Opinion
No. 08-16353.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed October 5, 2010.
Daniel J. Broderick, Esquire, Federal Public Defender, Federal Public Defender's Office, Sacramento, CA, for Petitioner-Appellant.
Kathleen Anne McKenna, William Ke-Wei Kim, Office of the California Attorney General, Fresno, CA, for Respondents-Appellees.
Appeal from the United States District Court for the Eastern District of California, Dennis L. Beck, Magistrate Judge, Presiding. D.C. No. 1:07-CV-00366-DLB.
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
California state prisoner Ray McKinley Bowen appeals from the district court's denial of his 28 U.S.C. § 2254 petition challenging his jury-trial conviction for kidnapping, making a criminal threat, and inflicting corporal injury on a spouse or cohabitant, for which he was sentenced to 23 years, four months in prison. We have jurisdiction under 28 U.S.C. § 2253(a), and we affirm.
Bowen contends that the trial court's selection of an upper-term sentence on the kidnapping count violated his Sixth and Fourteenth Amendment rights as established in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). See Cunningham v. California, 549 U.S. 270, 288-89, 293, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) (holding that California's determinate sentencing law, permitting imposition of an upper-term sentence on the basis of aggravating circumstances not found by the jury, "violates Apprendi's bright-line rule").
It is unnecessary to decide whether Bowen's kidnapping sentence was imposed in violation of Apprendi because any error was harmless in light of Bowen's undisputed history of parole and probation violations, on which the trial court relied in part in setting Bowen's sentence. See Butler v. Curry, 528 F.3d 624, 642, 648 (9th Cir. 2008) ("Any Apprendi error [is] harmless if it is not prejudicial as to just one of the aggravating factors at issuef,]" as the presence of one such factor serves to "set the upper term as the statutory maximum."). In determining harmlessness, the question is not, as Bowen suggests, whether the trial court would have imposed an upper-term sentence on the basis of just one aggravating factor; it is rather whether the jury would likely have found one such factor beyond a reasonable doubt. See Butler, 528 F.3d at 648-49. Because there can be no question that the jury would have found Bowen's history of parole and probation violations established beyond a reasonable doubt, any Apprendi error did not have a "substantial and injurious effect" on Bowen's sentence. See Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).