Opinion
No. C-04-0967 PJH.
August 31, 2006
ORDER REOPENING ADMINISTRATIVELY CLOSED CASE AND DENYING PETITION FOR WRIT OF HABEAS CORPUS
Before the court is the petition for writ of habeas corpus filed by state prisoner, Antonio Gonzalez ("Gonzalez") pursuant to 28 U.S.C. § 2254. Having reviewed the parties' papers, the record, and having carefully considered their arguments and the relevant legal authorities, the court hereby DENIES the petition.
BACKGROUND
I. Procedural History
On July 29, 1998, Gonzalez was convicted after a bench trial in San Mateo County Superior Court (No. SC42858A) of the following counts:
Count One: being a "resident child molester" (California Pen. Code § 288.5) of "Jane Doe" between December 1994 and April 3, 1998;
Counts Two through Four: three instances of lewd and lascivious acts" (§ 288, subd. (a)) on "Jane Doe" between the above dates;
Count Five: a "lewd and lascivious act" on "Jane Doe" on April 3, 1998;
Count Six: "indecent exposure" (§ 314) to "Jane Doe" on April 3, 1998, with prior convictions for "indecent exposure" in September 1996 and November 1997;
Count Seven: "indecent exposure" to "John Doe" on April 3, 1998, with the same prior convictions.
Gonzalez was also charged with a prior 1977 conviction for assault with a deadly weapon (§ 245, subd. (a)) under California's "Three Strikes" Law (§ 1170.12), which the trial court found true. Accordingly, the trial court doubled his sentence and added a five-year enhancement (§ 667, subd. (a)). On September 4, 1998, the state trial court sentenced Gonzalez to 18 years and 4 months in state prison.
The trial court calculated Gonzalez's sentence as follows: (1) a six-year term for count one, violation of California Penal Code § 288.5, doubled under the "one prior strike" provision of the "Three Strikes" law (Cal. Pen. Code, § 1170.12) to 12 years; (2) a five-year enhancement for the same prior conviction; and (3) a consecutive eight-month term doubled under the "Three Strikes" law to 16 months for count seven, violation of California Penal Code § 314 (indecent exposure). The court, however, stayed six-year terms for counts two through five and a four-year term for count six under Penal Code § 654.
On March 13, 2000, the California Court of Appeal affirmed Gonzalez's convictions, but reversed his sentence, concluding that the evidence regarding the prior 1977 "serious felony" conviction (on which basis the six-year term on count one was doubled and Gonzalez's sentence enhanced by a five-year term) was insufficient. The state appellate court remanded the case for resentencing. Meanwhile, on June 2, 2000, the California Supreme Court denied Gonzalez's petition for review.
On August 18, 2000, prior to his resentencing, Gonzalez filed an ex parte motion for appointment of new counsel, which the trial court denied. At the resentencing hearing on January 23, 2001, the state trial court dismissed Gonzalez's prior conviction enhancement, but increased his term for count one, the resident child molester conviction, from the six years originally imposed to sixteen years.
The court calculated Gonzalez's sentence on remand for resentencing as follows: (1) a 16-year term for count one; (2) eight-year terms for counts two through five, stayed under § 654; and (3) three-year terms for counts six and seven, stayed under § 654.
On August 31, 2001, while Gonzalez's appeal of the state trial court's resentencing was pending before the California appellate courts, he filed a federal petition for writ of habeas corpus. This court dismissed the petition on February 8, 2002 as premature, without prejudice to his refiling once the state court proceedings were complete.
Subsequently, on September 17, 2002, the California Court of Appeal affirmed Gonzalez's resentencing, and denied another ancillary petition for writ of habeas corpus. On December 11, 2002, the California Supreme Court denied Gonzalez's second petition for review and also his petition for review of the California Court of Appeal's denial of his habeas petition. Gonzalez filed the instant federal petition for a writ of habeas corpus on March 9, 2004.
Although the state appellate court affirmed Gonzalez's subsequent sentence, it did, however, find a Johnson error, and reversed Gonzalez's convictions on counts two through six. UnderPeople v. Johnson, 28 Cal.4th 240 (2002), the California Supreme Court held that a defendant may not be convicted both of being a resident child molester during a specified period of time, and of having committed specific sexual offenses during the same time period with the same victim. Here a Johnson error occurred with respect to count one, the resident child molester charge, and counts two through four based on three instances of lewd and lascivious acts on "Jane Doe" between December 1994 and April 3, 1998. However, because the trial court stayed imposition of the sentence for counts two through six, the California Court of Appeal determined that it was unnecessary to remand to the trial court for resentencing.
On September 27, 2004, this court granted Gonzalez's request for a stay so that he could return to state court to exhaust a new claim that he asserted arose based on the United States Supreme Court's June 24, 2004 decision in Blakely v. Washington, 124 S.Ct. 2531 (2004). The San Mateo County Superior Court denied relief on November 10, 2004, and the California Court of Appeal and California Supreme Court denied review on December 14, 2004, and January 5, 2005, respectively. The United States Supreme Court denied certiorari on June 12, 2006. Gonzalez filed his amended first petition, which included the Blakely claim, on August 24, 2006.
II. Factual History
During the time period giving rise to the charges in this case, Gonzalez lived with his brother's family in a house on a large estate in Atherton, California, where Gonzalez and his brother both worked. On April 3, 1998, Gonzalez's nieces, "B" (age 13) and "Z" (age 10), and nephew "G" (age 8), returned home from school, and discovered Gonzalez's clothes strewn about in an upstairs bedroom, along with B's and Z's underwear and bras, which were torn. The children left the house and returned a few minutes later to find that their clothes and underwear had been removed.
The children then went into the garage, where they discovered Gonzalez standing in a closet. Gonzalez's nieces left the garage, at which time Gonzalez exposed his penis to his nephew, G, and asked him to touch it. G ran out of the garage. B and Z then reentered the garage and demanded to know what Gonzalez had done with their underwear.
B then left the garage, and Gonzalez pulled down his pants and again exposed his erect penis to his niece Z. Z testified that Gonzalez grabbed her hand and pulled it towards his penis. Z struggled, and Gonzalez released her hand. Z then screamed and left the garage. Z's sister, B, testified that when she told Gonzalez she would tell her parents what had happened that day, Gonzalez offered her $20 not to tell.
According to a statement Gonzalez later gave to police, Z had asked him to hold her hand, and she guided it to his penis. He acknowledged that it was wrong to have Z touch his penis, but he said he thought both he and Z were responsible.
Gonzalez's niece, Z, also testified about five other incidents in which Gonzalez had touched her, prior to the April 3, 1998 incident described above. Those incidents allegedly occurred between December 19, 1994 and April 3, 1998. First, Z testified that when she was in second grade, Gonzalez grabbed her from behind, with one arm around her belly, and touched her breasts by moving his hand around on top of her clothes. Second, approximately one month after the first incident, Gonzalez again grabbed Z from behind, with one arm around her belly, and touched her breasts by moving his hand around on top of her clothes. Z testified that she struggled to free herself, and told Gonzalez to stop. Third, Z testified that, a year later, when she was in the third grade, she was playing outside with her brother and sister, B and G, when Gonzalez touched her on the buttocks from behind. Z again told Gonzalez not to touch her. Fourth, Z testified that at the end of her third grade year, Gonzalez stood behind her and touched her vagina through her clothes. Z struggled to get away, and Gonzalez let her go. Fifth and finally, during the summer following third grade, Gonzalez allegedly touched Z on the buttocks as she was walking into the house.
The trial court found that of the five alleged incidents of touching, the first, second and fourth were done with lewd intent, as required by the California Penal Code.
The trial court's reasoning regarding why the third and fifth incidents were not committed with lewd intent is not apparent from the record before this court.
ISSUES
In his petition before this court, Gonzalez alleges the following five violations of his constitutional rights:
(1) his due process rights were violated because there was insufficient evidence to convict him of being a "resident child molester" and of child molestation;
(2) his equal protection and due process rights were violated when the state court denied his motion to appoint his desired counsel at resentencing;
(3) he received ineffective assistance of counsel when his court-appointed attorney:
a. failed to conduct an adequate investigation prior to resentencing;
b. failed to request appointment of an evaluating psychologist;
c. failed to present mitigating evidence at the resentencing hearing;
d. failed to object to the trial court's increase of his sentence on count one at resentencing;
(4) his due process rights were violated by the alleged relitigation of aggravating factors at his resentencing; and
(5) his constitutional rights were violated when the trial court imposed a sentence that violated Blakely v. Washington, 124 S.Ct. 2531 (2004).
STANDARD OF REVIEW
This court may entertain a petition for writ of habeas corpus "on behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Because the petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the provisions of that act apply here. See Lindh v. Murphy, 521 U.S. 320, 327 (1997). Under the AEDPA, a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).A state court decision is "contrary to" Supreme Court authority, falling within the first clause of § 2254(d)(1), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decided a case differently that [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-413 (2000). "Clearly established Federal law" under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). This "clearly established" law "refers to the holdings, as opposed to the dicta, of [Supreme] Court decisions as of the time of the relevant state court decision." Id.
"Under the `unreasonable application' clause" of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing leal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 64. However, this standard "requires the state court decision to be more than incorrect or erroneous." Id. at 75 For the federal court to grant habeas relief, the state court's application of the Supreme Court authority must be "objectively unreasonable."Id. The "objectively unreasonable" standard is different from the "clear error" standard in that "the gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness." Id. at 75; see also Clark v. Murphy, 331 F.3d 1062, 1068 (9th Cir. 2003). Therefore, "[i]t is not enough that a habeas court, in its independent review of the legal question, is left with a firm conviction that the state court was erroneous . . . Rather, the habeas court must conclude that the state court's application of federal law was objectively unreasonable." Andrade, 538 U.S. 63 (citation and internal quotations omitted); see also Clark, 331 F.3d at 1068.
As for state court findings of fact, under § 2254(d)(2), a federal court may not grant a habeas petition by a state prisoner unless the adjudication of a claim on the merits by a state court resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(2). The "clearly erroneous" standard of unreasonableness that applies in determining the "unreasonable application" of federal law under § 2254(d)(1) also applies in determining the "unreasonable determination of facts in light of the evidence" under § 2254(d)(2). See Torres v. Prunty, 223 F.3d 1103, 1107-1108 (9th Cir. 2000). To grant relief under 2254(d)(2), a federal court must be "left with a firm conviction that the determination made by the state court was wrong and that the one [petitioner] urges was correct." Id. At 1108.
However, when the state court decision does not articulate the rationale for its determination or does not analyze the claim under federal constitutional law, a review of that court's application of clearly established federal law is not possible.See Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000); see also 2 J. Liebman R. Hertz, Federal Habeas Corpus Practice and Procedure § 32.2, at 1424-1426 nn. 7-10 (4th ed. 2001). When confronted with such a decision, a federal court must conduct an independent review of the record and the relevant federal law to determine whether the state court's decision was "contrary to, or involved an unreasonable application of, "clearly established federal law." Delgado, 223 F.3d at 982.
When a state court does not furnish a basis for its reasoning, we have no basis other than the record for knowing whether the state court correctly identified the governing legal principle or was extending the principle into a new context. . . . [A]lthough we cannot undertake our review by analyzing the basis for the state court's decision, we can view it through the `objectively reasonable' lens ground by Williams [, 529 U.S. 362]. . . . Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. . . . Only by that examination may we determine whether the state court's decision was objectively reasonable.Id.
DISCUSSION
I. There was Sufficient Evidence to Convict Gonzalez of being a "Resident Child Molester"
Gonzalez claims he was denied his right to due process under the U.S. Constitution because he was found guilty of being a "resident child molester" in count one and of "child molestation" in counts two through four based on insufficient evidence. Specifically, Gonzalez challenges the sufficiency of the evidence of "lewd intent" required by sections 288.5 and 288(a), for which he was convicted in counts one and counts two-four. As noted earlier, the California Court of Appeal reversed Gonzalez's convictions on counts two through four pursuant to the California Supreme Court's decision in People v. Johnson. 28 Cal.4th 240. However, because the three incidents underlying those three counts, combined with the April 1998 incident, constituted the predicate "three or more acts" required for conviction under section 288.5(a) (resident child molester), the sufficiency of the evidence regarding those incidents is relevant even though Gonzalez's convictions on those counts were reversed.
California Penal Code § 288(a), on which counts two through four were based, states: "Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.
California Penal Code § 288.5(a), on which count one was based, states, "Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, orthree or more acts of lewd or lascivious conduct under Section 288 , with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years."
Gonzalez does not challenge the "lewd intent" finding with respect to the April 1998 incident, but only the incidents underlying counts two through four. See Plaintiff's Traverse, p. 5.
As discussed, the state trial court found lewd intent beyond a reasonable doubt with respect to three of the five incidents that Z testified occurred prior to the April 1998 incident. These incidents of "lewd and lascivious acts," upon which counts two through four and count one (the charge of being a "resident child molester") were based, took place between December 19, 1994 and April 3, 1998.
The facts bear repeating. In the first incident which occurred when Z was in second grade, Gonzalez grabbed Z from behind with one arm around her stomach and touched her breasts by moving his hand around on top of her clothes. In the second incident which occurred about one month later, Gonzalez again grabbed Z from behind with one arm and touched her breasts through her clothes with his other hand. Z struggled to get away and told Gonzalez he should not do that to her. In the third incident which occurred when Z was in the third grade, Gonzalez touched Z's vagina through her clothes as he stood behind her. Z tried to get away and Gonzalez let her go. There were two additional incidents in which Gonzalez touched or patted Z on the behind, once when Z was in third grade and once the summer after Z was in third grade. However, the trial court found insufficient evidence of lewd intent with respect to the latter two incidents involving the touching of Z's behind. (RT 202-203).
Gonzalez makes arguments before this court similar to those he made before the state appellate court in arguing that the evidence regarding lewd intent with respect to counts two through four was insufficient. Gonzalez emphasizes that Z's sister, B, stated that he had "never done anything like this before," and implies that Z's reports of the incidents giving rise to counts two through four may have possibly been prompted by "over-zealous inquiries." Gonzalez also contends that had Z originally perceived the pre-April 3, 1998 touchings as inappropriate, she would have reported the incidents to her parents. Instead, Gonzalez characterizes the pre-April 1998 incidents as "roughhousing" or a "wrestling type of play." He argues that there is no distinction between the touchings of Z's behind, the incidents for which the state trial court did not find lewd intent, and the touchings of Z's breast and vaginal area, for which the court did find lewd intent.
In concluding that there was sufficient evidence, the California Court of Appeal rejected each of these arguments. First, the court noted that evidence that the touchings may have occurred during play and the absence of contemporaneous complaints did not "compel the trier of fact to conclude that the acts were not accompanied by the requisite intent." Instead, based on state law, the state appellate court noted that the trier of fact must look to all of the circumstances, including the charged act, to determine whether the requisite intent was present. People v. Martinez, 11 Cal.4th 434, 444-445 (1995). "[R]elevant factors can include the defendant's extrajudicial statements, other acts of lewd conduct admitted or charged in the case, the relationship of the parties, and any coercion, bribery, or deceit used to obtain the victim's cooperation or avoid detection." Id.
The state appellate court then cited numerous factors which provided sufficient evidence for the trial court's finding of lewd intent regarding counts two through four, including: (1) that Z immediately recognized that Gonzalez's conduct was not normal play; (2) that Z struggled to get away during two of the alleged incidents; (3) that Z advised Gonzalez not to touch her in such a manner; (4) that Gonzalez attempted to bribe Z's sister, B, with $20 not to tell her parents; and (5) Gonzalez's admission that it was wrong to have Z touch his penis.
In arguing to this court in the instant federal habeas petition that his due process rights were violated, Gonzalez again emphasizes that the lewd intent for the incidents underlying counts two through four cannot be inferred from the April 1998 incident, the incident for which Gonzalez does not dispute the existence of lewd intent. Specifically, Gonzalez contends that the trial court, and the state appellate court in its affirmance, improperly inferred "lewd intent" in the three pre-April 1998 touchings from the April 3, 1998 incident in violation of state evidentiary law. Gonzalez asserts that any such inference was inappropriate given that the April 1998 touchings and the earlier touchings occurred under different circumstances.
Gonzalez relies on California Evidence Code § 1101, which provides:
(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.
(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.
(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.
California Evidence Code § 1108(a), which governs "[e]vidence of another sexual offense by the defendant" states:
Evidence of another sexual offense by defendant; disclosure; construction of section(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.
As noted, Gonzalez alleges that the earlier touchings occurred during normal play. In contrast, Gonzalez asserts that the April 1998 touchings occurred when he was extremely intoxicated and had been behaving bizarrely, including trying on the girls' underwear in their absence.
The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). A state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt therefore states a constitutional claim, see Jackson v. Virginia, 443 U.S. 307, 321 (1979), which, if proven, entitles him to federal habeas relief, see id. at 324.
A federal court reviewing collaterally a state court conviction does not determine whether the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992). Instead, the federal court "determines only whether, `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" See id. (quoting Jackson, 443 U.S. at 319). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt, may the writ be granted. See Jackson, 443 U.S. at 324;Payne, 982 F.2d at 338; Miller v. Stagner, 757 F.2d 988, 992-93 (9th Cir. 1985), amended, 768 F.2d 1090 (9th Cir. 1985); Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir. 1984).
This court concludes that the state appellate court reasonably and correctly found substantial evidence to support the trial court's finding of lewd intent with respect to the incidents underlying counts two through four, which formed a basis for Gonzalez's conviction on count one. First, the state appellate court listed sufficient evidence apart from the April 1998 incident, which supported a finding of lewd intent with respect to the pre-April 1998 incidents. As noted, this evidence included: Z's testimony (1) that she immediately recognized that Gonzalez's conduct was not normal play, (2) that she struggled to get away from Gonzalez during the second and third incidents, and (3) that she told Gonzalez not the touch her in that manner following the second incident.
Gonzalez, however, argues that B's statement to the police that Gonzalez must have been drunk since he had "never done anything like that before," and the fact that Z never reported the pre-April 1998 incidents to her parents, constitute evidence that no inappropriate touchings occurred prior to April 1998. Gonzalez's arguments are unpersuasive. A child may fail to report the incidents to a parent or sibling or delay disclosure of the incidents due to the shame, humiliation, fear and confusion often felt by a child who has been touched inappropriately by a previously-trusted adult. See e.g. United States v. Bighead, 128 F.3d 1329, 1330 (9th Cir. 1997) (expert rebuttal testimony regarding typical characteristics of child sexual abuse victims, including delayed disclosure, admissible in prosecution for sexual abuse of minor).
Gonzalez also argues that the incidents occurred in the context of horseplay, and that there was no distinction between the third and fifth incidents in which Gonzalez touched Z on her behind, for which the state trial court did not find lewd intent, and the first, second, and fourth incidents where Gonzalez fondled Z's breasts and vagina through her clothes, for which the state trial court did find lewd intent. Gonzalez therefore implies that there was no lewd intent with respect to any of the incidents prior to April 1998.
However, the state courts could reasonably have determined that there was a distinction between the incidents. It is not improbable that a child may be inadvertently touched or patted on the behind during horseplay, where no lewd intent on the part of the adult is involved. Indeed, there are other contexts in which innocent patting on the behind occurs in our society, such as in sports. In contrast, it is highly unlikely that touching a child on the breasts or vagina by an adult would be considered innocent "horseplay" or "roughhousing". Therefore, it was not unreasonable for the trial court to distinguish between the incidents; nor was the state appellate court's affirmance unreasonable. Accordingly, this claim fails.
II. Gonzalez's Sixth Amendment and Due Process Rights were not Violated by the Trial Court's Refusal to Appoint His Desired Appellate Counsel for Resentencing
Gonzalez next claims that his constitutional rights were violated when he was denied appointment of counsel of his choice at his resentencing. He claims that he was not given a fair hearing on the issue because the state trial court refused to exercise its discretion to appoint his desired counsel, and instead appointed the private defender.
A brief factual background is helpful. On Gonzalez's first appeal to the California Court of Appeal, the court appointed attorney Richard Such ("Mr. Such") to represent Gonzalez. Upon the state appellate court's remand for resentencing, Mr. Such filed a motion in San Mateo County Superior Court to be appointed to represent Gonzalez on the grounds that: (1) Gonzalez desired his representation; (2) Mr. Such had Gonzalez's confidence; and (3) Mr. Such was familiar with Gonzalez's case and had begun to prepare for the resentencing hearing by meeting with Gonzalez's family and contacting a psychologist to evaluate him. Furthermore, Mr. Such noted that Gonzalez had raised issues concerning the competency of his trial counsel (a private defender) in the appellate and related habeas corpus proceedings, and that it would therefore be inappropriate to reappoint the same trial counsel for the resentencing.
Gonzalez filed an ex parte motion for appointment of Mr. Such, which was heard by the trial court on September 21, 2000. The trial court denied Gonzalez's request and instead appointed a private defender, noting that it would be an unusual step to appoint someone else. The judge also observed that the resentencing was to be a fairly straightforward court trial, that it was unlikely that the attorney who represented Gonzalez at trial would be reappointed to represent Gonzalez again, and that Gonzalez could be competently and appropriately represented by an attorney in the private defender program. The private defender program designated Mr. Garcia as Gonzalez's attorney on remand.
Mr. Garcia was a new private defender who had not yet worked on Gonzalez's case. Mr. Morales, the original private defender who represented Gonzalez at the first trial, and to whom Gonzalez objected, was not reappointed.
On Gonzalez's second appeal, that of the trial court's resentencing, the state appellate court concluded that the trial court did not abuse its discretion in denying Gonzalez his desired counsel. The state appellate court reasoned that Gonzalez had no long-term relationship with his counsel of choice, Mr. Such, and that the prosecution did not enjoy a significant advantage because a private defender was appointed. Applying state law regarding the appointment of counsel, the state appellate court found that Gonzalez's reasons for desiring appointment of Mr. Such were not sufficient and were distinguishable from those in the state case upon which Gonzalez relied, Harris v. Superior Court, because Gonzalez's case was a simple one, and little time and expense were required to achieve familiarity with the issues. See 19 Cal.3d 786, 796-799 (1977) (objective factors concerning the appointment of an attorney, including the attorney's familiarity with the relevant factual and legal matters and the defendant's trust and confidence in the attorney built up over a substantial period of time, may make failure to appoint the attorney an abuse of discretion). Furthermore, the state appellate court found that Mr. Such's prior representation of Gonzalez would not have greatly facilitated the retrial of the prior conviction allegation and subsequent sentencing proceedings.
To the extent that Gonzalez claims before this court that the state appellate court erroneously found no abuse of discretion under state law, this claim is not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (federal habeas relief does not lie for state law errors but is limited to violations of federal constitutional rights).
Gonzalez, however, asserts that he is not claiming that the trial court abused its discretion under state law, or that he has a federal constitutional right to counsel of choice. Instead, Gonzalez claims that his due process rights were violated because he did not receive a fair hearing before the state trial court on the issue of appointment of counsel of his choice, implying a procedural due process issue.
In arguing his due process claim before this court, Gonzalez nevertheless cites the same reasons he argued before the state appellate court with respect to his claim that the trial court abused its discretion. These include: (1) Gonzalez's appellate attorney had been representing him for nearly two years and was his counsel of choice; (2) with the absence of a public defenders office, the cost to the county of his counsel of choice versus the private defender would have been the same; and (3) the judge gave no reason for not appointing Gonzalez's counsel of choice other than that it would be unusual not to appoint the private defender.
The state appellate court rejected each of these arguments in the context of Gonzalez's abuse of discretion claim. Citing state law, the state appellate court found that the appointment of counsel rests within the discretion of the trial court, and that such discretion is not abused where the trial court fails to appoint the attorney that the defendant requested, who is willing to undertake the appointment. People v. Horton, 11 Cal.4th 1068, 1098 (1995); Drumgo v. Superior Court, 8 Cal.3d 930, 934 (1973). It noted nevertheless that a trial court may abuse its discretion by adhering to a fixed policy of appointing its "own" counsel in every case, "without affording the defendant an opportunity to explain what circumstances, if any, might warrant a different appointment." People v. Horton, 11 Cal.4th 1098; People v. Chavez, 26 Cal.3d 334, 346-348 (1980) (emphasis added). However, the state appellate court found that, in Gonzalez's case, the court followed its usual procedure of appointing counsel through the private defender program only after reviewing counsel's ex parte motion and conducting a hearing on the issue.
Based on this court's review of the record, this court concludes that the state court's findings were reasonable and did not constitute an "obvious subterfuge to evade the consideration of a federal issue." See Peltier v. Wright, 15 F.3d 860, 861 — 862 (9th Cir. 1994) (federal courts generally bound by state court's construction of state laws, except in the above circumstances).
To the extent that Gonzalez presents a procedural due process claim regarding the hearing, that claim also fails. As noted by the state appellate court, and confirmed by the record in this case, although the state trial court denied Gonzalez's motion to appoint Mr. Such and chose "to follow the usual procedure of appointing counsel through the private defender program, it did so only after reading [Gonzalez's] counsel's ex parte motion and conducting a hearing at which it invited counsel to state any additional reasons for appointing [Mr. Such] to represent [Gonzalez]." At the hearing, Gonzalez was personally present and was assisted by a Spanish language interpreter. Furthermore, the state trial judge gave Mr. Such ample opportunity to present oral arguments in support of Gonzalez's motion.
The state appellate court neither ruled on nor construed Gonzalez's claim as a procedural due process issue.
The denial of a motion to substitute counsel implicates a defendant's Sixth Amendment right to counsel and is properly considered in federal habeas. Bland v. California Dep't of Corrections, 20 F.3d 1469, 1475 (9th Cir. 1994), overruled on other grounds by Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000). The Ninth Circuit has held that when a defendant voices a seemingly substantial complaint about counsel, the trial judge should make a thorough inquiry into the reasons for the defendant's dissatisfaction. Id. at 1475-76; United States v. Robinson, 913 F.2d 712, 716 (9th Cir. 1990); Hudson v. Rushen, 686 F.2d 826, 829 (9th Cir. 1982). The inquiry need only be as comprehensive as the circumstances reasonably would permit, however. King v. Rowland, 977 F.2d 1354, 1357 (9th Cir. 1992) (record may demonstrate that extensive inquiry was not necessary).
People v. Marsden, 2 Cal. 3d 118 (1970), requires the trial court to permit a criminal defendant requesting substitution of counsel to specify the reasons for his request and generally to hold a hearing. This California rule substantially parallels the one prescribed by the Ninth Circuit in Hudson v. Rushen. See Chavez v. Pulley, 623 F. Supp. 672, 687 n. 8 (E.D. Cal. 1985).
Here, Gonzalez did not seek to substitute counsel; nor did he assert a "conflict" involved with representation by the private defender. Accordingly, the procedural due process standards for substitution of counsel proceedings in a conflict situation provide guidance but are not controlling.
As noted, Gonzalez argued at the hearing that his original private defender from the trial, Mr. Morales, should not represent him at the resentencing because the issue of Mr. Morales' competence was raised on appeal and in habeas corpus proceedings before the state courts. However, a new private defender, Mr. Garcia, was appointed for Gonzalez's second appeal.
A trial court must conduct a thorough inquiry into whether the defendant was deprived of an adequate defense, and such inquiry need only be as comprehensive as circumstances reasonably permit.Hudson v. Rushen, 686 F.2d 826, 829, 831 (9th Cir. 1982) cited in King, 977 F.2d at 1357. The inquiry in the present case was at least as comprehensive as that approved by the Ninth Circuit inKing, a case involving a state prisoner's motion to substitute counsel based on an alleged conflict of interest due to the appointed public defender's fear and dislike of his client after his client assaulted him, a previously-appointed public defender, and a police officer in open court on three separate occasions.King, 977 F.2d at 1357. In King, the judge considered the defendant's complaints, posed several inquiries to the defendant, and was familiar with the factual background. Id. The Ninth Circuit found that because there was no indication that the attorney could not do his job properly in spite of the strained relationship, and because the record suggested that King was attempting to delay and disrupt the trial, the judge did not err in failing to substitute King's public defender. Id.
Here, as set forth above, the trial court considered Gonzalez's ex parte motion for appointment of counsel, and gave Gonzalez the opportunity to argue the motion. Because the judge was "satisfied that the defendant [could] be competently and appropriately represented by the private defender program," he denied Gonzalez's motion for appointment of counsel. The trial court's inquiry was informed, thorough and comprehensive, and further inquiry was unnecessary. Id.
Morever, as Gonzalez concedes, the law is clear that he had no right to counsel of his choice. Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir. 1970) (A court is not required to provide an indigent defendant with a particular attorney whom he may desire); Caplin Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989) ("The [ Sixth] Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts."); United States v. Schaff, 948 F.2d 501, 505 (9th Cir. 1991) (An indigent defendant is not entitled to an attorney who likes and feels comfortable with him); Morris v. Slappy, 461 U.S. 1, 13 (1983) (The Sixth Amendment does not guarantee meaningful relationship between accused and his counsel).
Gonzalez's Sixth Amendment and due process rights were not violated by the trial court's conduct of the hearing, nor by its refusal to appoint his desired counsel. This habeas claim therefore fails.
III. Gonzalez was not Denied Effective Assistance of Counsel.
Gonzalez also claims that he received ineffective assistance of counsel from his court-appointed attorney, Mr. Garcia, during the resentencing hearing due to: (1) counsel's failure to conduct an adequate investigation prior to resentencing; (2) counsel's failure to request appointment of an evaluating psychologist; (3) counsel's failure to present mitigating evidence at the resentencing hearing; and (4) counsel's failure to object to the trial court's increase of his sentence on count one at resentencing.
Gonzalez raised the ineffective assistance claims before the state court for the first time in his petition for writ of habeas corpus before the California Supreme Court. The court issued a "postcard denial" of the habeas petition, denying review without comment. Where the state court issues a "postcard denial," this court construes the denial as one on the merits and sufficient for exhaustion purposes. See Greene v. Lambert, 288 F.3d 1081, 1086-87 (9th Cir. 2002). Therefore, this court must conduct an independent review of the record and the relevant federal law to determine whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established federal law." Delgado, 223 F.3d at 982.
A. Federal Habeas Standard
A claim for ineffective assistance of counsel is cognizable as a claim for denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark for judging any such claim must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Id. The right to effective assistance of counsel applies to the performance of both retained and appointed counsel without distinction. See Cuyler v. Sullivan, 446 U.S. 335, 344-45 (1980).
In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, Gonzalez must establish two things. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland, 466 U.S. at 687-88. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. See Strickland, 466 U.S. at 687. Second, Gonzalez must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Gonzalez must show that counsel's errors were so serious as to deprive him of a fair trial, a trial whose result is unreliable.Strickland, 466 U.S. at 688. A reasonable probability is a probability sufficient to undermine confidence in the outcome.Id.
A defense attorney has a general duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. See Strickland, 466 U.S. at 691; Turner v. Duncan, 158 F.3d 449, 456. Strickland directs that "`a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.'" Silva v. Woodford, 279 F.3d 825, 836-37 (9th Cir. 2002) (quotingStrickland, 466 U.S. at 491).
Where the decision not to investigate further is taken because of reasonable tactical evaluations, the attorney's performance is not constitutionally deficient. See Siripongs v. Calderon, 133 F.3d 732, 734 (9th Cir. 1998). Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable. See Cacoperdo v. Demosthenes, 37 F.3d 504, 508 (9th Cir. 1994) (decision whether to introduce medical evidence largely question of professional judgment).
The duty to investigate and prepare a defense does not require that every conceivable witness be interviewed. Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). A claim of failure to interview a witness cannot establish ineffective assistance when the person's account is otherwise fairly known to defense counsel. Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986). When the record shows that the lawyer was well-informed, and the defendant fails to state what additional information would be gained by the discovery he now claims was necessary, an ineffective assistance claim fails. Id. A defendant's mere speculation that a witness might have given helpful information if interviewed is not enough to establish ineffective assistance.See Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir. 2001),amended, 253 F.3d 1150 (9th Cir. 2001), called into doubt on different basis, Lockhart v. Terhune, 250 F.3d 1223, 1231 (9th Cir. 2001).
A difference of opinion as to trial tactics does not constitute denial of effective assistance, see United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981), and tactical decisions are not ineffective assistance simply because in retrospect better tactics are known to have been available. See Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir. 1984). Tactical decisions of trial counsel deserve deference when: (1) counsel in fact bases trial conduct on strategic considerations; (2) counsel makes an informed decision based upon investigation; and (3) the decision appears reasonable under the circumstances. See Sanders, 21 F.3d at 1456. Judicial scrutiny of counsel's performance must be highly deferential, and a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689. The relevant inquiry is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. See Siripongs, 133 F.3d at 736; Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998).
B. Analysis
In the present case, after the trial court denied Gonzalez's motion to appoint his desired counsel, Mr. Such, Mr. Such wrote a five-page letter, which included his recommendations regarding the sentencing hearing, to Gonzalez's appointed attorney, Mr. Garcia. Petitioner's Brief, Exhibit L. Mr. Such's letter suggested that Mr. Garcia should interview Gonzalez's family members as potential witnesses at the resentencing hearing. In addition, Mr. Such recommended that Mr. Garcia make an ex parte request for the appointment of a psychologist in order to determine possible brain damage, to assess whether Gonzalez had the personality characteristics of a `pedophile,' and to assess whether Gonzalez would be likely to commit other crimes against children.
In addition to the five-page letter, Mr. Garcia also had an hour-long telephone conversation with Mr. Such the night before the resentencing was scheduled, during which Mr. Such offered to assist Mr. Garcia with the case without compensation from the court. There is no further information in the record as to what, if any, further assistance Mr. Such provided in the case.
However, Mr. Garcia did not request appointment of an evaluating psychologist and did not interview or present evidence from Gonzalez's family at the hearing. Instead, Mr. Garcia emphasized Gonzalez's alcohol abuse, noting that the molestations occurred while Gonzalez was under the influence, and argued that Gonzalez's crimes were mitigated on this basis.
i. Investigation and Mitigating Evidence
Gonzalez argues that he showed indications of mental health problems, which Mr. Garcia should have further investigated. He contends that a mental health examination may have revealed that he did not have a problem that made recidivism likely.
Gonzalez contends that his bizarre behavior of trying on girls' underwear and subsequent odd behaviors, combined with his drinking problems, indicated mental illness.
Gonzalez argues that the following facts indicate the reduced likelihood that he would re-offend: (1) that he was 45 years old when arrested and had not been previously arrested for a crime against children; (2) that B testified that he had never done anything like this before; (3) that his family welcomed him among their children; (4) that the children in the case sought him out rather than vice versa; (5) that the trial court noted that his § 288 violation was less serious than typical cases; (6) that his previous convictions for indecent exposure involved adult women; and (7) that it is unlikely that pedophilic tendencies would "suddenly emerge in a middle-aged man."
However, this court agrees with the state that Gonzalez's claim sets out a mere difference in tactics between two defense attorneys and does not meet the Strickland test for ineffective assistance. First, Mr. Garcia had a letter from Mr. Such detailing the investigation that had already been conducted, and could reasonably have relied on the letter to conclude that an adequate investigation had already been completed. Additionally, Mr. Garcia was not required to agree with Mr. Such's tactical recommendations, and could also have reasonably rejected the suggestions.
Reasonable professional judgment supports Mr. Garcia's decision not to conduct further investigation. Strickland, 466 U.S. at 690-691 ("[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation). Having received Mr. Such's letter, Mr. Garcia was aware of the potential testimony that Gonzalez's relatives could have provided at the resentencing hearing. His decision not to call family members as witnesses may appropriately be considered a tactical decision. See Siripongs, 133 F.3d at 736 (relevant inquiry is not what defense counsel could have pursued, but whether choices made were reasonable). Additionally, such testimony from family members may be discounted due to bias. Cf.Bergmann v. McCaughtry, 65 F.3d 1372, 1380 (7th Cir. 1995) (finding decision not to call family members as witnesses a reasonable strategic decision because of their inherent bias).
Furthermore, the record reveals no indication that Gonzalez suffered from mental illness, and Gonzalez's family members confirmed in their interviews with Mr. Such that they likewise observed no indication of mental illness. In addition, Gonzalez's probation report contains no discussion of mental illness. In the absence of evidence of mental illness, Mr. Garcia was not deficient in rejecting Mr. Such's recommendation and choosing not to pursue a mental illness defense. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999) ("A decision not to pursue testimony by a psychiatric expert, when no mental state defense seems likely, is not unreasonable under Strickland.") Additionally, absent evidence that a psychiatric examination would have revealed mental illness, which he has not provided, Gonzalez cannot prove prejudice in his case. See Grisby v. Blodgett, 130 F.3d 365, 372-73 (9th Cir. 1997) ("Speculation about what an expert could have said is not enough to establish prejudice."); Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001).
At the resentencing hearing, Mr. Garcia orally presented mitigating factors. He pointed out that Gonzalez had no "strikes," that Gonzalez had already been punished for his previous criminal history, and that Gonzalez had a problem with alcohol and engaged in the conduct at issue only when under the influence of alcohol, an argument that Mr. Garcia made at Gonzalez's direction. Finally, Mr. Garcia pointed out that Gonzalez was 47 years old, and had never been committed to the California Department of Corrections. Presentation of these mitigating factors was an objectively reasonable strategy, and counsel's performance cannot be characterized as deficient.
a. Gonzalez is not Entitled to an Evidentiary Hearing
In his traverse, Gonzalez also suggests that he is entitled to an evidentiary hearing on this issue. He requested an evidentiary heating before the state court, see Exh. 11 at 5, but the California Supreme Court declined to order one. Presumably, the court determined that Gonzalez's verified petition, including the accompanying declarations, did not make out a prima facie case entitling him to an evidentiary hearing. See 5 Witkin, Cal. Crim. Law 3d, § 227, at 352 (2000 ed) (citing People v. Jackson, 618 P.2d 149, 164 (Cal. 1980)) (if the petition fails to reveal facts sufficient to make out a prima facie case, request for evidentiary hearing may be summarily denied), overruled on other grounds by People v. Cromer, 24 Cal.4th 889, 901 (2001).
"A state habeas petitioner is entitled to an evidentiary hearing on a claim if he did not receive a full and fair evidentiary hearing in state court and if he alleges facts that, if proven, would entitled him to relief." Turner v. Calderon, 281 F.3d 851, 890 (9th Cir. 2002) (citations omitted). There is no "per se rule requiring an evidentiary hearing whenever a petitioner has made out a `colorable claim' of cause." Id. (citation omitted). "Rather, a petitioner must establish that his allegation . . ., if proven, would establish a constitutional deprivation." Id. (citation omitted). The Ninth Circuit has held that "[e]ntitlement to an evidentiary hearing based on alleged ineffective assistance . . . requires a showing that if [the petitioner's] allegations were proven at the evidentiary hearing, deficient performance and prejudice would be established." Id.
Gonzalez suggests that an evidentiary hearing would allow him to develop evidence regarding the possibility of a contributing mental illness. However, Gonzalez ignores the fact that the issue before this court is not Gonzalez's mental state or competence, but his trial counsel's alleged failure to conduct an adequate investigation into his mental state at sentencing. There is no factual dispute regarding his trial counsel's investigation; and Gonzalez has not shown how factual development would establish his counsel's allegedly deficient performance or prejudice. Accordingly, his request for an evidentiary hearing is likewise denied.
ii. Failure to Object
Gonzalez also contends that his trial counsel rendered ineffective assistance by failing to object to the increased term at resentencing. This claim, however, ignores the arguments that counsel did make at the hearing. Mr. Garcia argued to the court at the resentencing hearing that the lower term should be imposed due to the "de minimus" nature of Gonzalez's § 288 violation. In spite of counsel's argument, the trial court chose to impose the upper term.
At the hearing, the state trial court found numerous aggravating factors as well as some mitigating factors, but concluded that the aggravating circumstances outweighed the mitigating factors. The judge therefore imposed the upper term. The aggravating factors included: (1) Gonzalez's prior convictions; (2) Gonzalez's poor performance on probation in the past; and (3) the evidence of planning in the present case. The mitigating circumstances included: (1) that the prior conduct giving rise to the 288.5 charge was found to be less serious than typical 288 violations; and (2) Gonzalez had never been to prison before. At the original sentencing, the state trial court judge found that, as a second strike case, a double midterm served at 80 percent would result in a virtual life sentence. He found this to be an additional mitigating factor and therefore imposed the lower term. After the prior strike was dismissed, this mitigating factor was no longer present. Therefore, at the resentencing, the aggravating factors outweighed the mitigating factors, resulting in the upper term.
Because Mr. Garcia's request for a lower term was rejected by the trial court, it is inconceivable that an objection to the higher term would have been successful. Accordingly, Gonzalez is unable to show either deficient performance or prejudice with respect to this claim, and the state court's rejection of his ineffective assistance of counsel claim is neither contrary to, nor an unreasonable application of Strickland.
IV. Gonzalez's Right to Due Process was Not Violated by the Trial Court's Imposition of the Upper Term on Count One at Resentencing.
Finally, Gonzalez claims that he was denied his right to due process when the trial court reconsidered the aggravating factors and appropriate sentence on count one at resentencing. Gonzalez claims that relitigation of his sentence violates principles of res judicata.
As noted, at Gonzalez's original sentencing hearing on September 3, 1998, the court sentenced Gonzalez to the lower term for count one, noting that this case involved less serious conduct than that seen in other § 288.5 cases. The court then doubled the term and added a five-year enhancement due to Gonzalez's prior serious felony conviction under California's Three Strikes law. The court also included an additional 16-month sentence for count seven, such that the original final sentence was 18 years and four months. At the resentencing hearing on January 23, 2001, however, the court increased Gonzalez's term for count one from the lower six-year term to the upper sixteen-year term. The terms for all other counts were stayed.
As discussed, in the first appeal, the California Court of Appeal overturned the original sentence, and remanded the case for retrial of the prior serious felony enhancement and strike allegation and for resentencing if it could not be proved. On remand, the trial court dismissed the allegation of prior serious felony conviction.
Gonzalez argues here that the trial court's original determination that the lower term was appropriate was an implicit determination that the mitigating factors outweighed the aggravating factors, and that the trial court's later determination to the contrary offended equitable principles of res judicata and violated his due process rights. Gonzalez asserts that, at the original sentencing hearing, the trial court's imposition of the lower term constituted a factual finding akin to "acquitting" Gonzalez of the upper and middle terms. Therefore, Gonzalez contends that when the trial court's sentence on count one, the lower term, was not challenged on appeal, it became final and is therefore entitled to res judicata effect.
Here, and in his state appeal, Gonzalez relied on a state court decision in which the state appellate court held that principles of res judicata were violated by a redetermination that defendant's prior federal bank robbery conviction was a "serious felony." People v. Mitchell, 81 Cal. App.4th 132 (2000). Gonzalez argues that in the present case, the weighing of the aggravating versus mitigating factors involved an evidentiary process at the original sentencing hearing in which the prosecution had a full and fair opportunity to present its case. Gonzalez further asserts that the prosecution had the opportunity to appeal the court's determination to impose the lower term and chose not to.
The state appellate court rejected the instant res judicata and due process claims. The court concluded that it was not fundamentally unfair for the trial court to revisit Gonzalez's sentence on count one, and to reconsider the mitigating and aggravating factors in light of the newly dismissed convictions as long as Gonzalez was not subjected to an increase in the aggregate term. Moreover, the state appellate court determined that it was questionable whether the California law cited by Gonzalez applied to the trial court's discretionary sentencing choice at issue in this case.
The state appellate court further noted that even if the case relied on by Gonzalez, Mitchell, applied, the state court's reasoning in Mitchell should be rejected in light of its subsequent analysis in People v. Scott, which discredited theMitchell holding. 85 Cal.App.4th 905 (2000) (the principles of res judicata do not apply until there has been a final determination on the merits, which does not occur simply because a finding was made in an ongoing proceeding; conclusion that there is not sufficient evidence to support an allegation of prior conviction of serious felony is only a determination of defendant's continuing status, not an acquittal, and the prosecution is entitled to reallege and retry this as many times as is relevant). Following the state appellate court's decision in Gonzalez's case, Mitchell was explicitly overruled by the California Supreme Court in People v. Barragan. 32 Cal.4th 236 (2004) (in a noncapital sentencing context, retrial of a prior conviction allegation is not barred by double jeopardy clause of the federal Constitution, fundamental fairness doctrine or res judicata principles.)
The state appellate court's decision comports with federal law. The Ninth Circuit has held that a resentencing mandate from an appellate court erases the entire initial sentence and authorizes a district court to impose any sentence which could have been lawfully imposed originally. Kennedy v. United States, 330 F.2d 26, 29 (9th Cir. 1964); Cf. id. at 27 (however, on resentencing the trial court may not increase or make more severe the valid portions of the sentence originally imposed where service of the legal portions of the sentence has commenced). Accordingly, the state appellate court's determination that the trial court was free to reconsider the overall length of Gonzalez's sentence upon resentencing, as long as the resulting overall sentence was not increased, was reasonable.
V. The Sentence Imposed by the Trial Court does not violate Blakely
Gonzalez also argues that the trial court's sentence violatedBlakely because it improperly found aggravating facts which increased his sentence, thus denying his right to a jury trial on those facts. In denying Gonzalez's state habeas petition, the superior court noted that Gonzalez consented to a court trial and waived his right to trial by jury. Accordingly, the state court found that he voluntarily waived the right to have a jury determine the additional facts that were used to enhance his sentence. Exh. R, Amended Petition.
In Blakely, the United States Supreme Court held that a state habeas petitioner's sentence, enhanced pursuant to the state of Washington's sentencing guidelines based on additional findings by the trial court, violated the petitioner's Sixth Amendment rights. 124 S.Ct. at 2534-38. In so holding, the Court restated its holding announced in Apprendi, that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Blakely, 124 S.Ct. at 2536 (citing Apprendi, 530 U.S. at 490).
Here, the court need not determine whether Gonzalez's waiver of a jury trial also waived his right to a jury on sentencing enhancements because Gonzalez is not entitled to relief sinceBlakely does not apply retroactively to the relief he seeks on collateral review. See Cook v. United States, 386 F.3d 949 (9th Cir. 2004) ("the Supreme Court has not made Blakely retroactive to cases on collateral review"); accord Cooper-Smith v. Palmateer, 397 F.3d 1236, 1246 (9th Cir. 2005).
CONCLUSION
By this order, this matter, previously closed for administrative purposes, is REOPENED. For the reasons set forth above, Gonzalez's petition for a writ of habeas corpus is DENIED. This order fully adjudicates the motion listed at No. 1 of the clerk's docket for this case and terminates all other pending motions. The clerk shall close the file.