Jose Estrella v. Derrick Ollison

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.