                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 07 2013

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JAMES JOSEPH FLORES,                             No. 09-55970

              Petitioner - Appellant,            D.C. No. 2:02-cv-03613-MMM-
                                                 VBK
  v.

CONNIE GIPSON, Warden,                           MEMORANDUM *

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                   Margaret M. Morrow, District Judge, Presiding

                      Argued and Submitted December 6, 2012
                               Pasadena, California

Before: PREGERSON, NOONAN, and PAEZ, Circuit Judges.

       Petitioner James Joseph Flores (“Flores”) appeals the district court’s denial

of his petition for habeas relief. On November 16, 1998, after a jury trial in the

California superior court, Flores was convicted of: simple kidnapping (Cal. Penal




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Code § 207 1), forcible oral copulation (§ 288a(c)), forcible sodomy (§ 286(c)),

corporal injury to a spouse (§ 273.5(a)), and making terrorist threats (§ 422).

Flores’s sentence was enhanced from an eight-year term to a twenty-five-year-to-

life term pursuant to Cal. Penal Code § 667.61(d)(2), because the jury found that

Flores “kidnapped the victim and the movement of the victim substantially

increased the risk of harm to the victim over and above that level necessarily

inherent in the underlying offense” of forcible sodomy. The jury found the same

with respect to forcible oral copulation. The § 207 simple kidnapping conviction

was reversed on direct appeal, but the validity of the § 667.61(d)(2) “aggravated

kidnapping circumstance” of the § 667.61 sentence enhancement was not raised on

direct appeal and, thus, never reversed. This court has jurisdiction pursuant to 28

U.S.C. §§ 1291 and 2253, and we reverse the denial of habeas relief and remand

with directions to grant.

      Under Jackson v. Virginia, 443 U.S. 307, 318-19 (1979), and In re Winship,

397 U.S. 358, 364 (1970), the Due Process Clause of the Fourteenth Amendment

requires that there be sufficient evidence of each element of a crime to convict.

Here, appellate counsel did not raise the meritorious insufficiency of the evidence



      1
       All statutory references are to the version of the California Penal Code
operable when Flores was charged and convicted in 1998.

                                          2
claim on direct appeal. Although the sufficiency claim was not exhausted in state

court, In re Dixon, 41 Cal.2d 756, 759 (Cal. 1953), Flores has demonstrated cause

and prejudice to overcome this procedural default based on the ineffective

assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984); see

Coleman v. Thomspon, 501 U.S. 668 (1984). Flores’s counsel failed to raise the

sufficiency claim even after the state court of appeal reversed the § 207 conviction.

Because the state courts never offered a “reasoned decision” on the issue whether

there was sufficient evidence to support the § 667.61 enhancement, we “perform an

independent review of the record to ascertain whether the state court decision was

objectively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003)

(internal quotation marks and citation omitted).

      The sufficient evidence principle applies to § 667.61(d)(2) enhancements

because the statute treats the enhancements as offenses, the facts of which must be

“alleged in the accusatory pleading and either admitted by the defendant in open

court or found to be true by the trier of fact.” Section 667.61(i); cf. People v.

Mancebo, 41 P.3d 556, 567 (Cal. 2002) (noting that § 667.61’s “pleading and

proof requirements apply to all of the qualifying circumstances enumerated in

subdivisions (d) and (e).”)




                                           3
      There is insufficient evidence under any theory of kidnapping to conclude

that Flores “kidnapped” the victim within the meaning of the § 667.61(d)(2)

enhancement presented to the jury. The prosecution charged and tried Flores for

kidnapping under § 209(b) “aggravated kidnapping.” The jury acquitted Flores of

this charge. The jury convicted Flores of the lesser-included § 207 “simple

kidnapping” and the state appellate court reversed this conviction as a matter of

law because the asportation standard was not met. Even assuming, as the

Government argues, that the § 667.61(d)(2) enhancement incorporates the § 209(b)

asportation standard, Flores could not have “kidnapped” the victim so as to satisfy

the elements of § 667.61(d)(2) under this theory while simultaneously being

acquitted of the § 209(b) kidnapping. By acquitting Flores of § 209(b) kidnapping,

the jury demonstrated that it did not find sufficient “factual allegations to be true”

to sustain a conviction pursuant to § 209(b) or a sentence enhancement pursuant to

§ 667.61. People v. Anderson, 211 P.3d 584, 590 (Cal. 2009).

      Therefore, viewing the evidence in the light most favorable to the

prosecution, no rational trier of fact could find “the essential elements of the [§

667.61(d)(2) enhancement] beyond a reasonable doubt.” The imposition of the

enhancement was “objectively unreasonable,” Himes, 336 F.3d at 853, because it




                                           4
violated Flores’s due process rights. Jackson, 443 U.S. at 319; In re Winship, 397

U.S. at 364.

      For the above reasons we REVERSE the district court’s denial of habeas

relief. On remand, the district court is instructed to GRANT a conditional writ of

habeas corpus directing the state to release Flores or resentence him within a

reasonable period of time without reference to the § 667.61 enhancement.

      REVERSED AND REMANDED




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