SUSAN ILLSTON, District Judge
Alton A. King, a prisoner in the custody of the California Department of Corrections, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 2008 conviction from the Santa Clara County Superior Court. This matter is now before the Court for consideration of the merits of the petition. For the reasons discussed below, the petition is DENIED.
King was convicted in Santa Clara County Superior Court of continuous sexual abuse of a child under fourteen years in violation of California Penal Code § 288.5(a) and lewd and lascivious act on a child under fourteen in violation of California Penal Code § 288(a). The following factual background is taken from the order of the California Court of Appeal:
1108 Evidence
On March 25, 2008, petitioner was charged with: (1) count one, lewd and lascivious act on a child, in violation of California Penal Code section 288(a), against C. Doe; (2) count two, continuous sexual abuse of a child under fourteen years in violation of California Penal Code section 288.5(a), against D. Doe, committed between August 23, 1993 and March 29, 1995; and (3) count three, lewd and lascivious act on a child under fourteen in violation of California Penal Code section 288(a), against D. Doe, committed between March 30, 1996 and April 6, 1996. Lodgement, Ex. 1, Vol. 2, RT at 329-336. On April 2, 2008, a jury convicted petitioner on counts two and three.
On April 30, 2008, petitioner filed a timely notice of appeal to the California Court of Appeal for the Sixth District. Lodgement, Ex. 1, Vol. 2, RT at 443. On December 15, 2009, the Court of Appeal affirmed the trial court's judgement. Lodgement, Ex. 6. Petitioner sought review from the California Supreme Court on January 24, 2010. Lodgement, Ex. 7. The California Supreme Court denied review on March 10, 2010. Lodgement, Ex. 8.
On June 7, 2011, petitioner filed the "mixed" petition for habeas corpus review that is currently before the Court. Docket No. 1, Petition. The petition contained six claims that were exhausted on direct review and three that petitioner did not exhaust. Id. On March 5, 2012, the Court issued an order striking the three unexhausted claims from the petition. Docket No. 10 at 2-3.
In the six remaining claims, petitioner asserts that the trial court: (1) improperly based venue on a law that violates the Ex Post Facto Clause; (2) improperly admitted evidence of uncharged offenses in violation of petitioner's right to due process; (3) improperly instructed the jury in violation of his right to due process; (4) improperly admitted expert testimony in violation of his right to due process and his rights under the confrontation clause; (5) improperly excluded impeachment evidence in violation of his right to present a defense; (6) improperly sentenced petitioner to an upper term in violation of his right to due process and his right to a jury trial.
This Court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in Santa Clara County, California, within this judicial district. 28 U.S.C. §§ 84, 2241(d).
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), ©. The petition contains six claims that were exhausted on direct review and three claims that petitioner failed to exhaust. On March 5, 2012, the Court issued an order striking the three unexhausted claims from the petition. See Docket No. 10 at 2-3. Accordingly, the Court will address the six exhausted claims below.
This Court may entertain a petition for writ of habeas corpus "in 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). The petition may not be granted with respect to any claim that was adjudicated 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).
"Under the `contrary to' clause, a federal habeas court may grant the writ 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 decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).
"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decision but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
Petitioner contends that his convictions as to counts two and three violate the Ex Post Facto Clause of the United States Constitution. Petition at 8.
In California, the general rule for venue is that, absent a statutory exception, venue in a criminal proceeding is set in the county or judicial district in which the crime was committed. See Cal. Penal Code § 777; People v. Simon, 25 Cal.4th 1082, 1093-94 (2001). California Penal Code § 784.7 is a statutory exception to that general rule. See Cal. Penal Code § 784.7. This section gives courts the authority to consolidate in a single venue trials of multiple offenses for crimes such as domestic violence, child abuse or molestation involving the same defendant. See People v. Betts, 34 Cal.4th 1039, 1059 (2005); Price v. Sup. Court, 25 Cal.4th 1046, 1071(2001) ("Section 784.7 creates a multicounty venue for trial of offenses involving sexual or child abuse by the same defendant against the same victim."). As petitioner points out, section 784.7 was not in effect at the time he committed the criminal acts.
The California Court of Appeal rejected petitioner's Ex Post Facto Clause challenge to the prosecution's reliance on section 784.7. First, the Court of Appeal explained that section 784.7 was not being applied retroactively because a new law addressing the conduct of trial has only a prospective effect, as it is only applied to trials occurring after the law's effective date. Lodgement, Ex. 6 at 14-15. Second, the Court of Appeal held that section 784.7 merely reflects a procedural change in the law, i.e., it did not alter the definition of criminal conduct or increase the punishment for a crime. Id. at 15-16.
Article I, section 10 of the United States Constitution prohibits States from passing any ex post facto law. U.S. Const. art. I, § 10, cl. 1. "To fall within the ex post facto prohibition, a law must be retrospective—that is, `it must apply to events occurring before its enactment'—and it `must disadvantage the offender affected by it,' by altering the definition of criminal conduct or increasing the punishment for the crime." Lynce v. Mathis, 519 U.S. 433, 441 (1997) (citations omitted); see also Collins v. Youngblood, 497 U.S. 37, 43 (1990) ("Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts."). Generally, a law that changes the procedure by which a case is adjudicated does not violate the Ex Post Facto Clause even if it disadvantages the defendant. See Collins, 497 U.S. at 45. However, a legislature cannot not immunize a law from scrutiny under the Ex Post Facto Clause simply by labeling it procedural. Id. A procedural change in the law may constitute an ex post facto violation if it affects matters of substance by depriving a defendant of substantial protections with which the existing law surrounds the person accused of the crime. Id. The Supreme Court has explained that a law affects matters of substance if (1) it punishes as a crime an act previously committed, which was innocent when done; (2) it makes more burdensome the punishment for a crime, after its commission; or (3) it deprives one charged with crime of any defense available according to law at the time when the act was committed. Id. (quoting Beazell v. Ohio, 269 U.S. 167, 169-70 (1925)). "In Carmell v. Texas, 529 U.S. 513 (2000), the [Supreme] Court added that a law which `alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender' also violates the [Ex Post Facto] Clause." Wilson v. Belleque, 554 F.3d 816, 831 n.4 (9th Cir. 2009) (quoting Carmell, 529 U.S. at 530, 534-35).
Here, the prosecution's reliance on section 784.7 did not violate the Ex Post Facto Clause because the enactment of section 784.7 was merely a change in the procedural law governing venue. See People v. Posey, 32 Cal.4th 193, 200 (2004) ("[V]enue is a procedural question involving the appropriateness of a place for a defendant's trial on a criminal charge, and not a substantive question relating to the defendant's guilt or innocence of the crime charged."); Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 512-13 (9th Cir. 1988) (stating that issues of venue are procedural). As the Court of Appeal noted the enactment of 784.7 did not alter the definition of criminal conduct or increase the punishment for a crime. The enactment of 784.7 also did not deprive petitioner of any available defense or substantively alter the legal rules of evidence in order to convict petitioner. Section 784.7 merely "creates a multicounty venue for trial of offenses involving sexual or child abuse by the same defendant against the same victim." Price v. Sup. Court, 25 Cal.4th 1046, 1071(2001). Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court. Therefore, petitioner is not entitled to habeas relief on this claim.
Petitioner contends that the trial court improperly admitted evidence of uncharged sexual misconduct in violation of his due process rights. Petition at 8. Petitioner argues that this evidence was so unduly prejudicial that it allowed the jury to convict him based solely on his propensity to commit sexual misconduct.
During his criminal proceedings, the trial court allowed three witnesses to testify, under California Evidence Code §§ 1108 and 1101, regarding the sexually abusive relationships they had with petitioner when they were between the ages of fourteen and seventeen. Lodgement, Ex. 2, Vol. 5, RT at 516-521, 580, 562. In the trial at issue, petitioner was not charged with crimes against any of the three witnesses. Petition at 8. However, in a prior proceeding, petitioner was found guilty of molesting two of the three witnesses. See Lodgement, Ex. 3, App. Brief at 12. On direct review, the California Court of Appeal held that the admission of this evidence did not violate petitioner's due process rights because the California Supreme Court has held that the admission of evidence of a criminal's propensity does not offend fundamental due process principles. Lodgment, 6 Ex. at 19-20 (citing People v. Falsetta, 21 Cal.4th 903, 914-15 (1999)).
"Simple errors of state law do not warrant federal habeas relief." Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). "[F]ailure to comply with the state's rules of evidence is neither a necessary nor a sufficient basis for granting habeas relief." Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). The improper admission of evidence will only provide a basis for habeas relief if "`it rendered the trial fundamentally unfair in violation of due process.'" Holley, 568 F.3d at 1101. Evidence introduced by the prosecution will often raise more than one inference, some permissible, some not, and it is up to the jury to sort out the inferences in light of the court's instructions. Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). "Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Id. (emphasis in original).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") further restricts this already stringent standard. The Ninth Circuit has explained that, "[u]nder AEDPA, even clearly erroneous admissions of evidence that render a trial fundamentally unfair may not permit the grant of federal habeas corpus relief if not forbidden by `clearly established federal law,' as laid out by the Supreme Court." Holley, 568 F.3d at 1101. Where the Supreme Court has not adequately addressed a claim, a court cannot use precedent from a lower court to find a state court ruling unreasonable. Carey v. Musladin, 549 U.S. 70, 77 (2006).
First, even assuming that the evidence admitted by the court was purely propensity evidence and was not relevant to any other issue, AEDPA precludes federal habeas relief because the United States Supreme Court has expressly left open the question of whether the admission of propensity evidence violates due process. See Estelle v. McGuire, 502 U.S. at 62, 75 n.5 (1991) ("[W]e express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of `prior crimes' evidence to show propensity to commit a charged crime."); see also Mejia v. Garcia, 534 F.3d 1036, 1047 (9th Cir. 2008) ("[T]he United States Supreme Court has never established the principle that introduction of evidence of uncharged offenses necessarily must offend due process."). Because the Supreme Court has elected to leave this an open issue, a trial court's decision to admit propensity evidence does not violate clearly established federal law as determined by the Supreme Court. See Mejia, 534 F.3d at 1046; Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir. 2008).
Second, the admission of the evidence did not violate petitioner's due process rights because the jury could draw permissible inferences from the evidence. Under California law, prior crimes evidence is admissible to prove motive, opportunity, intent, preparation, plan, or identity. Cal. Evid. Code § 1101(b). At trial, the prosecutor sought to admit evidence of the uncharged sexual misconduct in hopes that the similarity between the charged and uncharged offenses would show petitioner's intent to commit the charged offenses. As the Court of Appeal emphasized, the uncharged sexual conduct was sufficiently similar to establish petitioner's intent based on the "nature of the acts, the location of the abuse, the age and gender of the victims, and their association with appellant's church and the school attended by his children." Lodgement, Ex. 6 at 23. As the Ninth Circuit explained in Jammal, "evidence introduced by the prosecution will often raise more than one inference"; the admission of evidence only violates the Due Process clause "if there are no permissible inferences the jury may draw from the evidence." 926 F.2d at 920 (emphasis in original). Here, the evidence of the uncharged offenses was permissible to establish petitioner's intent to commit the charged offenses. See Cal. Evid. Code § 1101(b). Therefore, the admission of the evidence did not violate petitioner's due process rights.
Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court. Therefore, petitioner is not entitled to habeas relief on this claim.
Petitioner argues that jury instruction CALCRIM No. 1191, which sets forth how a jury may consider evidence of uncharged offenses, violated his due process rights by permitting the jury to find him guilty based solely on his propensity to commit an offense. Petition at 8-9. The California Court of Appeal rejected this argument and held that the instruction contained in CALCRIM No. 1191 is constitutional. Lodgement, Ex. 6 at 24-26 (citing People v. Reliford, 29 Cal.4th 1007 (2003); People v. Schnabel, 150 Cal.App.4th 83, 87 (2007)).
To obtain federal relief for alleged errors in a jury instruction, the petitioner must show that the "`ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.'" See Estelle v. McGuire, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). "Even if there is some `ambiguity, inconsistency, or deficiency' in the instruction, such an error does not necessarily constitute a due process violation." Waddington v. Sarausad, 555 U.S. 179, 190 (2009). In reviewing an instruction, the inquiry is not how reasonable jurors could or would have understood the instruction; rather, the court must inquire whether there is a "reasonable likelihood" that the jury has applied the challenged instruction in a way that violates the Constitution by, for example, relieving the State of its burden of proving every element of the crime beyond a reasonable doubt. See id. at 190-91; Estelle, 502 U.S. at 72.
The challenged jury instruction, CALCRIM No. 1191, gave the jury specific instructions on how to consider the uncharged offenses. CALCRIM No. 1191 explicitly instructed the jury that if they found that defendant committed the uncharged offenses, they could conclude, but were not required to conclude, "that the defendant was disposed or inclined to commit sexual offenses." They were cautioned, however, that the uncharged offenses are ". . . only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the crimes charged in counts 1, 2 or 3." Lodgement, Ex. 1, Vol. 2, RT at 356; accord CALCRIM No. 1191. The instruction also explains that "[t]he People must still prove each element of every charge beyond a reasonable doubt." Id. Petitioner fails to point to anything in CALCRIM No. 1191 that implies that the jury could convict petitioner based solely on his propensity to commit sexual misconduct. As such, there is no constitutional defect in the jury instruction, and there is no likelihood that the jury applied the instruction in a way that violates the Constitution. Therefore, the trial court's use of CALCRIM No. 1191 did not violate petitioner's due process rights. See Kralovetz v. Grounds, No. C 11-1552 JSW (PR), 2014 U.S. Dist. LEXIS 39532, at *44-46 (N.D. Cal. Mar. 25, 2014) (holding that the petitioner was not entitled to habeas relief based on the trial court's use of CALCRIM 1191); Rodriguez v. Wanda, C-13-0015-EMC, 2013 U.S. Dist. LEXIS 173489, at *14-23 (N.D. Cal. Dec. 11, 2013) (same); see also Schultz v. Tilton, 659 F.3d 941, 943-45 (9th Cir. 2011) (denying petitioner's claim based on the use of the prior version of CALCRIM No. 1191, CALJIC NO. 2.50.01, because the jury instruction "made clear that [the defendant] could be convicted only if the evidence as a whole proved [him] guilty beyond a reasonable doubt of the charged crime").
Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court. Therefore, petitioner is not entitled to habeas relief on this claim.
Petitioner contends that the admission of the testimony of Carl Lewis, an expert on Child Sexual Abuse Accommodation Syndrom ("CSAAS"), violated his right to confrontation and his right to present a defense under the Sixth and Fourteenth Amendments. Petition at 9. Petitioner argues that this type of testimony has been criticized by the Ninth Circuit, and it has been found to be an impermissible way of bolstering the credibility of a child witness. Id. (citing Franklin v. Henry, 122 F.3d 1270, 1273 (9th Cir. 1997); Docket No. 24, Traverse at 13-14. The California Court of Appeals rejected this claim, holding that petitioner had failed to properly object to the admission of the CSAAS evidence and that the admission of the evidence in the case was appropriate. Lodgement, Ex. 6 at 28-29.
Under federal review, "[t]he admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process." Holley, 568 F.3d at 1101. Evidence introduced by the prosecution will often raise more than one inference, some permissible, some not, and it is up to the jury to sort out the inferences in light of the court's instructions. Jammal, 926 F.2d at 920. "Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process." Id. (emphasis in original).
AEDPA further restricts this already stringent standard. The Ninth Circuit has explained that, "[u]nder AEDPA, even clearly erroneous admissions of evidence that render a trial fundamentally unfair may not permit the grant of federal habeas corpus relief if not forbidden by `clearly established federal law,' as laid out by the Supreme Court." Holley, 568 F.3d at 1101. Where the Supreme Court has not adequately addressed a claim, a court cannot use precedent from a lower court to find a state court ruling unreasonable. Musladin, 549 U.S. at 77.
Contrary to petitioner's assertions, the Ninth Circuit has found that the admission of CSAAS evidence in child-sexual-abuse cases is proper when "the testimony concerns general characteristics of the victims and is not used to opine that a specific child is telling the truth." Brodit v. Cambra, 350 F.3d 985, 991 (9th Cir. 2003) (citing United States v. Bighead, 128 F.3d 1329 (9th Cir. 1997) (per curiam); United States v. Antone, 981 F.2d 1059 (9th Cir. 1992)). Further, the Ninth Circuit has also rejected the contention that CSAAS testimony improperly bolsters the credibility of child witnesses and precludes effective challenges to the truthfulness of their testimony — the very arguments that Petitioner advances here." Id. Therefore, petitioner's claim is foreclosed by the Ninth Circuit's decision in Brodit. The trial court only allowed the CSAAS expert to testify about the general nature of the syndrome. See Lodgement, Ex. 2, Vol. 7 RT at 735-763. The expert explained to the jury that he did not interview any of the witnesses nor did he know the specific details of the case. Id. at 744. The trial court also gave specific limiting instructions that the testimony was not evidence that petitioner committed the crimes charged against him. Id. at 33. Thus, the CSAAS testimony complied with the limits set out by the Ninth Circuit in Brodit, and the admission of the testimony did not violate petitioner's due process rights. See Nuno v. Davey, No. 11-02446 SBA (PR), 2014 U.S. Dist. LEXIS 98945, at *30-32 (N.D. Cal. Jul. 21, 2014) (rejecting petitioner's challenge to the admission of CSAAS evidence as foreclosed by Brodit). In addition, petitioner cites to no Supreme Court authority to support his claim that the trial court's decision to admit the CSAAS evidence violated his right to due process. Id. at *31.
Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court. Therefore, petitioner is not entitled to habeas relief on this claim.
Petitioner contends that the trial court violated his right to present a defense under the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment by precluding him from establishing that the victim's mother had a financial motive for pursuing a criminal case against him. Petition at 9-10. Specifically, petitioner argues that he was not able to impeach the victim's mother with her statement to the defense investigator that she was aware that other molestation victims obtained financial judgements against petitioner. Id. The California Court of Appeal held that the trial court did not abuse it discretion in excluding the evidence and that no constitutional violation occurred. Lodgement, Ex. 6 at 34.
"Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment,
The trial court precluded the impeachment testimony under California Evidence Code § 352. Lodgement, Exhibit 2, Vol. 7 RT at 927. Evidence Code § 352 gives the trial court discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Cal. Evid. Code § 352. Here, petitioner's motivation for impeaching the victim's mother was to establish that she pursued the case for her family's financial gain. Petition at 9. However, as the trial court noted, the victim's mother had already testified that she had not, and did not, intend to pursue a civil action for damages. Lodgement, Ex. 2, Vol. 7 RT at 927. The trial court further explained that the value of the testimony was diminished because the defense attorney intended to impeach the victim's mother, rather than the victim himself. Id. Moreover, as the Court of Appeal noted, the victim's mother ultimately impeached herself by testifying on direct examination that she was not aware of anyone receiving any monetary compensation because petitioner had molested them, but then on cross-examination she admitted she had "heard something about it." Lodgement, Ex. 6 at 33. Therefore, the record shows that the purported impeachment evidence was repetitive and was only marginally relevant, not critical, to petitioner's defense. Thus, the trial court's decision to exclude this evidence from the trial did not violate petitioner's due process rights. See Crane, 476 U.S. at 689-90; Holmes, 547 U.S. at 326-27. In addition, petitioner has failed to show that the exclusion of this evidence had a substantial or injurious effect or influence in determining the jury's verdict. See Brecht, 507 U.S. at 637.
Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court. Therefore, petitioner is not entitled to habeas relief on this claim.
Petitioner contends that the trial court violated his right to due process and his right to a jury trial under the Sixth and Fourteenth Amendments by sentencing him to an upper term. Petition at 10. Specifically, he contends that the trial court violated the Supreme Court's holding in Cunningham v. California, 549 U.S. 270 (2006), by sentencing him to an upper term based on facts not found true by the jury. Petition at 10. The California Court of Appeal rejected petitioner's claim, citing People v. Sandoval, 41 Cal.4th 825, 845-57 (2007). Lodgement, Ex. 6 at 36-37.
In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court held that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury." The statutory maximum is the maximum sentence a judge can impose based solely on the facts reflected in the jury verdict or admitted by the defendant, "[it] is the maximum he could impose without any additional findings." Blakely v. Washington, 542 U.S. 296, 303-04 (2004) (emphasis in original).
In Cunningham v. California, the United States Supreme Court held that California's determinate sentencing law violated the Sixth Amendment because it authorized judges, not the jury, to find facts permitting a sentence above the statutory maximum. 549 U.S. at 273. Following Cunningham, the California Legislature amended the determinate sentencing law to change the statutory maximum from a middle-term sentence to the upper term by granting the judge full discretion between imposing the lower, middle or upper term based solely on the facts reflected in the jury verdict or admitted by the defendant. See Cal. Penal Code § 1170. Since the amendment, the California Supreme Court has upheld the law as constitutional. See Sandoval, 41 Cal. 4th at 857. However, neither the Ninth Circuit nor the United States Supreme Court has explicitly ruled on its constitutionality.
The trial court sentenced petitioner to the upper term of sixteen years for his conviction as to count two, continuous sexual abuse of a child under fourteen years. Lodgement, Ex. 6 at 1-2. The trial court cited four factors, which were not found true by a jury, as the reasons for imposing the upper-term sentence: (1) petitioner took advantage of a position of trust; (2) the manner in which the crimes were carried out indicated planning and sophistication; (3) the victim was particularly vulnerable; and (4) the petitioner's "sexually assaultive behavior" presented a serious danger to society. Id.
When the Legislature enacted section 1170 it changed the statutory maximum, the maximum sentence a judge can impose based solely on the facts reflected in the jury verdict or admitted by the defendant, from the middle term to the upper term. See Cal. Penal Code § 1170; Sandoval, 41 Cal. 4th at 843-45. Thus, when the trial court sentenced defendant to the upper term, it sentenced petitioner to the statutory maximum, which according to the United States Supreme Court, does not require a separate finding of fact by a jury. See Blakely, 542 U.S. at 303-04; see also United States v. Booker, 543 U.S. 220, 233 (2005) ("[W]hen a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant."). Therefore, the trial court's decision to impose an upper-term sentence based on the factors cited above did not violate petitioner's right to due process or his right to a jury trial. See Creech v. Trimble, No. CV 11-03670 CRB, 2013 U.S. Dist. LEXIS 97188, at *23-25 (N.D. Cal. Jul. 11, 2013); Neri v. Allison, No. C 10-2867 RMW (PR), 2012 U.S. Dist. LEXIS 43157, at *30-35 (N.D. Cal. Mar. 28, 2012). Further, as discussed above, the United States Supreme Court has not explicitly ruled on the constitutionality of the amended section 1170.
Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court. Therefore, petitioner is not entitled to habeas relief on this claim.
For the foregoing reasons, the petition for the writ of habeas corpus is DENIED. A certificate of appealability will not issue. Reasonable jurists would not "find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). King may seek a certificate of appealability from the Ninth Circuit Court of Appeals. The clerk shall enter judgement in favor of respondent and close the file.
