Ray McKinley BOWEN, Petitioner-Appellant, v. Darrell G. ADAMS, Respondents-Appellees, 399 F. App'x 197

MEMORANDUM California state prisoner Ray McKinley Bowen appeals from the district court’s denial of his 28 U.S.C. § 2254 petition challenging his jury-trial conviction for kidnapping, making a criminal threat, and inflicting corporal injury on a spouse or cohabitant, for which he was sentenced to 23 years, four months in prison. We have jurisdiction under 28 U.S.C. § 2253(a), and we affirm. Bowen contends that the trial court’s selection of an upper-term sentence on the kidnapping count violated his Sixth and Fourteenth Amendment rights as established in Apprendi v.

New Jersey, 530 U.S. 466, 120 S.Ct. 2348,147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). See Cunningham v. California, 549 U.S. 270, 288-89, 293, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) (holding that California’s determinate sentencing law, permitting imposition of an upper-term sentence on the basis of aggravating circumstances not found by the jury, “violates Apprendi’s bright-line rule”).

It is unnecessary to decide whether Bowen’s kidnapping sentence was imposed in violation of Apprendi because any error was harmless in light of Bowen’s undisputed history of parole and probation violations, on which the trial court relied in

part in setting Bowen’s sentence. See Butler v. Curry, 528 F.3d 624, 642, 648 (9th Cir.2008) (“Any Apprendi error [is] harmless if it is not prejudicial as to just one of the aggravating factors at issue[,]” as the presence of one such factor serves to “set the upper term as the statutory maximum.”). In determining harmlessness, the question is not, as Bowen suggests, whether the trial court would have imposed an upper-term sentence on the basis of just one aggravating factor; it is rather whether the jury would likely have found one such factor beyond a reasonable doubt. See Butler, 528 F.3d at 648-49.

Because there can be no question that the jury would have found Bowen’s history of parole and probation violations established beyond a reasonable doubt, any Apprendi error did not have a “substantial and injurious effect” on Bowen’s sentence. See Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.