Jose Estrella v. Derrick Ollison , 668 F.3d 593 ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ANTONIO ESTRELLA,  No. 10-56203
Petitioner-Appellant, D.C. No.
v.  5:06-cv-01086-
DERRICK L. OLLISON, Warden, CJC-FFM
Respondent-Appellee.
 OPINION
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted
December 9, 2011—Pasadena, California
Filed December 29, 2011
Before: Dorothy W. Nelson, Ronald M. Gould, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge D.W. Nelson
21495
ESTRELLA v. OLLISON 21497
COUNSEL
Michael Tanaka, Deputy Federal Public Defender, Los Ange-
les, California, for the petitioner-appellant.
21498 ESTRELLA v. OLLISON
Matthew Mulford, Deputy Attorney General, Office of Attor-
ney General of California, San Diego, California, for the
respondent-appellee.
OPINION
D.W. NELSON, Senior Circuit Judge:
Petitioner Jose Estrella appeals the denial of his habeas
petition. Estrella contends that the California state trial court
violated his Sixth Amendment rights when it imposed an
upper term sentence based in part on its conclusion that he
was on parole for a violent offense at the time of the crime.
The district court concluded that Estrella suffered an error
pursuant Apprendi v. New Jersey, 530 U.S. 466 (2000), but
found any such error harmless. We agree and affirm.
I. Background
A Riverside County jury convicted Estrella of kidnapping
in violation of California Penal Code § 207 and other crimes
for events that took place late on the night of September 2,
2002, and that continued into the early morning hours of Sep-
tember 3, 2002. The jury found that Estrella had a prior con-
viction for aggravated assault in violation of California Penal
Code § 245(a)(1). Estrella admitted this fact after the jury ver-
dict but before sentencing.
The trial court considered the probation report at sentenc-
ing. The probation report reflects criminal history information
culled from FBI, DMV and Riverside Superior Court records:
Estrella was convicted on August 14, 2000, for a violation of
California Penal Code § 245(a)(1). The Riverside Superior
Court sentenced Estrella to three years of formal probation for
that conviction. A petition to revoke probation was filed on
September 18, 2001. At a probation hearing on October 25,
ESTRELLA v. OLLISON 21499
2001, Estrella admitted to a violation of probation, was found
in violation of probation and was sentenced to two years in
state custody. Authorities placed him in custody on October
30, 2001. On July 11, 2002, Estrella was “[p]aroled to a
USINS hold.” On September 3, 2002, Estrella’s parole was
suspended, and he was returned to prison for further proceed-
ings. On November 13, 2002, Estrella’s parole was revoked
and he was returned to custody for twelve months. The proba-
tion report also states that Estrella was on parole at the time
he committed the underlying kidnapping. Estrella did not
make an explicit objection to the probation report at sentenc-
ing.
At the time of Estrella’s sentencing, California law pro-
vided a range of prison terms for kidnapping: three, five or
eight years. Cal. Penal Code § 208(a). The trial court sen-
tenced Estrella to the upper term of eight years, citing four
factors in aggravation. The only factor at issue on appeal is
whether Estrella was on parole for a violent offense at the
time he committed the underlying kidnapping. The trial court
doubled the eight-year upper term sentence pursuant to Cali-
fornia’s habitual offender provision, known as “Three
Strikes.” Cal. Penal Code § 667(e)(1). Also pursuant to Cali-
fornia’s Three Strikes law, the trial court added a consecutive
five-year term. Cal. Penal Code § 667(a) (1). For Estrella’s
remaining convictions, the trial court imposed concurrent
terms. In all, Estrella’s prison term totaled 21 years.
Estrella appealed. The California Court of Appeal affirmed
his conviction and sentence for all issues relevant to the mat-
ter before us. Estrella filed a petition for review in the Califor-
nia Supreme Court. The California Supreme Court denied the
petition without prejudice to any relief to which Estrella
might be entitled after the court determined the effect of
Blakely v. Washington, 542 U.S. 296 (2004) on California law
in two companion cases then-pending before the California
Supreme Court.
21500 ESTRELLA v. OLLISON
Estrella brought a timely federal petition contending in part
that his upper term sentence of eight years violated the Sixth
Amendment, as the trial court found additional facts not
proven beyond a reasonable doubt to a jury. The district court
concluded that imposition of the upper term was contrary to
clearly established federal law as set forth in Apprendi, 530
U.S. 466 (2000), Blakely, 542 U.S. 296 (2004) and United
States v. Booker, 543 U.S. 220 (2005). The district court
ordered an evidentiary hearing to determine prejudice. Fol-
lowing that hearing, the district court deemed the error harm-
less and denied Estrella’s habeas petition.
II. Standard of Review
We have jurisdiction pursuant to 28 U.S.C. 2253, and we
review de novo the district court’s denial of Estrella’s habeas
petition. Brown v. Horell, 644 F.3d 969, 978 (9th Cir. 2011).
As the petition was filed after April 24, 1996, the provisions
of the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) govern our review. Lindh v. Murphy, 521 U.S.
320, 322 (1997) (holding that AEDPA applies to petitions
filed after April 24, 1996). Under AEDPA, we cannot grant
habeas relief to Estrella unless the state court’s decision was
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1).
III. Analysis
A. Apprendi Error
[1] Estrella’s eight-year upper term sentence for kidnap-
ping violated the Sixth Amendment. “Other than the fact of
a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be sub-
mitted to a jury, and proved beyond a reasonable doubt.”
Apprendi, 530 U.S. at 490. In Butler v. Curry, we held that
probation status falls outside the prior conviction exception to
ESTRELLA v. OLLISON 21501
Apprendi. 528 F.3d 624, 643-48 (9th Cir. 2008). We did so
because, under California law, a judge retains the authority to
modify the terms of probation at any time, including by termi-
nating probation early or extending it for a longer term. But-
ler, 528 F.3d at 646. Because a court can modify the
probation term after sentencing, those changes would not
appear in the original conviction documents. Id. Therefore,
we concluded that the prior conviction exception to Apprendi
did not apply to probation status.
[2] We are persuaded that our analysis in Butler applies
analogously to an individual’s parole status, and, therefore,
that parole status also does not fall within the prior conviction
exception to Apprendi. As with probation, an individual’s
parole status can be altered after sentencing whether by sus-
pension or revocation. Cal. Penal Code §§ 3060, 5077. It is
true that revocation of probation requires a judicial determina-
tion of probable cause, while jurisdiction over parolees and
the parole process is vested in an administrative agency. Com-
pare People v. Coleman, 533 P.2d 1024, 1045-46 (Cal. 1975)
with In re Muszalski, 125 Cal. Rptr. 286, 290-91 (Cal. Ct.
App. 1975). This distinction does not alter our conclusion,
however. The determinative factor for deciding whether the
prior conviction exception should apply to an individual’s
parole or probation status is not the type of agency or judicial
officer with the power to change the individual’s status.
Rather, it is the fact that one’s parole or probation status can
be changed, and that potential changes would occur after the
imposition of a sentence, that informs our analysis. See Cal.
Penal Code §§ 1203.3(a), 3060, 5077. Because these later
changes can take place after judgment, we cannot be certain
that the original conviction documents reflect accurately an
individual’s parole status. Therefore, we adopt the reasoning
in Butler and hold that “the fact of being on [parole] at the
time of a crime does not come within the ‘prior conviction’
exception and must be pleaded in an indictment and proved
to a jury beyond a reasonable doubt.” Butler, 528 F.3d at 647.
21502 ESTRELLA v. OLLISON
[3] Here, California law provided for three possible prison
terms for kidnapping at the time of Estrella’s sentencing:
three, five or eight years. Cal. Penal Code § 208(a). The mid-
dle term of five years was the relevant statutory maximum.
Cunningham v. California, 549 U.S. 270, 293 (2007). The
trial court sentenced Estrella to the upper term upon finding
that Estrella was on parole for a violent offense at the time of
the kidnapping. Estrella’s parole status at the time of the kid-
napping was a fact other than a prior conviction that was not
proved to a jury beyond a reasonable doubt. Imposition of the
upper term sentence violated Estrella’s Sixth Amendment
rights. Moreover, Butler held even before the Supreme Court
issued its decision in Cunningham v. California, 549 U.S. 270(2007) (holding that Apprendi applied to a state court’s deci-
sion to impose the high term under California’s determinate
sentencing law), a California court’s decision to impose an
upper term sentence based on matters not proved to a jury
beyond a reasonable doubt was “contrary to” clearly estab-
lished Supreme Court precedent (i.e., Apprendi and Blakely)
that was in existence at the time of the state court’s decision.
Butler, 528 F.3d at 640-41; see also 28 U.S.C. § 2254(d)(1).
Butler is directly on point here. Because the Supreme Court
had decided Apprendi and Blakely before the state court ruled
on this case, the state court’s decision was “contrary to”
clearly established Supreme Court precedent and we need not
defer to it under AEDPA.
B. Harmless Error Analysis
[4] The finding of a constitutional error does not end our
inquiry. In order to obtain relief, the Apprendi error must have
caused Estrella prejudice. Butler, 528 F.3d at 648. The harm-
less error standard applies. Washington v. Recuenco, 548 U.S.
212, 218-20 (2006) (applying harmless error analysis to
Apprendi violation). On habeas review, we must determine
whether the error had a substantial and injurious effect or
influence on the sentence. Brecht v. Abrahamson, 507 U.S.
619, 637 (1993). Using that standard, we must grant relief if
ESTRELLA v. OLLISON 21503
we are in grave doubt that a jury would have found the rele-
vant aggravating factor beyond a reasonable doubt. Butler,
528 F.3d at 648. Grave doubt exists when the matter is so
evenly balanced that we are “in virtual equipoise” as to the
harmlessness of the error. Id.“[I]n conducting harmless error review of an Apprendi vio-
lation, we may consider the evidence presented at sentencing
proceedings.” Id. “Apprendi errors are harmless when we can
ascertain that a judge was presented with sufficient documents
at sentencing—including the original conviction documents
and any documents evidencing a modification, termination, or
revocation of probation—to enable a reviewing or sentencing
court to conclude that a jury would have found the relevant
fact beyond a reasonable doubt.” Id. at 647 n.14.
[5] In assessing whether a jury would have found a peti-
tioner’s probationary status beyond a reasonable doubt in But-
ler, we noted that the trial court read and considered the
probation report at sentencing but that the record excluded the
report. Id. at 651. We remanded, reasoning that “to determine
whether an Apprendi error was harmless, we must examine
the whole record, including the evidence presented by the
government at sentencing.” Id. (emphasis added). We now
hold explicitly what was implicit in Butler. We may consider
the probation report in evaluating an Apprendi error for harm-
lessness.
Estrella contends that our holding in United States v. Lock-
lin, 530 F.3d 908 (9th Cir. 2008), narrowed the scope of
harmless error review of Apprendi error to the consideration
of only the admissible evidence introduced at trial. We dis-
agree. Locklin involved a direct appeal from a conviction for
failure to appear in court pursuant to 18 U.S.C. § 3146. Lock-
lin, 530 F.3d at 909. Locklin raised an Apprendi violation on
appeal. Id. He argued that a violation of § 3146 was punish-
able for more than one year only if the underlying offense was
a felony. Id. at 912. However, Locklin received a sentence of
21504 ESTRELLA v. OLLISON
30 months when “neither the penalty for Locklin’s charged
underlying offense nor any findings necessary to determine
the underlying offense were submitted to the jury.” Id. For
these reasons, we found an Apprendi violation. Id. We also
found prejudice. “[T]here was no evidence adduced at trial
that would have supported a jury finding as to the charged
underlying offense.” Id. Nor was there “evidence in the whole
record that the government would have introduced at trial had
the issue been properly presented,” that the offense underly-
ing the § 3146 violation was a felony. Id. (internal quotation
marks omitted) (quoting United States v. Zepeda-Martinez,
470 F.3d 909, 913-14 (9th Cir. 2006)). Rather, there was but
one item in the entire record indicating that the underlying
offense was a felony and that was the superceding indictment
itself. In light of this deficit, we held there was nothing in the
record that would have allowed a juror to make findings “nec-
essary to authorize the District Court to sentence Locklin for
a term of imprisonment of more than one year.” Id. at 913.
Thus, Locklin does not overturn our long-standing rule that
we must examine the whole record for harmless error “to
assist us in determining what evidence [the parties] would
have introduced at trial had the issue been properly pre-
sented.” Zepeda-Martinez, 470 F.3d at 914 (alteration in orig-
inal) (internal quotation marks omitted) (quoting United
States v. Nordby, 225 F.3d 1053, 1061 n.6 (9th Cir. 2000),
overruled on other grounds by United States v. Buckland, 227
F.3d 1173, 1182 (9th Cir. 2002) (en banc)); see also United
States v. Hollis, 490 F.3d 1149, 1157 (9th Cir. 2007) (consid-
ering as part of the whole record uncontested information
from the probation department’s presentence report to deter-
mine the nature of a prior conviction), abrogated on other
grounds in DePierre v. United States, 13 S.Ct. 2225, 2231-32,
2227-28 (2011); United States v. Salazar-Lopez, 506 F.3d
748, 766 (9th Cir. 2007) (considering as part of whole record
uncontested factual allegations from presentence report to
determine nature and timing of a prior conviction); Zepeda-
Martinez, 470 F.3d at 913 (same as Salzar-Lopez).
ESTRELLA v. OLLISON 21505
[6] Having concluded that we may consider the probation
report in determining prejudice, we must turn to whether the
Apprendi error was harmless in this case. The focus at the dis-
trict court, and here, is whether a jury would have found
beyond a reasonable doubt that Estrella was on parole for a
violent offense when he committed the kidnapping.
[7] Estrella admitted to an August 2000 conviction for
aggravated assault. We do not have “grave doubt,” Butler,
528 F.3d at 648 that the jury would have found beyond a rea-
sonable doubt that the crime was violent. California Penal
Code § 245(a)(1) sets the penalty for aggravated assault,
which is also called assault with a deadly weapon. The statute
describes aggravated assault as an act in which “[a]ny person
. . . commits an assault upon the person of another with a
deadly weapon or instrument other than a firearm or by any
means of force likely to produce great bodily injury.” Cal.
Penal Code § 245(a)(1). The statutory references to a deadly
weapon and great bodily injury strongly suggest that the
crime involves violence. Cf. United States v. Grajeda, 581
F.3d 1186, 1187 (9th Cir. 2009) (concluding that a prior con-
viction for a violation of California Penal Code § 245(a)(1)
qualifies as a crime of violence within the meaning of the
United States Sentencing Guidelines § 2L1.2(b)(1)).
[8] The question then becomes whether Estrella was on
parole for his assault conviction at the time of the kidnapping.
The probation reports demonstrates that he was. We note that
while the criminal record notations in the probation report
contain abbreviations, they are neither cryptic nor unintelligi-
ble. The probation report lists Estrella’s criminal record
including the August 2000 conviction for assault pursuant to
California Penal Code § 245(a)(1). Estrella was sentenced to
one year in custody and three years of formal probation for
that assault. On October 25, 2001, probation was revoked, and
Estrella was sentenced to two years in custody. On July 11,
2002, Estrella was paroled to a “USINS hold.” His parole was
21506 ESTRELLA v. OLLISON
suspended on September 3, 2002, and revoked on November
13, 2002.
[9] The kidnapping started on the night of September 2,
2002, and continued into the early hours of September 3,
2002. Because Estrella was sentenced to two years in prison
in October 2001, he had to have been either in custody or on
parole on September 2, 2002, as he had not completed the
two-year prison term imposed less than a year before. In addi-
tion, the probation report states that Estrella was paroled to a
“USINS hold” on July 11, 2002, less than two months before
the kidnapping. While a jury may not know what a “USINS
hold” is, the probation report states both that (1) Estrella was
paroled before the kidnapping in July 2002 and (2) that parole
was revoked after the kidnapping in November 2002. The
probation report leaves little room for any conclusion but that
Estrella was on parole from his assault conviction at the time
of the kidnapping. Accordingly, we do not have grave doubt
that the jury would have found beyond a reasonable doubt that
Estrella committed the kidnapping while on parole for assault.
Butler, 528 F.3d at 648.
IV. Conclusion
[10] The trial court violated Estrella’s Sixth Amendment
rights when it imposed an upper term sentence for kidnapping
based on facts not proven beyond a reasonable doubt to a jury.
The state court’s determination otherwise was contrary to
clearly established Supreme Court law. Because the probation
report demonstrates that a jury would have found that Estrella
was on parole for a violent offense when he committed the
kidnapping, we find the error harmless. We AFFIRM the dis-
trict court’s denial of Estrella’s habeas petition on the merits.
AFFIRMED.