Jose Estrella v. Derrick Ollison

Petitioner Jose Estrella appeals the denial of his habeas petition. Estrella contends that the California state trial court violated his Sixth Amendment rights when it imposed an upper term sentence based in part on its conclusion that he was on parole for a violent offense at the time of the crime. The district court concluded that Estrella suffered an error pursuant Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), but found any such error harmless. We agree and affirm.

I. Background

A Riverside County jury convicted Estrella of kidnapping in violation of California Penal Code § 207 and other crimes for events that took place late on the night of September 2, 2002, and that continued into the early morning hours of September 3, 2002. The jury found that Estrella had a prior conviction for aggravated assault in violation of California Penal Code § 245(a)(1). Estrella admitted this fact after the jury verdict but before sentencing.

The trial court considered the probation report at sentencing. The probation report reflects criminal history information culled from FBI, DMV and Riverside Superior Court records: Estrella was convicted on…