Ortega v. Haviland, No. 4:2009cv02556 - Document 7 (N.D. Cal. 2010)
Court Description: ORDER DENYING re 1 Petition for Writ of Habeas Corpus filed by Armondo Gibb Ortega. Signed by Judge Claudia Wilken on July 22, 2010. (cwlc1, COURT STAFF) (Filed on 7/22/2010)
Download PDF
<![CDATA[
Ortega v. Haviland Doc. 7 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 ARMONDO GIBB ORTEGA, 9 United States District Court For the Northern District of California 10 11 No. 09-02556 CW Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. JOHN W. HAVILAND, 12 Respondent. / 13 14 15 On June 9, 2009, Petitioner Armondo Gibb Ortega, a state 16 prisoner currently incarcerated at California State Prison, Solano 17 in Vacaville, California, filed this petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254 challenging the validity of his 19 incarceration. 20 filed an answer. 21 traverse. 22 parties, the Court DENIES the petition for writ of habeas corpus. Petitioner is represented by counsel. On September 9, 2009, Petitioner filed a Having considered all the papers submitted by the BACKGROUND 23 24 Respondent On July 7, 2003, Petitioner proceeded to trial to the court, 25 having waived a jury. The victim, who was six years old at the 26 time of the offense, testified that Petitioner molested her 27 approximately two to three times in each of two separate locations. 28 Resp.’s Ex. 15 at 2. The court had evidence of Petitioner’s prior Dockets.Justia.com 1 conviction under California Penal Code section 288. 2 at 4. 3 and lascivious act on a child, California Penal Code 4 section 288(a), and one count of failing to register as a sex 5 offender, California Penal Code section 290(a). 6 Petitioner had a prior “strike” conviction, California Penal 7 Code section 1170.12, and a prior violent felony conviction, 8 California Penal Code section 667(a). United States District Court For the Northern District of California 9 Resp.’s Ex. 15 Petitioner was convicted of six counts of committing a lewd The court found Petitioner moved for the appointment of new counsel to 10 represent him in a motion for new trial, contending that his 11 counsel inadequately represented him. 12 adequate and denied the motion. 13 Petitioner presented his motion for a new trial by reading it to 14 the court. 15 The court found counsel was At sentencing on December 4, 2003, The court denied the motion. The court sentenced Petitioner to 134 years and four months to 16 life in prison. 17 Petitioner’s prior conviction and were imposed consecutively. 18 Sentences on all counts were doubled due to Petitioner timely appealed to the California court of appeal 19 claiming there were ten reversible errors at trial. 20 2005, the court of appeal filed an unpublished opinion rejecting 21 Petitioner’s claims and affirming the judgment. 22 The California court of appeal denied a petition for rehearing on 23 December 6, 2005. 24 denied review on February 22, 2006. 25 Resp.’s Ex. 9. On November 9, Resp.’s Ex. 7. The California Supreme Court Resp.’s Ex. 11. On February 20, 2007, the United States Supreme Court granted 26 Petitioner’s petition for a writ of certiorari, vacated the 27 judgment of the California court of appeal, and remanded the case 28 2 1 to the California court of appeal for further consideration in 2 light of Cunningham v. California, 549 U.S. 270 (2007) (holding 3 that California’s determinate sentencing law (DSL) was 4 unconstitutional because factors that increased the length of a 5 prisoner’s sentence beyond the statutory maximum were not found by 6 a jury or proven beyond a reasonable doubt). United States District Court For the Northern District of California 7 Resp.’s Ex. 12. On November 5, 2007, the California court of appeal issued an 8 unpublished opinion affirming the judgment. 9 California Supreme Court denied review on January 16, 2008. Resp.’s Ex. 15. 10 Resp.’s Ex. 17. 11 petition for a writ of certiorari on June 23, 2008. 12 19. The United State Supreme Court denied Petitioner’s 13 14 The Resp.’s Ex. LEGAL STANDARD A federal court may entertain a habeas petition from a state 15 prisoner “only on the ground that he is in custody in violation of 16 the Constitution or laws or treaties of the United States." 17 28 U.S.C. § 2254(a). 18 Penalty Act of 1996 (AEDPA), a district court may not grant habeas 19 relief unless the state court's adjudication of the claim: 20 “(1) resulted in a decision that was contrary to, or involved an 21 unreasonable application of, clearly established federal law, as 22 determined by the Supreme Court of the United States; or 23 (2) resulted in a decision that was based on an unreasonable 24 determination of the facts in light of the evidence presented in 25 the State court proceeding." 26 Taylor, 529 U.S. 362, 412 (2000). 27 questions of law and to mixed questions of law and fact, id. at 28 Under the Antiterrorism and Effective Death 28 U.S.C. § 2254(d); Williams v. The first prong applies both to 3 1 407-09, and the second prong applies to decisions based on factual 2 determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). United States District Court For the Northern District of California 3 A state court decision is "contrary to" Supreme Court 4 authority, that is, falls under the first clause of § 2254(d)(1), 5 only if "the state court arrives at a conclusion opposite to that 6 reached by [the Supreme] Court on a question of law or if the state 7 court decides a case differently than [the Supreme] Court has on a 8 set of materially indistinguishable facts." 9 412-13. Williams, 529 U.S. at A state court decision is an “unreasonable application of” 10 Supreme Court authority, under the second clause of § 2254(d)(1), 11 if it correctly identifies the governing legal principle from the 12 Supreme Court's decisions but “unreasonably applies that principle 13 to the facts of the prisoner's case.” 14 court on habeas review may not issue the writ “simply because that 15 court concludes in its independent judgment that the relevant 16 state-court decision applied clearly established federal law 17 erroneously or incorrectly.” 18 must be “objectively unreasonable” to support granting the writ. 19 Id. at 409. 20 Id. at 413. Id. at 411. The federal Rather, the application If constitutional error is found, habeas relief is warranted 21 only if the error had a “‘substantial and injurious effect or 22 influence in determining the jury's verdict.’” 23 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 24 619, 638 (1993)). 25 Penry v. Johnson, When there is no reasoned opinion from the highest state court 26 to consider the petitioner’s claims, the court looks to the last 27 reasoned opinion of the highest court to analyze whether the state 28 4 1 judgment was erroneous under the standard of § 2254(d). 2 Nunnemaker, 501 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 3 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). 4 California court of appeal is the highest court that addressed 5 Petitioner’s claims. United States District Court For the Northern District of California 6 Ylst v. In the present case, the DISCUSSION 7 Petitioner supports his petition for a writ for habeas corpus 8 with three separate claims: (1) that the trial court forced him to 9 argue his motion for a new trial without the assistance of counsel; 10 (2) that he was penalized for exercising his right to a trial; and 11 (3) that he was denied a trial by jury as to whether he suffered a 12 prior conviction and was ineligible for probation. 13 I. 14 Right to Counsel Petitioner contends that he was denied his Sixth Amendment 15 right to counsel when he submitted his motion for a new trial 16 because, although defense counsel was physically present, he did 17 nothing, and Petitioner himself argued the motion for new trial. 18 After his conviction, Petitioner filed a motion requesting the 19 appointment of new counsel to represent him in a new trial motion, 20 contending defense counsel had been ineffective. 21 12. 22 denied the motion to appoint conflicts counsel. 23 12. 24 court heard Petitioner’s new trial motion, which it denied. 25 Resp.’s Ex. 15 at 13. 26 27 28 Resp.’s Ex. 15 at The trial court found that counsel was not ineffective and Resp.’s Ex. 15 at On December 4, 2003, with defense counsel present, the trial In its November 5, 2007 opinion, the court of appeal found that defense counsel assisted Petitioner in his motion for new 5 1 trial by ensuring that the court would hear the motion and by 2 providing citations to Petitioner when he was reading his motion to 3 the court. 4 rejected Petitioner’s claim that he was forced to file a new trial 5 motion without the assistance of counsel. United States District Court For the Northern District of California 6 Resp.’s Ex. 15 at 13. On this basis, the court Resp.’s Ex. 15 at 13. The right to counsel is fundamental to a fair trial as 7 guaranteed by the Sixth Amendment and is binding on the states 8 under the Fourteenth Amendment. 9 335, 342 (1963). Gideon v. Wainwright, 372 U.S. In Powell v. Alabama, 287 U.S. 45, 68-69 (1932), 10 the Court recognized that “[e]ven the intelligent and educated 11 layman . . . requires the guiding hand of counsel at every step in 12 the proceedings against him. 13 he faces the danger of conviction because he does not know how to 14 establish his innocence.” 15 Without it, though he be not guilty, A defendant’s right to be represented by counsel is a 16 fundamental component of the criminal justice system. 17 States v. Cronic, 466 U.S. 648, 653 (1984). 18 has been denied and his trial prejudiced (1) if there is a complete 19 denial of counsel; (2) if counsel fails to subject the prosecution 20 to meaningful adversarial testing; or (3) if assistance is so 21 deficient that a presumption of prejudice is appropriate. 22 659-60. 23 assisting the defendant, is there a complete denial of counsel. 24 Id. at 659. 25 United A defendant’s right Id. at Only if counsel is totally absent, or prevented from The California court of appeal found that Petitioner was 26 represented by counsel for the entirety of the proceedings and, 27 specifically, that Petitioner was represented by counsel when he 28 6 United States District Court For the Northern District of California 1 presented his motion for a new trial. 2 court based this on the fact that when Petitioner presented his 3 motion for a new trial, defense counsel was present, ensured that 4 the court had consented to having Petitioner read the motion and 5 provided case citations to Petitioner. 6 court of appeal’s analysis is consistent with the Supreme Court’s 7 reasoning in Cronic. 8 prevented from assisting Petitioner. 9 unreasonable in finding that Petitioner was represented by counsel Resp.’s Ex. 15 at 13. The Resp.’s Ex. 15 at 13. The Defense counsel was not totally absent, nor The court of appeal was not 10 in his motion for a new trial, in accordance with the Sixth 11 Amendment and the Supreme Court’s rulings in Gideon and Powell. 12 Therefore, the court’s denial of Petitioner’s claim was not 13 contrary to or an unreasonable application of Supreme Court 14 authority. 15 II. 16 Exercise of Right to Trial Petitioner contends that he was penalized for exercising his 17 right to trial because of the difference between the 134 year 18 sentence imposed by the court and an initial plea bargain offer of 19 sixteen years, which he refused. 20 no new evidence was adduced between the preliminary examination and 21 the sentencing, his sentence was punishment for exercising his 22 right to trial. 23 Petitioner argues that, because In its opinion on direct review, the court of appeal, relying 24 on California law, held that a sentence based on a trial court’s 25 consideration of a defendant’s decision to go to trial instead of 26 pleading guilty is unconstitutional. 27 that nothing said by the trial court indicated that the sentence 28 7 However, the court determined 1 imposed resulted from Petitioner’s exercise of his constitutional 2 right to trial. 3 Petitioner was convicted of six counts of sexual abuse, and the 4 bargained-for sentence was offered for a plea to only one count. 5 Resp.’s Ex. 15 at 17. 6 between the initial plea offer and the ultimate sentence imposed 7 alone was not enough to demonstrate that Petitioner had been 8 penalized for exercising his right to trial. United States District Court For the Northern District of California 9 Resp.’s Ex. 15 at 16. The court found that The court concluded that the disparity The Sixth Amendment directs, in relevant part, “In all 10 criminal prosecutions, the accused shall enjoy the right to a 11 speedy and public trial.” 12 scheme that penalizes a criminal defendant for exercising his right 13 to a jury trial is unconstitutional. 14 365, 369-70 (9th Cir. 1997). 15 established that the prosecutor’s offer of an attractive sentence 16 to a defendant in return for a guilty plea does not violate the 17 Constitution. 18 The prosecutor’s interest at the bargaining table to persuade the 19 defendant to forgo his right to plead not guilty is 20 constitutionally legitimate. 21 due process even though a defendant may feel considerable pressure 22 to plead guilty in return for a more lenient penalty. 23 Lile, 536 U.S. 24, 42 (2002). 24 U.S. Const. amend. VI. A sentencing Grisby v. Blodgett, 130 F.3d However, the Supreme Court has firmly Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). Plea bargaining does not violate Id. McKune v. The court of appeal correctly reasoned that the prosecutor had 25 a constitutional incentive to offer an attractive sentence to 26 Petitioner in an effort to persuade him to accept a deal. 27 court found that the difference between Petitioner’s ultimate 28 8 The United States District Court For the Northern District of California 1 sentence and the initial offer reflected the number of counts of 2 which Petitioner was convicted. 3 new facts were discovered after the initial offer, the appellate 4 court noted that, in rejecting a plea offer, a defendant may face a 5 more severe sentence because the trial court is allowed to take 6 into consideration details from the trial at sentencing. 7 appellate court’s reasoning highlights the essential difference 8 between accepting a plea offer and exercising a right to trial, 9 which the Supreme Court recognized in Bordenkircher, 434 U.S. at Although Petitioner argues that no The 10 364 (noting that the risk of more severe punishment may factor into 11 a defendant’s decision to plead guilty but this risk analysis is 12 inevitable and permissible). 13 The court of appeal’s denial of Petitioner’s claim was not 14 contrary to or an unreasonable application of Supreme Court 15 authority. 16 III. Right to Jury Trial for Prior Conviction and Eligibility for Probation 17 Petitioner claims that, although he waived his right to a jury 18 trial, the facts that increased the penalty for his crime should 19 have been found by a jury instead of the court. Relying on 20 Apprendi v. New Jersey, 530 U.S. 466 (2000), Petitioner argues that 21 the trial court judge made a determination of fact to conclude that 22 he was not eligible for probation. 23 A. Right to Jury Trial for Prior Conviction 24 On remand from the U.S. Supreme Court, the California court of 25 appeal upheld the trial court’s sentence and rejected Petitioner’s 26 claim that the federal Constitution requires that a jury find the 27 28 9 1 existence of his prior conviction beyond a reasonable doubt. 2 Resp.’s Ex. 15 at 18-19. 3 law, in waiving his right to a jury trial, Petitioner had consented 4 to a trial of all the issues in the case before a court sitting 5 without a jury. United States District Court For the Northern District of California 6 The court found that, under California Resp.’s Ex. 15 at 19. Furthermore, because it was the fact of Petitioners’s prior 7 conviction that had enhanced his sentence and denied him 8 eligibility for probation, the court found that Apprendi did not 9 apply. 530 U.S. at 490 (holding that, other than prior 10 convictions, facts that would increase the penalty for a crime 11 beyond the statutory maximum must be submitted to a jury and proved 12 beyond a reasonable doubt). 13 U.S. Supreme Court precedent, no additional findings were required 14 to justify Petitioner’s sentence. The state court concluded that, under Resp.’s Ex. 15 at 19. 15 Although it may increase the penalty for a crime, the 16 existence of a prior conviction is not a fact that must be 17 submitted to a jury and proved beyond a reasonable doubt. 18 Apprendi, 530 U.S. at 490. 19 302-03 (2004), the Court applied its holding in Apprendi and 20 reaffirmed that the finding of a prior conviction need not be 21 submitted to a jury. 22 that California’s determinate sentencing law (DSL) violated 23 Apprendi’s brightline rule because circumstances in aggravation 24 were found by the judge, not the jury, and needed only to be 25 established by a preponderance of the evidence, not beyond a 26 reasonable doubt. 27 the Court’s exception that prior convictions need not be found by a 28 In Blakely v. Washington, 542 U.S. 296, In Cunningham v. California, the Court found 549 U.S. at 288. 10 However, Cunningham reiterated 1 United States District Court For the Northern District of California 2 jury. 549 U.S. at 274-75. Petitioner’s sentence was enhanced under California law for a 3 prior conviction of sexual abuse. 4 authority, a prior conviction is excepted from the aggravating 5 circumstances and additional factual findings that must be tried to 6 a jury. 7 it determined that neither the California nor federal Constitution 8 conferred the right to a jury trial to determine whether Petitioner 9 suffered a prior conviction. Under all U.S. Supreme Court The court of appeal correctly applied this exception when 10 The state court’s denial of Petitioner’s claim was not 11 contrary to or an unreasonable application of Supreme Court 12 authority. 13 B. 14 Petitioner claims that determining his eligibility for Right to Jury Trial for Probation Eligibility 15 probation under California Penal Code section 1203.066(c) required 16 a finding of fact other than his prior conviction. 17 section lists conditions that, if met, make probation possible for 18 certain sex offenders.1 19 was ineligible for probation pursuant to California Penal Code 20 section 1203.066(a)(5), which states that “probation shall not be 21 granted to . . . a person who is convicted of committing a 22 violation of section 288 . . . and who has been previously 23 convicted of a violation of section 288.” 24 The court found that Petitioner did not qualify for probation under That Penal Code The court of appeal found that Petitioner Resp.’s Ex. 15 at 20. 25 26 27 28 1 Because the offense took place in 2002, Petitioner’s eligibility for probation is dictated by California Penal Code § 1203.066 (2002). 11 1 California Penal Code section 1203.066(c) because it makes 2 probation available to defendants whose eligibility is determined 3 by sections 1203.066(a)(7), (8) or (9). 4 Probation is not available under section 1203.066(c) for offenders 5 who are categorized by section 1203.066(a)(5), as Petitioner was. 6 Because California law precludes a person twice convicted of 7 violating Penal Code section 288 from being eligible for probation, 8 the court denied Petitioner’s appeal on this issue. United States District Court For the Northern District of California 9 Resp.’s Ex. 15 at 20. Petitioner’s eligibility for probation is based on California 10 statutory law and, thus, this claim is not cognizable for federal 11 habeas relief. 12 Even so, the court of appeal correctly found that under California 13 Penal Code section 1203.066(a)(5), Petitioner is precluded from 14 probation based on his prior conviction. 15 contention, the court did not have to engage in any fact finding 16 and, as stated above, under Apprendi and Cunningham, Petitioner had 17 no right to a jury trial to determine whether he suffered a prior 18 conviction. 19 was not contrary to or an unreasonable application of Supreme Court 20 authority. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Therefore, the court of appeal’s denial of this claim 21 22 CONCLUSION For the foregoing reasons, the petition for a writ of habeas 23 corpus is denied. 24 close the file. 25 26 The Clerk of the Court shall enter judgment and IT IS SO ORDERED. Dated: July 22, 2010 CLAUDIA WILKEN United States District Judge 27 28 Contrary to Petitioner’s 12 United States District Court For the Northern District of California 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
