                            NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                         AUG 15 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

MICHAEL JAMES MONTES,                            No.   16-56061

                Petitioner-Appellant,            D.C. No.
                                                 5:15-cv-00330-FMO-KES
 v.

JEFFREY A. BEARD,                                MEMORANDUM*

                Respondent-Appellee.

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

                            Submitted August 7, 2017**
                               Pasadena, California

Before: CALLAHAN and OWENS, Circuit Judges, and FABER,*** District
Judge.

      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


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable David A. Faber, United States District Judge for the
Southern District of West Virginia, sitting by designation.
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

Apprendi1 error is harmless.2 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, 146 Cal. Rptr. 3d 113, 123 (Ct. App. 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 (“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.”).


1
    Apprendi v. New Jersey, 530 U.S. 466 (2000).
2
 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).


                                           2
      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, 135 S. Ct. 2187, 2197-98 (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


                                          3
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 (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 “Apprendi errors are reviewed

under the harmless error standard in Neder v. United States, 572 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 Apprendi 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.


                                           4
Lewis, 833 F.3d 1001, 1010 (9th Cir. 2016) (citation omitted).

      AFFIRMED.




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