Topper v. Evans, No. 3:2007cv04543 - Document 27 (N.D. Cal. 2010)
Court Description: ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS AND CERTIFICATE OF APPEALABILTY. Signed by Judge JEFFREY S. WHITE on 8/30/10. (jjoS, COURT STAFF) (Filed on 8/30/2010)
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Topper v. Evans Doc. 27 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 JAMES E. TOPPER Petitioner, 10 11 12 13 vs. M.S. EVANS, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) No. C 07-4543 JSW (PR) ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS AND CERTIFICATE OF APPEALABILITY 14 15 INTRODUCTION 16 Petitioner, James Edward Topper, is a state prisoner currently incarcerated 17 at Pleasant Valley State Prison in Ione, California. Petitioner filed this pro se 18 petition for a writ of habeas corpus under 28 U.S.C. § 2254, alleging violations 19 of his constitutional rights because insufficient evidence supports his conviction 20 on certain counts and imposition of upper-term sentences on certain counts due 21 to his prior convictions violates his right to a jury trial. 22 This Court found that the petition, when liberally construed, stated a 23 cognizable federal claim and ordered Respondent to show cause why a writ of 24 habeas corpus should not be granted. Respondent filed an answer. Petitioner 25 filed an amended petition, and the court ordered Respondent to address the issues 26 raised in Petitioner’s amended petition. Respondent filed a supplemental answer. 27 This pro se habeas petition is now before the Court for consideration on the 28 Dockets.Justia.com 1 merits. For the reasons discussed below, the petition is denied. PROCEDURAL BACKGROUND 2 3 On February 7, 2005, Petitioner was convicted by a jury of multiple sex 4 offenses. On May 11, 2005, Petitioner was sentenced to a total indeterminate 5 prison term of 70 years to life pursuant to California’s “One Strike” law. Cal. 6 Penal Code § 667.61. The California Court of Appeal affirmed Petitioner’s 7 conviction on June 26, 2006, and the California Supreme Court denied review on 8 September 13, 2006. Petitioner filed the instant petition for habeas corpus on 9 August 31, 2007. 10 FACTUAL BACKGROUND 11 The facts underlying the charged offenses, as found by the California 12 13 14 15 16 17 18 19 20 21 Court of Appeal, are summarized in relevant part, as follows: S. and J.'s father died of a heart attack in April of 1998, when the family was living in Illinois. S. was 12. J. was 14. The girls' mother, Terri, did not react well to her husband's death. She was “absolutely devastated.” She moved the family to Valdosta, Georgia, to be closer to her family. She would lock herself in her room and spend a lot of time “chatting” on the Internet. According to S., Terri “seemed really kind of to go off the deep end.” Within two weeks Terri met defendant on the Internet. Defendant called himself “Jet 767” and claimed he was a pilot for Delta Airlines. He also claimed to own a plane, houses in West Virginia and Hawaii, and a red Jaguar. He passed himself off as a widower, but Terri was later to learn that defendant's wife was alive and living in Colorado. Terri communicated regularly with defendant and shared personal information. She told defendant about her husband's recent death and her two young daughters. She also told defendant that as a result of her husband's death she was receiving regular Social Security payments. 22 23 24 25 26 In October 1998, Terri drove with her son Shawn to Fairmont, West Virginia, and met defendant at a McDonald's. Terri and defendant were married that weekend. Terri and Shawn returned to Valdosta, while defendant stayed in Fairmont. After Thanksgiving, Shawn and 12-year-old S. were sent to Fairmont to live with defendant. Terri and J. stayed behind in Valdosta. S. did not like living with defendant without her mother. Defendant was “a complete stranger to me.” Within a couple of weeks after 27 28 2 1 2 3 4 5 6 7 8 9 10 11 her arrival, defendant began to molest her. Once, she fell asleep and awoke to find defendant's hands inside her shirt. On another occasion S. swallowed a button, and defendant made her lift up her shirt so he could “feel around on my chest to check to see if he could feel the button.” On yet another occasion S. awoke to find defendant touching her on her chest and between her legs. S. was scared and didn't understand what was going on. After Christmas J. was sent to join her sister and defendant in Fairmont. Terri stayed behind in Valdosta with defendant's daughter, Amanda. Defendant stopped molesting S., who was now 13, but started molesting 15-year-old J. One night when it was snowing defendant asked J. if she wanted to cuddle on the couch, telling her it would be warmer. Defendant began touching J. in the abdomen and the vaginal area, then penetrated her vagina with his hand. Then defendant penetrated J.'s vagina with his penis. J. pretended to be asleep, hoping that defendant would stop. Terri moved to Fairmont in February 1999 and rejoined the family. Defendant sexually assaulted J. between 10 and 20 times over the next several months. The assaults included intercourse and oral copulation. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 On one occasion, J. told defendant she did not like what he was doing to her. Defendant became angry, grabbed her hand, placed it on his penis and pushed her head toward her hand. J. understood that defendant wanted her to orally copulate him. She did, but did not want to do so. Defendant told J. not to tell Terri about the sexual assaults. He threatened to send her to a reform school, which would jeopardize J.'s hopes to join the military. Defendant's reform school threat weighed on J.'s mind and affected her judgment and her “thoughts about things [defendant] was doing to” her. As J. got to know defendant while living with him in Fairmont, she concluded that he “learned [the] habits and weaknesses” of Terri, J., S., and Shawn. He “was very quick to judge and had a quick temper.” Meanwhile Terri began to have misgivings about defendant. “I came to realize that he was not the person that he led me to believe he was. If you didn't do what he wanted you to do, you suffered. He used threats, manipulation and [was] controlling.” Defendant called S. and J. names and belittled them, and forced them to stand holding a dime against a wall with their nose. He treated the two girls “like they were dogs.” Terri tried to get defendant to stop the mistreatment, but to no avail: defendant said “when he spoke we had to listen and if we didn't we wouldn't like him very much.” He made Terri open a bank account for the Social Security payments she received for her husband's death, and defendant took control of the account. 26 In June 1999, the family moved to Parkersburg, West Virginia. 27 28 3 1 2 3 4 Defendant continued to sexually molest S. and J. Defendant told S. not to tell anyone, or she would be sent away. That scared S. because “I had never been away from my family before except for staying at people's houses.... I had already lost my dad. I didn't want to lose the rest of my family as well.” J. found that resisting defendant was not useful-defendant would become angry and mean. “It was always easier to just go along than put up a fight and argue.” 5 6 7 8 9 10 11 12 13 14 15 16 In August, J. told Terri about the molestations. Terri confronted defendant, who became angry and denied molesting J. Defendant told Terri he would take J. for a ride and make a tape recording of her denying any sexual assault. Defendant ordered J. to pack all her clothes in garbage bags, leading her to believe she was being taken away “for good,” and took her on a five-hour drive. During the drive, defendant asked J. what she was trying to accomplish. He accused her of lying and told her she would be “locked up” in a reform school and be unable to join the military. She begged him “not to take me,” and defendant asked what was in it for him. J. took this as a “signal to me ... that he wanted ... sexual favors in exchange for ... me to go home.” She was crying, and was afraid of being put in a mental institution and excluded from military service. She orally copulated defendant, again without wanting to. Back at the house, defendant played a tape recording for Terri. She heard J. begging defendant not to send her away, and promising to do anything for him-including oral copulation and having sex on the hood of the car. J. later told Terri that she had lied about defendant's molesting her. But defendant continued to sexually molest J. 17 18 19 20 21 In January 2000, the family moved to Scottsdale, Arizona. Defendant continued to molest J. Defendant continued to molest S., escalating to intercourse and oral copulation. Defendant became enraged when S. kissed the family puppy. He pulled her by the hair and threw her into a wall. He slammed Shawn to the floor when he tried to intervene. Defendant also tried to sever the relationship between S. and Terri. Defendant and Terri had a fight, which culminated in defendant telling Terri that “if you fuck with me, there's not a safe place on earth for you.” 22 23 24 25 26 In January 2001, the family moved to Mesa, Arizona. In April, J. joined the Army. Defendant continued to rape S. and force her to engage in oral copulation. He would threaten to send her away if she told anyone. S. was scared and “whether I fought or didn't fight, he was going to get his way. So it was just easier for me to just let it happen and get it over with.” S. knew that defendant had sent Shawn away to a reform school in Mexico because he refused to paint the garage door. 27 28 4 1 2 In October 2001, the family moved to Logandale, Nevada. J. was still in the Army. Defendant continued to rape S. and force her to orally copulate him. He also forced her to engage in anal sex. When she tried to pull away, defendant forcibly pulled her back. 3 The Charged Offenses 4 5 6 7 8 In April 2002, defendant came under the criminal jurisdiction of California when the family moved to Livermore. J. had rejoined the family after a medical discharge from the Army. S. was 16 and a freshman in high school. Based on conduct occurring between April 1, 2002, and February 24, 2003, defendant was convicted of 14 felony sex offenses-12 involving S. (Counts 1-6 and 9-14) and two involving J. (Counts 7 and 8). We summarize the facts underlying those convictions. 9 S. 10 11 12 13 14 15 S. testified that defendant exercised complete control over her. He would tell her “where to go, what to do, what to say at times. I didn't have control over anything I wanted.” S. had to come home for lunch during the school day, and defendant took her to the premises of his sign business when the school day ended. S. could not go out on weekends, talk on the phone, or have friends over. She rarely used the computer. If she disobeyed defendant, he would become angry and “lash out” at her. S. was always afraid defendant would hurt her or send her away, or hurt Terri-defendant had thrown a lit cigarette in Terri's face while the family lived in Parkersburg. 16 17 18 19 20 21 22 23 Count 3-forcible oral copulation (§ 288a, subd. (c)(2)) Count 4-forcible rape (§ 261, subd. (a)(2))\ Before she left for high school in the mornings, S. would usually take defendant his coffee. He occasionally would ask her for a “quickie before school.” S. testified about one specific occasion, in defendant's bedroom, where defendant forcibly orally copulated her and then raped her. S. submitted because she was scared of defendant and was afraid he would injure her or send her away, separating her from Terri. Count 1-forcible oral copulation (§ 288a, subd. (c)(2)) Count 2-forcible rape (§ 261, subd. (a)(2)) Counts 9 & 10-forcible oral copulation (§ 288a, subd. (c)(2)) Count 11-forcible rape (§ 261, subd. (a)(2)) 24 25 26 Defendant raped and forcibly orally copulated S. during her driving lessons. He apparently would first force the copulation and then commit rape. S. testified to two specific occasions of forcible sex in defendant's car, but said forcible sex happened “a lot.” She was scared and afraid of being sent away. She felt “like a robot, like his 27 28 5 1 little toy.” She endured the forcible sex because she “couldn't bear to be separated” from her mother. 2 3 4 5 6 On another occasion, defendant took S. to the premises of a friend's business, where he forcibly orally copulated and then raped her. S. testified that while the family lived in Livermore defendant raped her or forced her to orally copulate him “one to two times a day.” S. was “robotic ... It was like programmed, I knew what to do. Then when he would be raping me, it was just like I was just a numb statue, like I was paralyzed. I wouldn't move ... I would just lay there.” 7 8 9 10 11 Defendant would complain about S.'s failure to show emotion during the forcible sex acts: “He would tell me, what's wrong with me, are you a lesbian, why aren't you acting like you're enjoying this.” If she wasn't responsive defendant would pinch her on the arm and hit her on the legs, enough to hurt but not enough to leave marks. Counts 12 & 13-forcible oral copulation (§ 288a, subd. (c)(2)) Count 14-forcible sodomy (§ 286, subd. (c)(2)) 12 13 14 Defendant forced S. to submit to sex acts more than 20 times on the premises of his sign business. S. testified to one specific occasion where defendant forced S. to orally copulate him, raped her, and forcibly sodomized her in the back of a van parked in the garage of the premises. 15 S. and J. 16 17 18 19 20 21 In addition to the abuse of S. summarized above, defendant continued to sexually molest J. after she returned from the Army and the family lived in Livermore. This included uncharged acts of sexual intercourse and forcible oral copulation. Defendant was convicted of forcible oral copulation and forcible rape of both S. and J., based on the incident we now describe. Count 5-forcible oral copulation (§ 288a, subd. (c)(2))(S.) Count 6-forcible rape (§ 261, subd. (a)(2))(S.) Count 7-forcible oral copulation (§ 288a, subd. (c)(2))(J.) Count 8-forcible rape (§ 261, subd. (a)(2))(J.) 22 23 24 25 26 On a day when Terri was out of town, defendant told S. that J. had seen them engaging in sex acts, and that defendant and S. had to trick J. into performing a sex act with the two of them “so she wouldn't be able to tell [Terri] what was going on.” Defendant told S. to “do what you do,” which S. took to mean that she would be forced to perform oral copulation on defendant and then be raped. Defendant then went to J. and told her that S. had seen them engaging in sexual activity, and that “the only way to keep [S.] 27 28 6 1 from saying something to [Terri] was to get all of us, the three of us total involved.” 2 3 4 5 6 7 8 9 10 11 12 Defendant called S. and J. to his bedroom and had them disrobe and get into bed. The three laughed and wrestled playfully, but then “it all of a sudden got really serious.” Defendant laid back on the bed and told J. to sit next to him. Pursuant to the earlier command of “do what you do,” S. began to perform oral sex on defendant. Defendant told J. to lick his nipples, which she did. Defendant then placed S. on her knees and raped her. During the rape defendant had J. stand behind him and lick his testicles. Defendant put S. on her back and raped her again. At some point defendant forced J. to orally copulate him. Defendant ordered S. and J. to get on all fours at the edge of the bed. The two girls knelt side-by-side. Defendant raped J., who stared down at the bedclothes and showed no emotion. S. touched her hand but she did not respond. J. “just wanted [the sex acts] to stop.” Defendant then raped S. Defendant sent J. to the store for food. After she left, defendant told S. that J. “wasn't good enough, so let me finish off with you.” Defendant raped S. again. 13 Aftermath 14 After admitting the sexual abuse to school counselor, S. was removed from defendant's home. When police investigated, J. denied she had been sexually molested by defendant. But defendant continued to sexually abuse her. Eventually J. established a romantic relationship with a man she met on the Internet, and left to live with him in Australia without defendant's or Terri's knowledge. She then felt safe enough to reveal the sexual abuse to police. 15 16 17 18 Defendant's response to J.'s revelation was this e-mail: 19 20 21 22 23 24 25 26 “Teri [ sic ] has only one daughter. You aren't it. She is putting your ass in jail. You will find out she wasn't joking shortly. She hates your fucking guts. You think you can leave Australia and get back in in three months. Doesn't even matter if you're married to the fucking loser, you won't get back in. Your ex-Mom took care of that. You are dead. Don't ever contact us again. You have no family, not Teri [ sic ], not Amanda, not Sean [ sic ]. You are dead to all of us. Do not contact us again. Whore. She has had her phone numbers changed so you-she's had her phone number changed so you doesn't [ sic ] hear your disgusting voice. She has blocked you from her mailbox. Don't make this mistake again. Ever. Ever. Ever, you disgusting piece of shit.” Following defendant's conviction of the 14 felony sex offenses, the trial court sentenced him to 70 years to life. The life sentence arises 27 28 7 1 from the One Strike law because defendant committed the sex offenses against two victims. (§ 667.61, subd. (e)(5).) 2 People v. Topper, No. A110478, 2006 WL 1742740 (Cal. App. 1st Dist., June 3 26, 2006), at *1-5. 4 STANDARD OF REVIEW 5 Under the Antiterrorism and Effective Death Penalty Act of 1996 6 (“AEDPA”), this Court may entertain a petition for habeas relief “in behalf of a 7 person in custody pursuant to the judgment of a state court only on the ground 8 that he is in custody in violation of the Constitution or laws or treaties of the 9 United States.” 28 U.S.C. § 2254(a). The writ may not be granted unless the 10 state court’s adjudication of any claim on the merits: “(1) resulted in a decision 11 that was contrary to, or involved an unreasonable application of, clearly 12 established Federal law, as determined by the Supreme Court of the United 13 States; or (2) resulted in a decision that was based on an unreasonable 14 determination of the facts in light of the evidence presented in the State court 15 proceeding.” Id. at § 2254(d). 16 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ 17 if a state court arrives at a conclusion opposite to that reached by the Supreme 18 Court on a question of law or if the state court decides a case differently than the 19 Supreme Court has on a set of materially indistinguishable facts.” Williams v. 20 Taylor, 529 U.S. 362, 412-12 (2000). “Under the ‘unreasonable application’ 21 clause, a federal habeas court may grant the writ if a state court identifies the 22 correct governing legal principle from the Supreme Court’s decisions but 23 unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. 24 In deciding whether the state court’s decision is contrary to, or an 25 unreasonable application of clearly established federal law, a federal court looks 26 to the decision of the highest state court to address the merits of a petitioner’s 27 28 8 1 claim in a reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th 2 Cir. 2000). If the state court only considered state law, the federal court must ask 3 whether state law, as explained by the state court, is “contrary to” clearly 4 established governing federal law. See, e.g., Lockhart v. Terhune, 250 F.3d 5 1223, 1230 (9th Cir. 2001); Hernandez v. Small, 282 F.3d 1132, 1141 (9th Cir. 6 2002)(state court applied correct controlling authority when it relied on state 7 court case that quoted Supreme Court for proposition squarely in accord with 8 controlling authority). DISCUSSION 9 10 In this petition for a writ of habeas corpus, Petitioner alleges that his due 11 process rights under the Fourteenth Amendment were violated by his conviction 12 for Counts 7 and 8 of sexual assault of victim Jennifer due to insufficient 13 evidence of duress. Further, Petitioner alleges that his confinement is 14 unconstitutional based on the imposition of upper term sentences on several of 15 the counts in violation of the Supreme Court decisions in Cunningham v. 16 California, 549 U.S. 270 (2007) and Blakely v. Washington, 542 U.S. 296 17 (2004). 18 I. 19 Sufficiency of Evidence. Petitioner challenges the sufficiency of evidence to sustain his conviction 20 for forcible oral copulation (Count 7) and forcible rape (Count 8) of victim 21 Jennifer. Specifically, Petitioner alleges that the prosecution did not establish the 22 necessary element of “duress” during the trial and that the prosecution’s failure 23 to establish Jennifer’s motive for keeping the acts secret precluded any finding of 24 duress, a necessary element of the sexual assault charges. 25 A. 26 The Due Process Clause “protects the accused against conviction except Legal Standard 27 28 9 1 upon proof beyond a reasonable doubt of every fact necessary to constitute the 2 crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). In 3 reviewing a habeas petition for a prisoner who alleges insufficiency of evidence 4 to support his conviction, the federal court must determine whether, “after 5 viewing the evidence in the light most favorable to the prosecution, any rational 6 trier of fact could have found the essential elements of the crime beyond a 7 reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). 8 9 If confronted by a record that supports conflicting inferences, a federal habeas court “must presume – even if it does not affirmatively appear on the 10 record – that the trier of fact resolved any such conflicts in favor of the 11 prosecution, and must defer to that resolution.” Id. at 326. A jury’s credibility 12 determinations are therefore entitled to near-total deference. Bruce v. Terhune, 13 376 F.3d 950, 957 (9th Cir. 2004). Except in the most exceptional of 14 circumstances, Jackson does not permit a federal habeas court to revisit 15 credibility determinations. See id. (credibility contest between victim alleging 16 sexual molestation and defendant vehemently denying allegations of wrongdoing 17 not a basis for revisiting jury’s obvious credibility determination); see also 18 People of the Territory of Guam v. McGravey, 14 F.3d 1344, 1346-47 (9th Cir. 19 1994) (upholding conviction for sexual molestation based entirely on 20 uncorroborated testimony of victim). 21 Where behavior is consistent with both guilt and innocence, the burden is 22 on the State to produce evidence that would allow a rational trier of fact to 23 conclude beyond a reasonable doubt that the behavior was consistent with guilt. 24 Sarausad v. Porter, 479 F.3d 671, 678 (9th Cir. 2007). However, the 25 prosecution need not affirmatively rule out every hypothesis except that of guilt. 26 Wright v. West, 505 U.S. 277, 296-97 (1992) (quoting Jackson, 443 U.S. at 326); 27 28 10 1 see, e.g., Davis v. Woodford, 384 F.3d 628, 639-41 (9th Cir. 2004) (finding 2 sufficient evidence of premeditation). The existence of some small doubt based 3 on an unsupported yet unrebutted hypothesis of innocence therefore is not 4 sufficient to invalidate an otherwise legitimate conviction. See Taylor v. Stainer, 5 31 F.3d 907, 910 (9th Cir. 1994) (three hypotheses regarding petitioner's 6 fingerprints which government failed to rebut unsupported by evidence and 7 therefore insufficient to invalidate conviction). 8 9 Furthermore, under AEDPA, a federal habeas court has an additional layer of deference in its application of Jackson. Juan H. v. Allen, 408 F.3d 1262, 10 1274 (9th Cir. 2005). Generally, a federal habeas court must ask whether the 11 operative state court decision reflected an unreasonable application of Jackson 12 and In re Winship to the case at hand. Id. at 1275. 13 B. 14 The relevant question is whether there was sufficient evidence of duress Analysis 15 for a rational trier of fact to find Petitioner guilty of the charged offenses in 16 Counts 7 and 8 under Cal. Penal Code § 261(a)(2) and 288 (c)(2). Jackson, 443 17 U.S. at 319. The state appellate court issued a reasoned opinion in which the 18 court upheld the convictions, finding sufficient evidence to support the jury’s 19 findings of duress under California law on the two counts. People v. Topper, 20 2006 WL 1742740 at *6-7. The California Court of Appeal laid out an extensive 21 history of sexual abuse of victim Jennifer, starting when she was 15 years old, in 22 order to establish the circumstances under which the evidence is considered to 23 make a finding of duress under California law. Id. at *1, n.1. Reviewing the 24 evidence in the light most favorable to the prosecution, this Court must 25 determine whether the state court unreasonably applied Jackson and In re 26 Winship in its determination that there was sufficient evidence to support 27 28 11 1 Topper’s convictions on these counts. Juan H., 408 F.3d at 1275. 2 Defendant alleges that his conviction of forcible oral copulation and 3 forcible sexual intercourse on victim Jennifer was based on insufficient evidence. 4 Defendant first points out that several of the threats that were relied upon were 5 made to Jennifer before he and the family moved to California. Furthermore, he 6 alleges that the reason that Jennifer wished to keep the sexual acts a secret from 7 her mother remained unanswered throughout the course of the trial, and this fact 8 supports his contention that there is no evidence that he ever used duress in order 9 to forcibly commit oral copulation and sexual intercourse against her. 10 Respondent argues that the state court correctly applied clearly established 11 federal law in the case in its determination that there was duress and that a 12 reasonable trier of fact could have found Petitioner guilty. 13 Petitioner’s argument that there was insufficient evidence to support the 14 finding of duress by the jury is without merit. Throughout the trial, it was 15 established that Petitioner had both psychological and physical control over 16 Jennifer, Jennifer’s sister and Jennifer’s mother. See e.g. Resp. Exhibit B, 17 Reporter’s Transcript (hereinafter “RT) at 274, 285, 289-90. The prosecution 18 offered evidence of Jennifer’s vulnerable emotional state when Petitioner came 19 into her life as her stepfather after the death of Jennifer’s father. RT 271-72, 20 392-402. Petitioner began to sexually abuse Jennifer when Jennifer was fifteen 21 years old, and used both physical and verbal threats to keep Jennifer under 22 control. Id. In sum, Jennifer testified that Petitioner had forced her to perform 23 sexual intercourse and oral copulation between 10 and 20 times when she was 24 underage, and the sexual assaults continued when she was over the age of 18. 25 RT at 88, 404. 26 The prosecution also underscored the continuous threats that Jennifer 27 28 12 1 faced from Petitioner, including threats of being thrown out of the house that she 2 shared with her mother, and being unable to pursue her goal of joining the 3 military if her abuse was revealed. RT 408-417. Although the criminal acts 4 described in Counts 7 and 8 were committed when Jennifer was no longer a 5 minor, the lengthy history of Petitioner’s physical and emotional abuse of 6 Jennifer is enough for a reasonable trier of fact to find duress. 7 During trial, other examples of Petitioner’s psychological control 8 over Jennifer and the rest of her family were presented as evidence of 9 Petitioner’s emotional hold over Jennifer and the rest of her family. Jennifer’s 10 younger brother was sent away to reform school after he refused to paint the 11 family garage. RT at 291-92. Petitioner also threatened to send Jennifer’s sister, 12 Sandee, away to reform school. RT at 417. When Jennifer told her mother about 13 the abuse that she was going through, Petitioner told Jennifer to pack up her 14 belongings and took her on a car ride during which he recorded a conversation 15 where he coerced Jennifer into agreeing that she would be cooperative out of 16 intimidation. Id. Petitioner also allegedly beat Jennifer’s younger brother and at 17 one point dragged Jennifer’s sister down a flight of stairs when he was unhappy, 18 indicating a propensity for violence and adding to Jennifer’s fear of Petitioner. 19 RT at 291-292, 463. 20 After reviewing the trial record, the state appellate court found that the 21 jury was entitled to consider the element of duress “through the history of past 22 control and coercion” and that the jury “could reasonably conclude that 23 defendant exerted psychological coercion to get J. to submit” to the rape as well 24 as the charge of oral copulation. People v. Topper, 2006 WL 1742740 at *7. 25 The court noted that Defendant’s conduct in California alone provided ample 26 support for the finding of duress. Id. 27 28 13 1 A review of the record shows that the appellate court reasonably applied 2 the rules in Jackson and In re Winship here. A reasonable trier of fact could 3 easily conclude with the evidence presented that Petitioner was guilty of the 4 charged offense. Juan H., 408 F.3d at 1275. The state court’s findings were not 5 contrary to or an unreasonable application of established federal law, therefore 6 Petitioner’s claim must be denied. 7 II. Blakely and Cunningham Claim 8 9 Petitioner also challenges his conviction on the grounds that his sentence is in violation of the Supreme Court decisions in Blakely and Cunningham 10 because an upper term limit was imposed by the trial court on several counts 11 based on his prior convictions. Blakely v. Washington, 542 U.S. 296 (2004); 12 Cunningham v. California, 549 U.S. 270 (2007). 13 In the amended petition, Petitioner argues that since his prior convictions 14 upon which the trial court relied for his upper term sentence were for nonviolent 15 crimes such as writing a bad check, making a false statement to a bank and 16 failure to pay a motel bill, they should not have been used in aggravation, but 17 should have been considered mitigating factors when determining his sentence. 18 A. Legal Standard 19 The Sixth Amendment to the United States Constitution guarantees a 20 criminal defendant the right to a trial by jury. U.S. Const. amend. VI. This right 21 to a jury trial has been made applicable to state criminal proceedings via the 22 Fourteenth Amendment's Due Process Clause. Duncan v. Louisiana, 391 U.S. 23 145, 149-50 (1968). The Supreme Court’s Sixth Amendment jurisprudence was 24 significantly expanded by Apprendi v. New Jersey, 530 U.S. 466 (2000) and its 25 progeny, which extended a defendant’s right to trial by jury to the fact finding 26 used to make enhanced sentencing determinations as well as the actual elements 27 28 14 1 of the crime. “Other than the fact of a prior conviction, any fact that increases 2 the penalty for a crime beyond the prescribed statutory maximum must be 3 submitted to a jury, and proved beyond a reasonable doubt.” Id. at 488-90 4 (2000). The “statutory maximum” for Apprendi purposes is the maximum 5 sentence a judge could impose based solely on the facts reflected in the jury 6 verdict or admitted by the defendant; that is, the relevant “statutory maximum” is 7 not the sentence the judge could impose after finding additional facts, but rather 8 is the maximum he or she could impose without any additional findings. 9 Blakely, 542 U.S. at 303-04. 10 In Cunningham v. California, 549 U.S. 270 (2007), the Court held that 11 California's determinate sentencing law (“DSL”) violated the Sixth Amendment 12 because it allowed the sentencing court to impose an elevated sentence based on 13 aggravating facts that it found to exist by a preponderance of the evidence. Id. at 14 274, 291-92. The sentencing court was directed under the DSL to start with a 15 “middle term” and then move to an “upper term” only if it found aggravating 16 factual circumstances beyond the elements of the charged offense. Id. at 278. 17 Concluding that the middle term was the relevant statutory maximum, and noting 18 that aggravating facts were found by a judge and not the jury, the Supreme Court 19 held that the California sentencing law violated the rule set out in Apprendi. 20 Id. at 293-94. Although the DSL gave judges broad discretion to identify 21 aggravating factors, this discretion did not make the upper term the statutory 22 maximum because the jury verdict alone did not authorize the sentence and 23 judges did not have the discretion to choose the upper term unless it was justified 24 by additional facts. Id. at 288-89. Cunningham did not announce a new rule and 25 thus applies retroactively on collateral review. Butler v. Curry, 528 F.3d 624, 26 639 (9th Cir. 2008) 27 28 15 1 Apprendi's “prior conviction” exception is limited to prior convictions 2 resulting from proceedings that afforded the procedural necessities of a jury trial 3 and proof beyond a reasonable doubt. United States v. Tighe, 266 F.3d 1187, 4 1194 (9th Cir. 2001). Recidivism and prior convictions increasing the maximum 5 penalty need not be charged to comport with the constitutional right to fair notice 6 because they are not considered an element of the offense charged. See 7 Almendarez-Torres v. United States, 523 U.S. 224, 243-44 (1998); United States 8 v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir. 2001), cert. denied, 532 U.S. 9 966 (2001) (holding that Almendarez-Torres remains good law after Apprendi 10 and provides that prior convictions, whether or not admitted by the defendant on 11 the record, are sentencing factors rather than elements of the crime). 12 Prior convictions resulting from adjudications that do not afford the right 13 to a jury trial and a beyond-a-reasonable-doubt burden of proof do not fall within 14 Apprendi's “prior conviction” exception; therefore, they must be submitted to a 15 jury and proved beyond a reasonable doubt before they can be used to increase 16 the penalty for a crime beyond the prescribed statutory maximum. See Tighe, 17 266 F..3d at 1194-95 (juvenile adjudications that do not afford the right to a jury 18 trial and beyond-a-reasonable-doubt burden of proof do not fall within 19 Apprendi's "prior conviction" exception). Tighe’s holding does not represent 20 clearly established Supreme Court precedent, however. See Boyd v. Newland, 21 467 F.3d 1139, 1152 (9th Cir. 2006) (in the face of other-circuit authority that is 22 directly contrary to Tighe, and in the absence of explicit direction from the 23 Supreme Court, it cannot be said that California courts’ use of a juvenile 24 adjudication as a sentencing enhancement was contrary to, or involved an 25 unreasonable application of, Supreme Court precedent). 26 The Ninth Circuit has previously found that a sentencing court’s 27 28 16 1 determination that the current offense was committed while the defendant was on 2 probation does not come within Apprendi’s “prior offense” exception. Butler, 3 528 F.3d at 641, but also has concluded that the Butler holding is not clearly 4 established Supreme Court law, so cannot be the basis for federal habeas relief, 5 Kessee v. Mendoza-Powers, 574 F.3d 675, 679 (9th Cir. 2009) (holding that the 6 state appellate court’s finding that Petitioner had committed crimes while on 7 probation fell within the “prior conviction” exception does not contravene 8 AEDPA standards.) As Kessee states, 11 Because the Supreme Court has not given explicit direction and because the state court’s interpretation is consistent with many other state courts’ interpretations, we cannot hold that the state court’s interpretation was contrary to, or an unreasonable application of established Supreme Court precedent. 12 Failure to submit a sentencing factor to the jury, like failure to submit an 9 10 13 element to the jury, is not structural error; therefore, it is subject to harmless- 14 error analysis. Washington v. Recuenco, 548 U.S. 212, 221-22 (2006). 15 Any such error would be subject to review for harmlessness under Brecht v. 16 Abrahamson, 507 U.S. 619 (1993). 17 B. Analysis 18 Petitioner’s argues that his sentence is invalid because the court used 19 evidence of his prior convictions to impose an upper term on several counts in 20 rendering his sentence. Petitioner argues that this was not legally valid because 21 his prior convictions were for nonviolent crimes, which should have been 22 considered in mitigation rather than as aggravating factors. 23 In rendering sentence, the trial court found that Petitioner was eligible for 24 the upper term due to aggravating terms set forth in California Rule of Court 25 4.421, under subsections, (a)(3). (a)(11), (b)(2) and (b)(3). RT at 626. Of these 26 aggravating factors, (b)(2) and (b)(3), which relate to Petitioner’s prior 27 28 17 1 2 convictions, are considered here. The trial court’s findings regarding Petitioner’s prior convictions falls 3 squarely within the prior conviction exception to Apprendi. See Apprendi, 530 4 U.S. at 488-90. Since the “finding of a single aggravating factor is sufficient to 5 render a defendant eligible for the upper term” this court only needs to consider 6 whether one of the factors that the trial court relied on in sentencing Petitioner 7 could have supported the upper term. See Butler, 528 F.3d at 641. 8 Petitioner does not allege that his prior convictions and prior prison 9 sentence were the result of proceedings that did not afford him the right to a jury 10 trial and proof beyond a reasonable doubt. Therefore, the trial court’s imposition 11 of the upper term based on Petitioner’s prior convictions falls within the 12 Apprendi exception. Tighe, 266 F.3d at 1194. There is no requirement under 13 Apprendi and its progeny that the prior convictions were for certain types of 14 crimes, such as violent crimes, as Petitioner apparently argues. Therefore, the 15 petition for writ of habeas corpus on this claim must be denied here. 16 Petitioner’s separate contention that the trial court’s sentence of 17 consecutive terms on his convictions violates the rule in Blakely is also without 18 merit. The application of Apprendi and its progeny is limited to sentencing 19 decisions historically reserved for the jury. See Oregon v. Ice, 129 S. Ct. 711, 20 717-18 (2009) (declining to extend Apprendi to a state’s sentencing system that 21 gives judges discretion to determine facts allowing imposition of consecutive or 22 concurrent sentences for multiple offenses, noting that determination of 23 consecutive versus concurrent sentences is traditionally not within the function 24 of the jury). Therefore, this claim also fails. 25 26 CERTIFICATE OF APPEALABILITY The federal rules governing habeas cases brought by state prisoners have 27 28 18 1 recently been amended to require a district court that denies a habeas petition to 2 grant or deny a certificate of appealability in the ruling. See Rule 11(a), Rules 3 Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (effective December 1, 2009). 4 A petitioner may not appeal a final order in a federal habeas corpus 5 proceeding without first obtaining a certificate of appealability (formerly known 6 as a certificate of probable cause to appeal). See 28 U.S.C. § 2253(c); Fed. R. 7 App. P. 22(b). A judge shall grant a certificate of appealability “only if the 8 applicant has made a substantial showing of the denial of a constitutional right.” 9 28 U.S.C. § 2253(c)(2). The certificate must indicate which issues satisfy this 10 standard. See id. § 2253(c)(3). “Where a district court has rejected the 11 constitutional claims on the merits, the showing required to satisfy § 2253(c) is 12 straightforward: the petitioner must demonstrate that reasonable jurists would 13 find the district court's assessment of the constitutional claims debatable or 14 wrong.” Slack v. McDaniel, 120 S.Ct. 1595, 1604 (2000). 15 For the reasons set out in the discussion of the merits, above, jurists of 16 reason would not find the result debatable. A certificate of appealability will be 17 denied. 18 19 CONCLUSION The state court’s denial of Petitioner’s habeas petition is not contrary to or 20 an unreasonable application of established federal law determined by the 21 Supreme Court. Therefore, Petitioner’s claims are DENIED and the Court 22 declines to grant a certificate of appealability. The Clerk shall enter judgment 23 and close the file. 24 25 26 IT IS SO ORDERED. DATED: August 30, 2010 _____________________ JEFFREY S. WHITE United States District Judge 27 28 19 UNITED STATES DISTRICT COURT 1 FOR THE 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 JAMES E TOPPER, Case Number: CV07-04543 JSW Plaintiff, CERTIFICATE OF SERVICE 7v. 8 M S EVANS et al, 9 Defendant. / 10 11 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 12 13 14 That on August 30, 2010, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James E. Topper V79602 P.O. Box 8500 Coalinga, CA 90029 Dated: August 30, 2010 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk
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