David Unruh v. Rick Hall, Warden

MEMORANDUM *

There’s no dispute that Unruh suffered a constitutional violation when he was giv *658 en an enhanced sentence based on aggravating facts found by a judge, not a jury. See generally Cunningham v. California, 549 U.S. 270 , 127 S.Ct. 856 , 166 L.Ed.2d 856 (2007). Our only task, therefore, is to determine whether this constitutional error was harmless, applying the standard set forth in Brecht v. Abrahamson, 507 U.S. 619 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993). See Butler v. Curry, 528 F.3d 624, 648 (9th Cir.2008).

We are in grave doubt that the jury would necessarily have found that Unruh’s crime “disclos[ed] a high degree of cruelty, viciousness, or callousness.” Cal. R. Ct. 4.421(a)(1); see also O’Neal v. McAninch, 513 U.S. 432, 436 , 115 S.Ct. 992 , 130 L.Ed.2d 947 (1995). Given that it could not consider facts that are elements of the crime of child endangerment, see Cal. R. Ct. 4.420(d), nor Unruh’s use of a firearm, see Cal.Penal Code § 1170(b), a jury could reasonably conclude that Unruh’s conduct wasn’t especially vicious or callous. Unruh is a Marine Corps veteran whose crime resulted from a short-lived emotional outburst, and there is no evidence that he…

dissenting:

I respectfully dissent from the majority’s disposition of this case, because I agree with the district court that the constitutional violation that occurred was harmless under the standard of Brecht v. Abrahamson, 507 U.S. 619 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993).

In my view, Unruh has failed to establish that a jury would not have found, beyond a reasonable doubt, that Unruh’s *659 acts of violence, in particular his treatment of T., a 13-year-old boy, involved a high degree of viciousness and callousness. Unruh shot T.’s mother in the face. After T. discovered his mother bleeding and lying on the floor, Unruh grabbed a larger gun and held it to T’s head, holding T. hostage for two minutes and causing him to believe he was going to die.

I am not in grave doubt as to what conclusion the jury would have reached. It seems to me more likely than not that a jury would have found, as did the trial court, that this sequence of events revealed a high degree of viciousness and callousness. The key facts that made Un-ruh’s crime a highly vicious and callous one were beyond those necessary to establish the essential elements of the counts of violence against T. or of the…

FILED

NOT FOR PUBLICATION MAY 30 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID RYAN UNRUH, No. 10-56845

Petitioner - Appellant, D.C. No. 2:08-cv-00974-GW-SS

v.

MEMORANDUM*

RICK HALL, Acting Warden,

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding

Argued and Submitted January 6, 2014 Pasadena, California

Before: KOZINSKI, Chief Judge, REINHARDT and CLIFTON, Circuit Judges.

There’s no dispute that Unruh suffered a constitutional violation when he

was given an enhanced sentence based on aggravating facts found by a judge, not a

jury. See generally Cunningham v. California, 549 U.S. 270 (2007). Our only

task, therefore, is to determine whether this constitutional error was harmless,

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. page 2 applying the standard set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993). See

Butler v. Curry, 528 F.3d…