FILED
NOT FOR PUBLICATION JUL 18 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PHILLIP J. ROSENBLUM, No. 09-55349
Petitioner - Appellant, D.C. No. 5:08-cv-00261-JVS-E
v.
MEMORANDUM *
JAMES A. YATES, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted July 12, 2012 **
Pasadena, California
Before: GILMAN,*** TALLMAN, and N.R. SMITH, Circuit Judges.
California state prisoner Phillip J. Rosenblum appeals the district court’s
denial of his 28 U.S.C. § 2254 habeas corpus petition. He challenges his upper
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Ronald Lee Gilman, Senior Circuit Judge for the Sixth
Circuit, sitting by designation.
term sentence imposed by the state trial court. We have jurisdiction pursuant to 28
U.S.C. §§ 1291 and 2253, and we affirm.
In Cunningham v. California, the Supreme Court held that California’s
sentencing scheme (at the time of Rosenblum’s conviction) was unconstitutional,
because it violated the Sixth Amendment right to a jury trial. 549 U.S. 270,
288–89 (2007). However, Cunningham did not invalidate upper term sentences
imposed as a result of prior convictions. See id. (“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.”
(internal quotation marks omitted)).
Under California law, “the presence of one aggravating circumstance renders
it lawful for the trial court to impose an upper term sentence.” People v. Black,
161 P.3d 1130, 1140 (Cal. 2007). Thus, for purposes of habeas review, “if at least
one of the aggravating factors on which the judge relied in sentencing [Rosenblum]
was established in a manner consistent with the Sixth Amendment, [Rosenblum’s]
sentence does not violate the Constitution.” Butler v. Curry, 528 F.3d 624, 643
(9th Cir. 2008).
At the time of Rosenblum’s conviction, California law authorized the
imposition of an upper term sentence if the trial court found that “[t]he defendant’s
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prior convictions as an adult or sustained petitions in juvenile delinquency
proceedings are numerous or of increasing seriousness.” Cal. Rule of Court
4.421(b)(2). Three or more prior convictions are “numerous” for purposes of
California Rules of Court Rule 4.421(b)(2). See, e.g., Black, 161 P.3d at 1142
(concluding that three misdemeanor convictions and two felony convictions were
numerous); People v. Searle, 261 Cal. Rptr. 898, 902 (Ct. App. 1989) (concluding
that three prior convictions were numerous under the predecessor to Rule
4.421(b)(2)).
Here, Rosenblum had five prior convictions. The documents of conviction
therefore “directly reflected” the fact that Rosenblum had numerous prior
convictions pursuant to California law. See Butler, 528 F.3d at 645. Furthermore,
the state court’s determination that Rosenblum had numerous prior convictions
was not a “qualitative evaluation[] of the nature or seriousness of past crimes,”
because that determination was made “solely by looking to the documents of
conviction” and counting the number of his prior convictions. See id. at 644.
Thus, the state court did not violate the Sixth Amendment when it relied on
Rosenblum’s numerous prior convictions to impose an upper term sentence.
AFFIRMED.
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