Olds v. Yates, No. 3:2009cv03258 - Document 17 (N.D. Cal. 2010)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Richard Seeborg on 7/29/10. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 7/30/2010)
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Olds v. Yates Doc. 17 1 2 3 4 *E-Filed 7/30/10* 5 6 United States District Court For the Northern District of California 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 12 TOD OLDS, Petitioner, 13 14 15 16 No. C 09-3258 RS (PR) ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. JAMES A. YATES, Warden, Respondent. / 17 18 19 20 21 22 INTRODUCTION This is a federal habeas corpus action filed by a pro se state prisoner pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is DENIED. BACKGROUND In 2007, the San Mateo County Superior Court, following a bench trial, convicted 23 petitioner of robbery, assault, and petty theft. The trial court sentenced petitioner to 24 seventeen years in state prison. Petitioner sought, but was denied, relief on direct and 25 collateral state review. This federal habeas petition followed. 26 27 28 No. C 09-3258 RS (PR) ORDER DENYING PETITION Dockets.Justia.com 1 The state appellate court summarized the facts as follows: 2 [Petitioner] went into [a Target] store around 8:00 p.m. on October 13, 2006, bought a trumpet and guitar, and left. He put the items in his car, changed clothes, and returned to the store a few minutes later, with the receipt for that purchase. He put identical items — another trumpet and guitar — in his shopping cart, and walked out of the store without paying for them. [Petitioner] admitted in his testimony that he had committed thefts in this manner 30 or 40 other times. He was armed with a knife. He also carried a badge, handcuffs, and a “replica of [a] BB gun” in a belt holster, as what he called a “costume” for the occasion. 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 Security guard Trujillo saw what [petitioner] was doing on the store’s surveillance cameras, and followed behind [petitioner] as he walked toward the doors. Target security guard Walter Recinos was at the doors ready to check [petitioner]’s receipt, but Trujillo waived Recinos off and they allowed [petitioner] to leave the store with the merchandise. Trujillo and Recinos approached [petitioner] from behind as he pushed the shopping cart outside the store, identified themselves as security, and grabbed [petitioner], causing him to lose his grip on the shopping cart, which rolled away on the downward sloping pavement. Trujillo could not say whether [petitioner] pushed the cart away or simply let go of it, but [petitioner] testified that he did not push the cart. When [petitioner] was asked how the cart left his hands he answered, “Just when I got hit everything else was gone.” Trujillo took hold of [petitioner]’s wrist and Recinos put his hand on [petitioner]’s shoulder in an attempt to handcuff him, but the three fell to the ground struggling. During the struggle, Trujillo ripped [petitioner]’s holster from his hip, handed it to another Target security guard, and told her to take it into the store and call the police. [Petitioner], who was trying to get up, said, “I have a knife.” [Petitioner] flipped open a switchblade knife, and tried to stab Trujillo in the thigh with it. Trujillo moved away to avoid being stabbed, told Recinos to “abort” the capture, and turned around and returned to the store as [petitioner] ran away into the parking lot. Target personnel retrieved the shopping cart with the trumpet and guitar; [petitioner] did not take the items when he fled. 19 20 21 (Ans., Ex. 2 at 2.) As grounds for federal habeas relief, petitioner alleges that (1) there was insufficient 22 evidence to support the robbery conviction; and (2) imposition of an upper term sentence 23 violated his rights to a jury trial and due process. 24 STANDARD OF REVIEW 25 This court may entertain a petition for writ of habeas corpus “in behalf of a person in 26 custody pursuant to the judgment of a State court only on the ground that he is in custody in 27 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 28 2 No. C 09-3258 RS (PR) ORDER DENYING PETITION 1 The petition may not be granted with respect to any claim that was adjudicated on the merits 2 in state court unless the state court’s adjudication of the claim: “(1) resulted in a decision that 3 was contrary to, or involved an unreasonable application of, clearly established Federal law, 4 as determined by the Supreme Court of the United States; or (2) resulted in a decision that 5 was based on an unreasonable determination of the facts in light of the evidence presented in 6 the State court proceeding.” 28 U.S.C. § 2254(d). United States District Court For the Northern District of California 7 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state 8 court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of 9 law or if the state court decides a case differently than [the] Court has on a set of materially 10 indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412–13 (2000). “Under 11 the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state 12 court identifies the correct governing legal principle from [the] Court’s decision but 13 unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A] 14 federal habeas court may not issue the writ simply because that court concludes in its 15 independent judgment that the relevant state-court decision applied clearly established 16 federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” 17 Id. at 411. A federal habeas court making the “unreasonable application” inquiry should ask 18 whether the state court’s application of clearly established federal law was “objectively 19 unreasonable.” Id. at 409. 20 21 DISCUSSION I. Sufficiency of Evidence 22 Petitioner claims that there was insufficient evidence to support his robbery 23 conviction. (Pet. at 8.) Specifically, petitioner asserts that there was insufficient evidence 24 that the robbery was accomplished by means of force or fear. (Id.) 25 The state appellate court rejected this claim, and cited the following facts: 26 The evidence at trial included a DVD of the incident compiled by Trujillo from recordings made with the store’s surveillance cameras, which the court viewed “over ten times” before making its ruling. We have likewise reviewed the 27 28 3 No. C 09-3258 RS (PR) ORDER DENYING PETITION 1 2 3 4 5 6 United States District Court For the Northern District of California 7 video, and conclude that it supports the court’s determination. It appears from the video that, as the testimony suggested, [petitioner]’s hands were forcibly dislodged from the shopping cart when Trujillo and Recinos grabbed him. The video shows the shopping cart rolling away and coming to rest a few yards away from where [petitioner] and the security guards are struggling. During the struggle Trujillo can be seen kicking his left leg back; he testified that this was the point at which [petitioner] attempted to stab him. Trujillo and Recinos then move away from [petitioner], who stands for a moment brandishing the knife, then bends down to pick up the handcuffs he had been carrying, and then turns and runs off into the parking lot, moving past the shopping cart without taking the stolen goods. (Ans., Ex. 2 at 4–5.) 8 In California, robbery is defined as “the felonious taking of personal property in the 9 possession of another from his or her person or immediate presence, against his or her will, 10 accomplished by means of force or fear.” (Ans., Ex. 2 at 3.) “The taking element of robbery 11 itself has two necessary elements, gaining possession of the victim’s property and asporting 12 or carrying away the loot.” (Id.) “Circumstances otherwise constituting a mere theft will 13 establish a robbery where the perpetrator peacefully acquires the victim’s property, but then 14 uses force to retain or escape with it.” (Id.) 15 A federal court reviewing collaterally a state court conviction does not determine 16 whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. 17 Borg, 982 F.2d 335, 338 (9th Cir. 1992). The federal court “determines only whether, ‘after 18 viewing the evidence in the light most favorable to the prosecution, any rational trier of fact 19 could have found the essential elements of the crime beyond a reasonable doubt.’” See id. 20 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979.). Only if no rational trier of fact 21 could have found proof of guilt beyond a reasonable doubt, may the writ be granted. See 22 Jackson, 443 U.S. at 324. 23 Applying these legal principles to the instant action, the Court concludes that 24 Petitioner has not shown that he is entitled to habeas relief on this claim. A rational trier of 25 fact could have found from the evidence presented that petitioner committed the crime with 26 the use of force and fear: petitioner, when captured, pulled out a knife and tried to stab 27 Trujillo, and was able to flee after Trujillo aborted the capture. On appeal, petitioner asserted 28 4 No. C 09-3258 RS (PR) ORDER DENYING PETITION 1 that this evidence shows that he abandoned the property before he attacked Trujillo. His use 2 of violence, consequently, was not to further the robbery, but to fend off Trujillo and escape 3 capture. However plausible this reading may be, a rational trier of fact could permissibly 4 read the evidence proving beyond a reasonable doubt that petitioner was trying to accomplish 5 the robbery by use of force, and, as Trujillo’s dodging of the blow and curtailment of capture 6 efforts reflects, fear. See Jackson, 443 U.S. at 324. Accordingly, petitioner’s claim is 7 DENIED. 8 II. United States District Court For the Northern District of California 9 Sentencing Petitioner contends that the trial court’s imposition of the upper term for the robbery 10 conviction violated his Sixth and Fourteenth Amendment rights. (Pet. at 8.) The state 11 appellate court did not address this claim in its written opinion. The trial court imposed the 12 upper term sentence of five years for the robbery conviction based on the aggravating factors 13 that petitioner had prior felony convictions, that he was on parole at the time the robbery was 14 committed, and that the victims were particularly vulnerable. (Ans., Ex. 7, Vol. 8 at 15 324–35.) 16 any fact that increases the penalty for a crime beyond the prescribed statutory maximum must 17 be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 18 U.S. 466, 490 (2000). The “statutory maximum” discussed in Apprendi is the maximum 19 sentence a judge could impose based solely on the facts reflected in the jury verdict or 20 admitted by the defendant; in other words, the relevant “statutory maximum” is not the 21 sentence the judge could impose after finding additional facts, but rather the maximum he 22 could impose without any additional findings. Blakely v. Washington, 542 U. S. 296, 303-04 23 (2004). In California, the middle term is deemed the statutory maximum, and thus the 24 imposition of the upper term, such as in the instant case, can implicate a criminal defendant’s 25 Apprendi rights. See Cunningham v. California, 549 U.S. 270, 293 (2007). In California, 26 sentencing courts are to consider various aggravating and mitigating factors in determining 27 whether to impose an upper term. See Cal. Rules of Court 4.421 & 4.423. A single The Sixth Amendment requires that “[o]ther than the fact of a prior conviction, 28 5 No. C 09-3258 RS (PR) ORDER DENYING PETITION 1 aggravating factor is sufficient to authorize a California trial court to impose the upper term. 2 People v. Osband, 13 Cal. 4th 622, 728 (Cal. 1996). Aggravating factors include: the 3 defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency 4 proceedings which are numerous or of increasing seriousness, the defendant has served a 5 prior prison term, the defendant was on probation or parole when the crime was committed, 6 see Cal. Rules of Court 4.421(b)(2)–(4), and the victim was vulnerable, see Cal. Rules of 7 Court 4.421(a)(3). 8 United States District Court For the Northern District of California 9 Petitioner’s upper term sentence is not erroneous under Cunningham. Specifically, petitioner admitted, through his attorney, that petitioner was on parole at the time the offense 10 was committed. (Ans., Ex. 7, Vol. 7 at 306 & 312–13.) Therefore, the imposition of the 11 upper term, thereby increasing petitioner’s sentence beyond the statutory maximum, was 12 based on a factor admitted by petitioner, and is therefore not unconstitutional under 13 Cunningham. Furthermore, even if the sentence were unconstitutional under that case 14 precedent, any error would be harmless. Blakely and Apprendi sentencing errors are subject 15 to a harmless error analysis. Washington v. Recuenco, 548 U.S. 212, 221 (2006). Applying 16 Brecht v. Abrahamson, 507 U.S. 619 (1993), the Court must determine whether “the error 17 had a substantial and injurious effect” on petitioner’s sentence. Hoffman v. Arave, 236 F.3d 18 523, 540 (9th Cir.2001) (internal quotation marks omitted). Under that standard, the Court 19 must grant relief if it is in “grave doubt” as to whether a jury would have found the relevant 20 aggravating factors beyond a reasonable doubt. O’Neal v. McAninch, 513 U.S. 432, 436 21 (1995). Grave doubt exists when, “in the judge’s mind, the matter is so evenly balanced that 22 he feels himself in virtual equipoise as to the harmlessness of the error.” Id. at 435. 23 Applying these legal principles to the instant matter, the Court concludes that the error 24 was harmless. In sum, sufficient evidence exists in the record to support the trial court’s 25 imposition of the upper term on grounds that petitioner’s prior convictions were numerous 26 and increasing in seriousness, see Ans., Ex. 7, Vol. 5 at 290–92. On such evidence, and in 27 light of the highly deferential AEDPA standard, the Court harbors no “grave doubts” as to 28 6 No. C 09-3258 RS (PR) ORDER DENYING PETITION 1 whether a jury would have found the relevant aggravating factor beyond a reasonable doubt, 2 and, accordingly, the Court must deny petitioner habeas relief on his sentencing claim. CONCLUSION 3 4 5 contrary to, or involved an unreasonable application of, clearly established federal law, nor 6 did it result in a decision that was based on an unreasonable determination of the facts in 7 light of the evidence presented in the state court proceeding. Accordingly, the petition is 8 DENIED. 9 United States District Court For the Northern District of California The state court’s denial of petitioner’s claims did not result in a decision that was A certificate of appealability will not issue. Petitioner has not shown that “reasonable 10 jurists would find the district court’s assessment of the constitutional claims debatable or 11 wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 12 The Clerk shall enter judgment in favor of respondent, and close the file. 13 IT IS SO ORDERED. 14 DATED: July 29, 2010 RICHARD SEEBORG United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 No. C 09-3258 RS (PR) ORDER DENYING PETITION
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