FILED
NOT FOR PUBLICATION DEC 24 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZENTORY T. BEAN, No. 10-16253
Petitioner – Appellant, DC No. 07 cv-1764 MJL
v.
MEMORANDUM*
MATTHEW CATE, Secretary of
California Department of Corrections and
Rehabilitation
Respondent – Appellee.
Appeal from the United States District Court
for the Eastern District of California
M. James Lorenz, Senior District Judge, Presiding
Argued and Submitted November 4, 2013
San Francisco, California
Before: TASHIMA, FLETCHER, and NGUYEN, Circuit Judges
Zentory T. Bean (“Bean”) appeals from the judgment of the district court
denying his petition for writ of habeas corpus. Bean contends that the district court
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
erred in concluding that his sentence, which included the upper term on a
sentencing enhancement, was imposed in a manner consistent with the Sixth
Amendment. We have jurisdiction under 28 U.S.C. § 2253. Reviewing the district
court’s denial of the petition de novo, see Pinholster v. Ayers, 590 F.3d 651, 662
(9th Cir. 2009), we affirm.
1. Under California’s Determinate Sentencing Law, a judge may not
impose the upper term sentence for an offense “unless there are circumstances in
aggravation . . . of the crime.” Cal. Penal Code § 1170. Further, the Sixth
Amendment requires that any aggravating circumstance, other than a prior
conviction, that is relied upon to impose the upper term sentence must be admitted
by the defendant or found by a jury beyond a reasonable doubt. See Cunningham
v. California, 549 U.S. 270, 274–75 (2007). Bean contends that his sentence
violates the Sixth Amendment because he received the upper term based on an
aggravating fact, other than a prior conviction, that was neither admitted by him
nor found by a jury beyond a reasonable doubt.
Bean entered a plea of no contest to one count of being a prohibited person
in possession of a firearm, one count of voluntary manslaughter, and a sentencing
enhancement for use of a firearm during a felony. The trial judge sentenced Bean
to a fixed term of 13 years, which included the upper term sentence on the firearm
2
enhancement. In imposing Bean’s sentence, the judge relied on the aggravating
circumstance of planning, which was neither admitted by Bean nor found by a jury
beyond a reasonable doubt. As such, Bean’s sentence violated the Sixth
Amendment. See Cunningham, 549 U.S. at 294.
2. The dissent contends that Bean’s sentence did not violate the Sixth
Amendment because he was eligible for the upper term based on the fact of his
prior convictions, even though the trial judge did not actually rely on that
aggravating circumstance in imposing his sentence. Dissent at 1. Contrary to our
habeas jurisprudence that we should examine the state court judgment to determine
whether the judgment that was actually entered was contrary to the Constitution,
the dissent ignores the judgment that was entered by the state court. Instead, the
dissent proceeds directly to an abstract inquiry of whether the record would
support a sentence that complies with Cunningham. We disagree that this is the
proper inquiry in determining whether there was a Sixth Amendment violation.
A sentence complies with the Sixth Amendment only “if at least one of the
aggravating factors on which the judge relied in sentencing [the defendant] was
established in a manner consistent with the Sixth Amendment.” Butler v. Curry,
528 F.3d 624, 643 (9th Cir. 2008) (emphasis added). Corollary rule is that a
sentence violates the Sixth Amendment when, as here, the maximum term “was
3
raised based on facts, other than a prior conviction, that were not admitted or
proved to a jury beyond a reasonable doubt.” Id. at 648. Accordingly, facts that
were not relied upon by the sentencing judge – such as, in this case, Bean’s prior
convictions – are irrelevant in determining whether the sentence imposed complies
with the Sixth Amendment. See id. (examining only those aggravating factors
actually relied upon by the sentencing judge in determining whether the
petitioner’s sentence violated the Sixth Amendment).1 Therefore, Bean’s sentence
was not made constitutional merely because there existed an aggravating
circumstance, not relied upon by the sentencing judge, that could have rendered
him eligible for the upper term.2
1
The California Supreme Court has reached the same conclusion. See
People v. Black, 161 P.3d 1130, 1141-42 (Cal. 2007). In its extensive discussion
of Black, see Dissent at 3-5, the dissent fails to mention that, in Black, the sentence
was held to be constitutional because the trial court actually relied on at least one
circumstance that was established in a manner consistent with the Sixth
Amendment. See id.
2
The dissent also insists that “whether a defendant is eligible for the
upper term based on a factor not explicitly cited by the sentencing court is a
question of California law and not an appropriate ground to find constitutional
error.” Dissent at 3. But that is not the question before us. The question we
decide is whether the upper term sentence imposed violated the U.S. Constitution
because no aggravating factor was established in accordance with the Sixth
Amendment. That question, beyond peradventure, is a question of federal
constitutional law under Cunningham, which we may properly address on habeas
review. See Butler, 528 F.3d at 643.
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3. Sentencing errors are, however, subject to a harmless error analysis.
Butler, 528 F.3d at 648. Accordingly, Bean is entitled to relief only if the “error
had a substantial and injurious effect on [his] sentence.” Id.
Under California law, circumstances that may justify the imposition of an
upper term include that “[t]he prisoner has committed multiple crimes which
indicate a significant pattern of increasingly serious criminal conduct.” CAL. CODE
REGS. tit. 15, § 2408(c). In imposing the upper term based on increasingly serious
criminal conduct, the sentencing judge may consider the crime for which the
petitioner is being sentenced. People v. Clark, 15 Cal. Rptr. 2d 709 (Ct. App.
1992). At the time of his sentencing, Bean had two prior convictions: the first for
misdemeanor assault and the second for driving without a valid license or
insurance. Petitioner’s instant crime of manslaughter is unquestionably more
serious than these offenses. Thus, Petitioner has committed crimes of increasing
seriousness, which would permit the imposition of the upper term sentence under
California law. CAL. CODE REGS. tit. 15, § 2408(c); Clark, 15 Cal. Rptr. 2d 709.
Under Cunningham, these prior convictions need not have been admitted by Bean
nor found by a jury beyond a reasonable doubt. See 549 U.S. at 274–75. Because
the sentencing judge could have relied on Bean’s increasingly serious pattern of
criminal conduct to impose the upper term sentence on the firearm enhancement in
5
a manner consistent with the Sixth Amendment, the error was harmless.
• ! •
The judgment of the district court denying Bean’s petition for writ of habeas
corpus is
AFFIRMED.
6
FILED
Bean v. Cate, 10-16253 DEC 24 2013
MOLLY C. DWYER, CLERK
NGUYEN, Circuit Judge, concurring in the result and dissenting in part:U.S. COURT OF APPEALS
The question is whether Bean’s sentence “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established Federal
law” or a “decision that was based on an unreasonable determination of the facts in
light of the evidence presented.” See 28 U.S.C. § 2254(d). Simply put, the answer
is “No.” Therefore, I concur in the result but dissent from the majority’s holding
that Bean’s sentence violated the Sixth Amendment.
I.
“Under California’s determinate sentencing system, the existence of a single
aggravating circumstance is legally sufficient to make the defendant eligible for the
upper term.” People v. Black, 161 P.3d 1130, 1138-39 (Cal. 2007) (emphasis
added) (citation omitted). The majority is correct that Bean was not eligible for the
upper term based on the aggravating circumstance of “planning.” Maj. Mem.
Dispo. at 3. Nevertheless, Bean was still eligible for the upper term sentence on
account of his increasingly serious convictions that were reflected in the record
before the sentencing court, including the sentencing report. See People v. Clark,
15 Cal. Rptr. 2d 709, 709 (Ct. App. 1992) (“The offense for which a defendant is
being sentenced may be considered in determining that his or her convictions are
1
of increasing seriousness.” (citations omitted)); see also Cal. Ct. R. 4.421(b)(2).
Because Bean was eligible for the upper term sentence based on a
constitutionally proper aggravating factor, there was no constitutional error in his
sentence. This should end the inquiry. See Cunningham v. California, 549 U.S.
270, 274-75 (2007) (“[T]he Federal Constitution’s jury-trial guarantee proscribes a
sentencing scheme that allows a judge to impose a sentence above the statutory
maximum based on a fact, other than a prior conviction, not found by a jury or
admitted by the defendant.” (emphasis added) (citations omitted)).
II.
The majority instead finds a constitutional error because it mistakenly
assumes that we are limited only to the aggravating circumstance specifically cited
by the state sentencing court—here, “planning”—when it imposed Bean’s
sentence. Thus, the majority’s reasoning goes, because the sentencing court did
not explicitly rely on Bean’s record of increasingly serious convictions, we may
not answer “an abstract inquiry of whether the record would support a sentence
that complies with Cunningham.” Maj. Mem. Dispo. at 3. The majority’s analysis
is flawed for two reasons. First, it is contrary to California law, which permits a
sentencing court to rely on aggravating facts not found by a jury in imposing the
upper term sentence, so long as the record demonstrates a defendant’s eligibility
2
for the upper term sentence. Second, even assuming Bean’s sentence runs afoul of
state law, that question of state law is not cognizable on habeas.
A.
As the Black Court held, “if one aggravating circumstance has been
established in accordance with the constitutional requirements set forth in [Blakely
v. Washington, 542 U.S. 296 (2004)], the defendant is not ‘legally entitled’ to the
middle term sentence, and the upper term sentence is the ‘statutory maximum.’”
161 P.3d at 1139 (emphasis added). The question, then, is what is required—under
California law—to “establish” an aggravating circumstance? The majority finds
that, even when the aggravating circumstance is based on prior convictions, it must
be explicitly referenced and relied upon by the state sentencing court. Not so.
In Black, the defendant was eligible for the upper term sentence based on
two aggravating circumstances, each of which “independently satisf[ied] Sixth
Amendment requirements and render[ed] him eligible for the upper term.
Therefore, he was not legally entitled to the middle term, and his Sixth
Amendment right to jury trial was not violated by imposition of the upper term
sentence . . . .” Id. at 1144.
One circumstance, the use of force, was explicitly discussed by the
sentencing court. Id. at 1141. But the other, Black’s criminal history, was not.
3
Instead, his prior convictions were reflected in the sentencing report and the district
attorney’s brief. Id. There is no indication that the sentencing court had explicitly
cited Rule 4.421(b)(2) or made a finding that Black’s prior convictions were
“numerous or of increasing seriousness.” See Cal. Ct. R. 4.421(b)(2) (a sentencing
court can impose an upper term sentence if the defendant’s prior convictions are
“numerous or of increasing seriousness”). Moreover, the Black Court never
concluded that the sentencing court was required to make such a finding.1
Instead, the Court found that “the statutory maximum sentence . . . was the
upper term, because at least one aggravating circumstance (indeed, in this case,
two) was established by means that satisfy the requirements of the Sixth
Amendment.” Id. at 1141 (emphasis added); see also People v. Velasquez, 62 Cal.
Rptr. 3d 164, 172 (Ct. App. 2007) (“[I]n selecting the upper terms the trial court
did not articulate on the record its reasons for doing so . . . . however, it is apparent
that two of the aggravating factors present in this case—that [the defendant] had
served a prior prison term and that his prior adult convictions were
numerous—directly relate to [the defendant]’s recidivism . . . . Accordingly, the
trial court could properly rely on those two aggravating factors to impose an upper
1
More importantly, there is no United States Supreme Court case or other
federal law that would require as much.
4
term . . . .” (citations omitted)).
If Black’s eligibility for the upper term sentence was independently
established by the record of his prior convictions (despite the court’s failure to
explicitly rely on those convictions or cite to Rule 4.421(b)(2)), then Bean’s
eligibility for the upper term likewise was established. Black’s upper term
sentence did not violate state law or Cunningham. The same goes for Bean.
B.
Once a defendant is eligible for the upper term (by virtue of his prior
convictions or otherwise), California law permits a sentencing court to “rely upon
any number of aggravating circumstances in exercising its discretion to select the
appropriate term by balancing aggravating and mitigating circumstances,
regardless of whether the facts underlying those circumstances have been found to
be true by a jury.” Black, 161 P.3d at 1138 (emphasis added); see also People v.
Cardenas, 66 Cal. Rptr. 3d 821, 829 (Ct. App. 2007) (stating that the Black Court
“held the presence of a prior conviction which requires no jury finding makes a
defendant ‘eligible’ for an upper term sentence thus justifying the court’s use of
other aggravating factors when deciding whether to impose a high term sentence”
(citation omitted)).
Because Bean was eligible for the upper term sentence, the sentencing court
5
was free to exercise its discretion and impose the upper term based on the
aggravating circumstance of “planning”—“regardless of whether the facts
underlying th[at] circumstance[] ha[d] been found to be true by a jury.” Black, 161
P.3d at 1138. Therefore, Bean’s sentence violated neither California law nor the
Sixth Amendment.2
C.
In any event, even if Bean’s sentence was imposed in violation of state law,
what “clearly established” federal law did it violate? See 28 U.S.C. § 2254(d).
Neither Cunningham nor Apprendi v. New Jersey, 530 U.S. 466 (2000), nor any
other Supreme Court decision requires the state sentencing court to explicitly rely
on the prior convictions that render a defendant eligible for the upper term. The
Supreme Court in Cunningham held that California’s Determinate Sentencing Law
“violates Apprendi’s bright-line rule: Except for a prior conviction, ‘any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.’” 549 U.S. at 288-
2
The majority suggests that by examining Bean’s prior convictions, I am
“ignor[ing] the judgment that was entered by the state court.” On the contrary, I
agree that the question is whether “the judgment that was actually entered” was
“contrary to the Constitution.” Maj. Mem. Dispo. at 3. The answer, though,
requires us to examine whether Bean was eligible for the upper term sentence
under California law because, if so, that was the “statutory maximum” for purposes
of Cunningham.
6
89 (emphasis added) (citation omitted).3 The Cunningham Court did not deal with
the question of whether a sentencing court must explicitly rely on the aggravating
circumstance of a prior conviction in imposing the upper term sentence. That
question is controlled by California state law.
Conclusion
California law dictates what is required to “establish” an aggravating factor
(and a defendant’s “eligibility” for the upper term), so long as the “means . . .
satisfy the requirements of the Sixth Amendment.” See Black, 161 P.3d at 1141.
The “means” in Bean’s case—increasingly serious convictions—satisfy the
requirements of the Sixth Amendment. Thus, any purported error in the imposition
of his sentence is a matter of state law and is not cognizable on a § 2254 petition.
Accordingly, although I concur in the result, I respectfully disagree with the
majority’s analysis.
3
The majority cites Butler v. Curry, 528 F.3d 624 (9th Cir. 2008), which is
inapposite. In Butler, the sentencing court had explicitly relied on two aggravating
factors. We held that the trial court could have imposed the upper term sentence so
long as one aggravating factor was validly established. “That the judge might not
have done so in the absence of an additional factor does not implicate the Sixth
Amendment, as that consideration concerns only the imposition of a sentence
within an authorized statutory range.” Id. at 649. We did not analyze what is
necessary under California law to establish a defendant’s increasingly serious prior
convictions or whether a court explicitly must rely on that aggravating factor to
impose the upper term sentence.
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