (9th Cir.
14
1995) (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“It is well-settled that ‘[c]onclusory
15
allegations which are not supported by a statement of specific facts do not warrant habeas
16
relief’”)). With regard to petitioner’s sentence, for the reasons set forth above petitioner has
17
failed to show that the trial court’s imposition of the upper term for the robbery or a consecutive
18
two year term for the conspiracy violates the federal constitution.
19
IV. Conclusion
20
21
Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of
habeas corpus be denied.
22
These findings and recommendations are submitted to the United States District Judge
23
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
24
after being served with these findings and recommendations, any party may file written
25
objections with the court and serve a copy on all parties. Such a document should be captioned
26
“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
27
shall be served and filed within fourteen days after service of the objections. Failure to file
28
objections within the specified time may waive the right to appeal the District Court’s order.
25
1
Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
2
1991). In his objections petitioner may address whether a certificate of appealability should issue
3
in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section
4
2254 Cases (the district court must issue or deny a certificate of appealability when it enters a
5
final order adverse to the applicant).
6
DATED: October 20, 2016.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
26
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?