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Name: Estrella v. Ollison
Case #: 10-56203
Opinion Date: 12/29/2011
Court: US Court of Appeals
District 9 Cir
Citation: 668 Fed.3d 593
Summary

Trial court violated defendant’s Sixth Amendment right to jury trial when it imposed an upper term sentence based in part on its conclusion defendant was on parole for a violent offense at the time of the crime. A Riverside jury convicted defendant of kidnaping. A strike prior (Pen. Code, § 245, subd. (a)(1)) was found true. The probation report stated defendant was on parole at the time of the offense, which was one of the four factors in aggravation relied upon by the trial court when it imposed the doubled upper term. After the state courts confirmed the conviction, defendant filed a federal writ petition. The district court found appellant’s upper term sentence was Apprendi error, but harmless. The Ninth Circuit also concluded the sentence violated the Sixth Amendment. A defendant’s parole status can be altered after sentencing and these later changes may not be accurately reflected in the original conviction documents. Therefore, parole status does not fall within the “prior conviction” exception set forth in Apprendi; the defendant’s parole status must be pled and proved beyond a reasonable doubt. Under Washington v. Recuenco (2006) 548 U.S. 212, 218-20, a harmless error standard is applied to Apprendi error. The probation report may be considered in determining whether such error was harmless. Here, defendant admitted an August 2000 conviction for violating Penal Code section 245, subdivision (a)(1). The circuit court did not have “grave doubts” the jury would have found this to be a violent felony. Further, the probation report reflects defendant was paroled before the kidnaping in July 2002 and his parole was revoked in November 2002, after the kidnaping, leaving no doubt the jury would have found defendant was on parole at the time of the crime. The error was harmless.