Frankie Washington v. Derral Adams ( 2019 )


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  •                                NOT FOR PUBLICATION                                  FILED
    UNITED STATES COURT OF APPEALS                                FEB 11 2019
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    FRANKIE KAREN WASHINGTON,                              No.      17-55690
    Petitioner-Appellant,                D.C. No. 06-156-DOC (PLA)
    v.
    MEMORANDUM*
    DERRAL G. ADAMS, Warden,
    Respondent-Appellee.
    Appeal from the United States District Court
    for the Central District of California
    The Honorable David O. Carter, Presiding
    Submitted February 6, 2019**
    Pasadena, California
    Before: WARDLAW and BEA, Circuit Judges, and MURPHY,*** District Judge.
    Frankie Washington, a California state prisoner, appeals the district court’s
    denial and dismissal of her petition for writ of habeas corpus pursuant to 28 U.S.C.
    *
    This disposition is not appropriate for publication and is not precedent except as
    provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision without oral
    argument. See Fed. R. App. P. 34(a)(2).
    ***
    The Honorable Stephen J. Murphy, III, United States District Judge for the
    Eastern District of Michigan, sitting by designation.
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    § 2254. Her petition raised a sentencing claim based in part on Cunningham v.
    California, 
    549 U.S. 270
     (2007). The district court granted a certificate of
    appealability. We have jurisdiction under 
    28 U.S.C. §§ 1291
     and 2253.
    Washington was convicted in state court on thirteen counts—including six
    counts of attempted murder and three counts of assault with a deadly weapon—
    after she and her accomplices kidnapped a minor at gunpoint and shot at an
    occupied residence at night with multiple weapons, including an assault rifle. Each
    count of attempted murder was for each of the home’s occupants. The jury found,
    with respect to each attempted murder, that a principal was armed with a firearm.
    On February 21, 2003, the trial court sentenced Washington to an aggregate
    sentence including an upper-term sentence on Count 8, one of the counts of
    attempted murder. The trial court explained that the upper term sentence was “due
    to the degree of danger and the use of high-powered weapons.” The sentencing
    occurred before the Supreme Court decided Cunningham.
    Adams conceded that the upper limit sentencing on Count 8 was rendered
    erroneous by Cunningham. The district court determined, however, that the error
    was harmless under Brecht v. Abrahamson, 
    507 U.S. 619
     (1993). We agree.
    A federal constitutional error is not harmless if it resulted in actual prejudice,
    which occurs if the error had a substantial and injurious effect. Brecht, 
    507 U.S. at
    637–38. Washington must show that there is a “reasonable probability” that the
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    jury would have reached a different result but for the alleged error. Clark v. Brown,
    
    450 F.3d 898
    , 916 (9th Cir. 2006). Brecht’s “substantial and injurious effect” test
    applies to sentencing errors. Stokley v. Ryan, 
    705 F.3d 401
    , 403 (9th Cir. 2012).
    For habeas relief to be appropriate under Brecht for a Cunningham error, the
    district court must be in “‘grave doubt’ as to whether a jury would have found the
    relevant aggravating factors beyond a reasonable doubt.” Butler v. Curry, 
    528 F.3d 624
    , 648 (9th Cir. 2008) (citing O’Neal v. McAninch, 
    513 U.S. 432
    , 436 (1995)). A
    Cunningham error is harmless if the court has no grave doubt that a jury would
    have found at least one aggravating circumstance beyond a reasonable doubt. 
    Id.
    The district court correctly found no reasonable probability that the jury
    would not have found beyond a reasonable doubt that the attempted murder in
    Count 8 was aggravated by the dangerous manner in which it was committed.
    There was overwhelming evidence of dangerousness: one firearm was a military
    assault weapon, twenty bullet casings were recovered at the scene, and bullet holes
    were found at several locations inside and outside the residence. The evidence
    shows a level of danger that exceeds that inherent in six attempted murders absent
    aggravating circumstances. We have no grave doubt that the jury would have
    found beyond a reasonable doubt that the crime was aggravated.
    The trial court also did not improperly impose the upper term on Count 8
    based on the same facts used to sentence Washington consecutively on her
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    multiple convictions. The other counts of attempted murder were imposed
    consecutively in part because they involved separate victims. And, although the
    trial court sentenced Washington consecutively on two counts of assault with a
    deadly weapon, the counts involved the kidnapping of the minor from her home.
    The trial court therefore did not sentence Washington to the upper term on Count 8
    using the same facts supporting the consecutive sentences on other counts.
    Washington does not show actual prejudice under Brecht. The trial court’s
    imposition of the upper term sentence on Count 8 was harmless error.
    AFFIRMED.
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