FILED
NOT FOR PUBLICATION FEB 07 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAMES JOSEPH FLORES, No. 09-55970
Petitioner - Appellant, D.C. No. 2:02-cv-03613-MMM-
VBK
v.
CONNIE GIPSON, Warden, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted December 6, 2012
Pasadena, California
Before: PREGERSON, NOONAN, and PAEZ, Circuit Judges.
Petitioner James Joseph Flores (“Flores”) appeals the district court’s denial
of his petition for habeas relief. On November 16, 1998, after a jury trial in the
California superior court, Flores was convicted of: simple kidnapping (Cal. Penal
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Code § 207 1), forcible oral copulation (§ 288a(c)), forcible sodomy (§ 286(c)),
corporal injury to a spouse (§ 273.5(a)), and making terrorist threats (§ 422).
Flores’s sentence was enhanced from an eight-year term to a twenty-five-year-to-
life term pursuant to Cal. Penal Code § 667.61(d)(2), because the jury found that
Flores “kidnapped the victim and the movement of the victim substantially
increased the risk of harm to the victim over and above that level necessarily
inherent in the underlying offense” of forcible sodomy. The jury found the same
with respect to forcible oral copulation. The § 207 simple kidnapping conviction
was reversed on direct appeal, but the validity of the § 667.61(d)(2) “aggravated
kidnapping circumstance” of the § 667.61 sentence enhancement was not raised on
direct appeal and, thus, never reversed. This court has jurisdiction pursuant to 28
U.S.C. §§ 1291 and 2253, and we reverse the denial of habeas relief and remand
with directions to grant.
Under Jackson v. Virginia, 443 U.S. 307, 318-19 (1979), and In re Winship,
397 U.S. 358, 364 (1970), the Due Process Clause of the Fourteenth Amendment
requires that there be sufficient evidence of each element of a crime to convict.
Here, appellate counsel did not raise the meritorious insufficiency of the evidence
1
All statutory references are to the version of the California Penal Code
operable when Flores was charged and convicted in 1998.
2
claim on direct appeal. Although the sufficiency claim was not exhausted in state
court, In re Dixon, 41 Cal.2d 756, 759 (Cal. 1953), Flores has demonstrated cause
and prejudice to overcome this procedural default based on the ineffective
assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984); see
Coleman v. Thomspon, 501 U.S. 668 (1984). Flores’s counsel failed to raise the
sufficiency claim even after the state court of appeal reversed the § 207 conviction.
Because the state courts never offered a “reasoned decision” on the issue whether
there was sufficient evidence to support the § 667.61 enhancement, we “perform an
independent review of the record to ascertain whether the state court decision was
objectively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003)
(internal quotation marks and citation omitted).
The sufficient evidence principle applies to § 667.61(d)(2) enhancements
because the statute treats the enhancements as offenses, the facts of which must be
“alleged in the accusatory pleading and either admitted by the defendant in open
court or found to be true by the trier of fact.” Section 667.61(i); cf. People v.
Mancebo, 41 P.3d 556, 567 (Cal. 2002) (noting that § 667.61’s “pleading and
proof requirements apply to all of the qualifying circumstances enumerated in
subdivisions (d) and (e).”)
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There is insufficient evidence under any theory of kidnapping to conclude
that Flores “kidnapped” the victim within the meaning of the § 667.61(d)(2)
enhancement presented to the jury. The prosecution charged and tried Flores for
kidnapping under § 209(b) “aggravated kidnapping.” The jury acquitted Flores of
this charge. The jury convicted Flores of the lesser-included § 207 “simple
kidnapping” and the state appellate court reversed this conviction as a matter of
law because the asportation standard was not met. Even assuming, as the
Government argues, that the § 667.61(d)(2) enhancement incorporates the § 209(b)
asportation standard, Flores could not have “kidnapped” the victim so as to satisfy
the elements of § 667.61(d)(2) under this theory while simultaneously being
acquitted of the § 209(b) kidnapping. By acquitting Flores of § 209(b) kidnapping,
the jury demonstrated that it did not find sufficient “factual allegations to be true”
to sustain a conviction pursuant to § 209(b) or a sentence enhancement pursuant to
§ 667.61. People v. Anderson, 211 P.3d 584, 590 (Cal. 2009).
Therefore, viewing the evidence in the light most favorable to the
prosecution, no rational trier of fact could find “the essential elements of the [§
667.61(d)(2) enhancement] beyond a reasonable doubt.” The imposition of the
enhancement was “objectively unreasonable,” Himes, 336 F.3d at 853, because it
4
violated Flores’s due process rights. Jackson, 443 U.S. at 319; In re Winship, 397
U.S. at 364.
For the above reasons we REVERSE the district court’s denial of habeas
relief. On remand, the district court is instructed to GRANT a conditional writ of
habeas corpus directing the state to release Flores or resentence him within a
reasonable period of time without reference to the § 667.61 enhancement.
REVERSED AND REMANDED
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