FILED
NOT FOR PUBLICATION MAY 30 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID RYAN UNRUH, No. 10-56845
Petitioner - Appellant, D.C. No. 2:08-cv-00974-GW-SS
v.
MEMORANDUM*
RICK HALL, Acting Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted January 6, 2014
Pasadena, California
Before: KOZINSKI, Chief Judge, REINHARDT and CLIFTON, Circuit
Judges.
There’s no dispute that Unruh suffered a constitutional violation when he
was given an enhanced sentence based on aggravating facts found by a judge, not a
jury. See generally Cunningham v. California, 549 U.S. 270 (2007). Our only
task, therefore, is to determine whether this constitutional error was harmless,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
page 2
applying the standard set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993). See
Butler v. Curry, 528 F.3d 624, 648 (9th Cir. 2008).
We are in grave doubt that the jury would necessarily have found that
Unruh’s crime “disclos[ed] a high degree of cruelty, viciousness, or callousness.”
Cal. R. Ct. 4.421(a)(1); see also O’Neal v. McAninch, 513 U.S. 432, 436 (1995).
Given that it could not consider facts that are elements of the crime of child
endangerment, see Cal. R. Ct. 4.420(d), nor Unruh’s use of a firearm, see Cal.
Penal Code § 1170(b), a jury could reasonably conclude that Unruh’s conduct
wasn’t especially vicious or callous. Unruh is a Marine Corps veteran whose crime
resulted from a short-lived emotional outburst, and there is no evidence that he
planned or desired to harm the victim, T., prior to the altercation. The entire event
lasted only a few minutes, T. suffered no physical harm and Unruh expressed
remorse immediately after. Given these facts, a jury could find that Unruh’s
conduct was a momentary (albeit dangerous) act of desperation, not the result of a
cruel, vicious or callous disposition. See, e.g., People v. Esquibel, 166 Cal. App.
4th 539, 558 (2008).
A jury could also reasonably find that Unruh doesn’t pose a “serious danger
to society.” Cal. R. Ct. 4.421(b)(1). His violent outburst momentarily put two
page 3
people in great danger, but he had no other criminal history and Sterling testified
that he’d never before been violent towards her or T.
Nor was T. necessarily a “particularly vulnerable” victim. Cal. R. Ct.
4.421(a)(3). While T. was a minor, this characteristic is inherent in the crime of
willful child endangerment. See Cal. Penal Code § 273a(a). That he was attacked
in his home may be, but is not necessarily, a factor that makes a victim particularly
vulnerable. Given all the circumstances in this case, we “cannot say, with fair
assurance, after pondering all that happened,” see Merolillo v. Yates, 663 F.3d 444,
454 (9th Cir. 2011), that the jury would have found beyond a reasonable doubt that
T. was vulnerable to a “special or unusual degree, to an extent greater than in other
cases.” People v. Loudermilk, 195 Cal. App. 3d 996, 1007 (1987) (quoting People
v. Smith, 94 Cal. App. 3d 433, 436 (1979)); see also Butler, 528 F.3d at 649.
We therefore have grave doubt that a jury would have found any of these
aggravating factors beyond a reasonable doubt and cannot say that the
constitutional error in Unruh’s sentencing was harmless. See O’Neal v.
McAninch, 513 U.S. 432, 436 (1995); see also Butler, 528 F.3d at 648.
page 4
We REVERSE the district court’s judgment, GRANT Unruh’s petition for
a writ of habeas corpus and REMAND for proceedings consistent with this
disposition.
FILED
Unruh v. Hall, No. 10-56845 MAY 30 2014
MOLLY C. DWYER, CLERK
CLIFTON, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I respectfully dissent from the majority’s disposition of this case, because I
agree with the district court that the constitutional violation that occurred was
harmless under the standard of Brecht v. Abrahamson, 507 U.S. 619 (1993).
In my view, Unruh has failed to establish that a jury would not have found,
beyond a reasonable doubt, that Unruh’s acts of violence, in particular his
treatment of T., a 13-year-old boy, involved a high degree of viciousness and
callousness. Unruh shot T.’s mother in the face. After T. discovered his mother
bleeding and lying on the floor, Unruh grabbed a larger gun and held it to T’s head,
holding T. hostage for two minutes and causing him to believe he was going to die.
I am not in grave doubt as to what conclusion the jury would have reached.
It seems to me more likely than not that a jury would have found, as did the trial
court, that this sequence of events revealed a high degree of viciousness and
callousness. The key facts that made Unruh’s crime a highly vicious and callous
one were beyond those necessary to establish the essential elements of the counts
of violence against T. or of the associated use of a firearm enhancement imposed
on each count. See Cal. Penal Code § 1170(b) (2005); Cal. R. Ct. 4.420(d) (2005).
Having concluded that one of the aggravating circumstances, the high degree
of viciousness and callousness involved, would have been found by a jury, it is
unnecessary to consider the other potential aggravating circumstances. The upper
term sentence may be validly imposed based on a single aggravating circumstance.
See Butler v. Curry, 528 F.3d 624, 642–43 (9th Cir. 2008). As a result, the
constitutional violation in this case was harmless. I would affirm.
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