Jose Estrella v. Derrick Ollison
2011 U.S. App. LEXIS 25960
| 9th Cir. | 2011Background
- Estrella was convicted of kidnapping and had a prior aggravated assault conviction.
- Probation and sentencing included consideration of a probation report detailing parole status.
- Trial court sentenced Estrella to the upper term eight years, then doubled under Three Strikes and added a consecutive five-year term.
- The upper term was based on Estrella being on parole for a violent offense at the time of the kidnapping.
- Court of Appeals and California Supreme Court proceedings occurred before federal habeas petition was filed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Apprendi violated by the upper term based on parole status? | Estrella: parole status constitutes a fact to be proved to a jury. | Ollison: parole status falls under prior conviction exception and need not be jury-found. | Yes; Apprendi error occurred; harmless on habeas review. |
| Does parole status fall within the 'prior conviction' exception to Apprendi? | Parole status cannot be considered part of prior conviction due to post-sentencing changes. | Butler and related logic allow the exception to apply to parole status. | Parole status not within the prior conviction exception. |
| May the probation report be used to assess harmlessness of Apprendi error? | Whole-record harmlessness analysis requires consideration of probation information. | Only trial-admissible evidence should be considered for harmlessness. | Yes; the probation report may be considered to assess harmlessness. |
| Was Estrella on parole for a violent offense at the time of kidnapping, and would jury find it beyond a reasonable doubt? | Probation records show parole status; jury would likely find ongoing parole status as violent. | Ambiguity in probation notes could undermine jury finding. | Probation evidence supports that Estrella was on parole for a violent offense; error found harmless. |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (any fact increasing penalty beyond statutory maximum must be juried and proven beyond a reasonable doubt)
- Blakely v. Washington, 542 U.S. 296 (U.S. 2004) (high-term findings must be jury-based under Apprendi framework)
- Cunningham v. California, 549 U.S. 270 (U.S. 2007) (applies Apprendi to California determinate sentencing law)
- Butler v. Curry, 528 F.3d 624 (9th Cir. 2008) (parole status not within prior conviction exception; subject to Apprendi)
- United States v. Locklin, 530 F.3d 908 (9th Cir. 2008) (harmless-error review considers whole record for Apprendi violations)
- Washington v. Recuenco, 548 U.S. 212 (U.S. 2006) (harmless-error analysis applies to Apprendi violations)