Michael James MONTES, Petitioner-Appellant, v. Jeffrey A. BEARD, Respondent-Appellee, 695 F. App'x 305

MEMORANDUM Petitioner Michael Montes (“Petitioner”) appeals from the district court’s denial of his petition for a writ of habeas corpus. As the parties are familiar -with the facts, we do not recount them here. We have jurisdiction under 28 U.S.C. § 2253, and we affirm. 1. The district court did not err in denying the petition because the Apprendi error is harmless. Petitioner argues that the California Superior Court imposed an unconstitutional sentence under counts three and four when it applied California Penal Code

section 186.22(b)(4)(C)’s sentencing enhancement based on facts not found by the jury beyond a reasonable doubt—namely, that Petitioner attempted to dissuade Michael Pedroza and Dylan Valencia from reporting a robbery and that the attempt was “accompanied by an express or implied threat of force.” See People v. Lopez, 208 Cal.App.4th 1049, 146 Cal.Rptr.3d 113, 123 (2012). Here, the jury was not asked to find whether Petitioner made such threats against Pedroza or Valencia. Accordingly, the California Superior Court’s imposition of

section 186.22(b)(4)(C)’s sentencing enhancement constituted Apprendi error. See Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”). However, the error is harmless. “A properly preserved Apprendi error is reviewed for harmless error.” United States v. Guerrero-Jasso, 752 F.3d 1186, 1193 (9th Cir. 2014).

On direct appeal, “an error is harmless if the court finds beyond a reasonable doubt that the result would have been the same absent the error.” United States v. Zepeda-Martinez, 470 F.3d 909, 913 (9th Cir. 2006) (internal quotation marks omitted). On collateral review, an error is harmless unless “the federal court has grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury’s verdict.” Davis v. Ayala, — U.S. -, 135 S.Ct. 2187, 2197-98, 192 L.Ed.2d 323 (2015) (internal quotation marks and citation omitted).

Here, Pedroza unambiguously testified that after Petitioner robbed him, Petitioner threatened to kill him if he told the police. Additionally, the record clearly shows that the threat of force was, at a minimum, implied to Valencia.

After Petitioner “jacked” his phone, Valencia did not attempt to take it back because he was afraid that he would be “jumped.” Furthermore, as Petitioner was threatening Pedroza and punching him in the face multiple times, all of which occurred in front of and within ear shot of Valencia, Valencia did not attempt to assist Pedroza because one of Petitioner’s associates told Valencia not to help while reaching under his shirt as if he had a gun.

Under these circumstances, we have no doubt, much less grave doubt, that the jury would have found that Petitioner attempted to dissuade Valencia from reporting the robbery to law enforcement and that the attempt was accompanied by an implied or express threat of force. 2. Petitioner has not made “a substantial showing of the denial of a constitutional right” so as to expand the certificate of appealability to include his ineffective assistance of counsel claim. See 28 U.S.C. § 2253(c)(2); Ninth Circuit Rule 22-1(e).

Petitioner argues that his appellate counsel provided ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), by failing to raise the Apprendi error on direct appeal. As explained above, the Apprendi error is harmless, even under a direct-appeal standard. It therefore follows that Petitioner was not prejudiced by his appellate counsel’s failure to raise it on direct appeal. This conclusion is not altered by the two state-court cases cited by Petitioner.

The Supreme Court has declared that “Ap-prendi errors are reviewed under the harmless error standard in Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).” Zepeda-Martinez, 470 F.3d at 913. The fact that two state-court cases have deviated from this rule and remanded for resentencing in light of Ap-prendi error without engaging in harmless error review is of no consequence, as we presume that any state court that would have heard Petitioner’s Apprendi challenge on direct appeal would “know and follow the law.” Reyes v. Lewis, 833 F.3d 1001, 1010 (9th Cir. 2016) (citation omitted).

AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). . We review Petitioner’s Apprendi claim de novo because the California Superior Court’s April 9, 2014 opinion, the state's last reasoned opinion, did not address the claim on the merits. See Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005).