Miguel ROSALES, Petitioner-Appellant, v. Robert A. HOREL, Warden; et al., Respondents-Appellees, 376 F. App'x 802

MEMORANDUM California state prisoner Miguel Rosales appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm. The California Court of Appeal denied Rosales’ Sixth Amendment challenge to his upper term sentence “by applying a rule of decision contrary to clearly established Supreme Court precedent.” See Butler v. Curry, 528 F.3d 624, 640 (9th Cir.), cert. denied — U.S. -, 129 S.Ct. 767, 172 L.Ed.2d 763 (2008); see also 28 U.S.C. § 2254(d); Cunningham v.

California, 549 U.S. 270, 288-89, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) (holding that California’s determinate sentencing law violates the Sixth Amendment). The state’s contention that Cunningham is a new procedural rule of constitutional law that does not apply retroactively on collateral review is foreclosed. See Butler, 528 F.3d at 639. Applying de novo review to the constitutional claim, see id. at 641, the Sixth Amendment violation was harmless error.

The record discloses that the trial court imposed the upper term sentence based, in part, upon the aggravating circumstance that Rosales’ prior performance on probation or parole was unsatisfactory. The probation report considered by the trial court at sentencing contains ample evidence to support a jury finding of that aggravating circumstance beyond a reasonable doubt. The fact that the finding was made by the trial court rather than the jury did not have a substantial and injurious effect on Rosales’ sentence. See id. at 648; Hoffman v. Arave, 236 F.3d 523, 540 (9th Cir.2001). AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.