Rennie Hurtado v. Dave Runnels , 428 F. App'x 704 ( 2011 )

FILED
NOT FOR PUBLICATION APR 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RENNIE HURTADO, No. 08-56761
Petitioner - Appellant, D.C. No. 06-cv-03712-PSG-CT
v.
MEMORANDUM*
DAVE L. RUNNELS, Warden; JAMES E.
TILTON, Secretary, Department of
Corrections and Rehabilitation,
Respondents - Appellees.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted April 13, 2011
Pasadena, California
Before: D.W. NELSON, BYBEE, and M. SMITH, Circuit Judges.
Petitioner-Appellant Rennie Hurtado appeals the district court’s denial of his
petition for a writ of habeas corpus. He argues that the state trial court improperly
relied on judicial fact-finding when it sentenced him to an upper-term sentence, in
violation of his Sixth Amendment right to a jury trial as established in Cunningham
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
v. California, 549 U.S. 270 (2007), and Apprendi v. New Jersey, 530 U.S. 466(2000). We hold that the California courts’ decision was not “contrary to, [and did
not involve] an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1),
nor was it “based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,” id. § 2254(d)(2). We therefore
affirm.
Hurtado correctly observes that the Supreme Court has held that California’s
sentencing scheme (at the time of his conviction) was unconstitutional. See
Cunningham, 549 U.S. at 288–89. 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) (emphasis added)); see also
Butler v. Curry, 528 F.3d 624, 643 (9th Cir. 2008).
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); accord People v. Osband, 13 Cal. 4th 622, 728
(1996). As a result, for purposes of habeas review, a California sentence does not
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violate the Constitution “if at least one of the aggravating factors on which the
[trial] judge relied . . . was established in a manner consistent with the Sixth
Amendment.” Butler, 528 F.3d at 643.
California’s sentencing scheme at the time of Hurtado’s conviction
authorized an upper-term sentence for a defendant if the trial court found that
“[t]he defendant’s 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) (2007). California law provides that a defendant can be found to
have “numerous” prior convictions if he has three or more convictions. See People
v. Searle, 261 Cal. Rptr. 898, 902 (Cal. Ct. App. 1989) (“[T]hree convictions are
‘numerous’ within the meaning of [Rule 4.421(b)(2)].”); People v. Berry, 172 Cal.
Rptr. 756, 759 (Cal. Ct. App. 1981) (“Two acts cannot be ‘numerous.’”). Because
simply counting the number of a defendant’s prior convictions does not require a
court to look beyond “the fact of a prior conviction,” Butler, 528 F.3d at 643,
California courts’ reliance on the numerousness of a defendant’s convictions as an
aggravating factor does not offend the Sixth Amendment.
Here, in affirming Hurtado’s sentence, the California Court of Appeal
counted two detained petitions as a juvenile, an April 1993 conviction for
transporting or selling narcotics, a March 1994 conviction for narcotics possession,
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a February 1995 conviction for evading a peace officer, and a June 1995 conviction
for inflicting corporal injury on a spouse or cohabitant. Hurtado challenges the
court’s reliance on his juvenile petitions. We have previously held that non-jury
juvenile adjudications do not fall within the prior conviction exception to
Apprendi. United States v. Tighe, 266 F.3d 1187, 1194–95 (9th Cir. 2001).
However, “California courts disagree with Tighe [and] conclude that Apprendi
does not preclude the use of nonjury juvenile adjudications to enhance the sentence
of an adult offender.” Boyd v. Newland, 467 F.3d 1139, 1152 (9th Cir. 2006)
(citing People v. Bowden, 125 Cal. Rptr. 2d 513, 517 (Cal. Ct. App. 2002)).
Furthermore, because Tighe “does not represent clearly established federal law ‘as
determined by the Supreme Court of the United States,’” we held that California’s
reliance on non-jury juvenile convictions for sentencing enhancement purposes
does not entitle a petitioner to habeas relief. Id. (citation omitted). Accordingly,
the California court’s inclusion of Hurtado’s juvenile petitions in its determination
of whether he had “numerous” prior convictions does not entitle him to habeas
relief.
Hurtado also contends that his April 1993 and February 1995 convictions
should have been disregarded because of California’s “dual use proscription.” See
Cal. Penal Code § 667.5(b). A petitioner is not entitled to federal habeas relief for
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errors of state law. See Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011) (citations
omitted). In any event, because the juvenile convictions were properly counted,
the state court could have relied on at least four prior convictions in determining
whether Hurtado’s criminal history reflected “numerous” prior convictions for
sentencing enhancement purposes. Accordingly, Hurtado’s sentence was not
imposed “contrary to, [and did not involve] an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,”
28 U.S.C. § 2254(d)(1), and was not “based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding,” id. §
2254(d)(2).
AFFIRMED.
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