                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                          FILED
                           FOR THE NINTH CIRCUIT                             NOV 04 2014

                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS

FRANCISCO RAMON RAMIREZ, JR.,                   No. 12-55231

              Petitioner - Appellant,           D.C. No. 5:08-cv-01042-GW-AJW

  v.
                                                MEMORANDUM
PAT L. VASQUES, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    George H. Wu, District Judge, Presiding

                      Argued and Submitted October 7, 2014
                              Pasadena, California

Before: HAWKINS and GRABER, Circuit Judges, and SEDWICK,** District Judge.


       Petitioner Francisco Ramon Ramirez, Jr. (“Ramirez”) appeals the denial of his

federal habeas petition. Ramirez, who was convicted of voluntary manslaughter,


       *
           This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
            The Honorable John W. Sedwick, United States District Judge for the
District of Alaska, sitting by designation.
contends that the state court Apprendi/Blakely1 error of failing to submit aggravating

circumstances to a jury was not harmless. We agree, and reverse and remand.

      Ramirez was charged with murder in the shooting death of his sister’s

boyfriend, but presented a self-defense/defense-of-another theory to the jury. After

five days of deliberation, the jury convicted Ramirez of the lesser-included offense of

voluntary manslaughter, and thus did not fully accept either the prosecution’s or

defense’s version of the facts. In sentencing, however, the state court found several

aggravating factors applied (reciting in large part the prosecution’s view of the

evidence) and sentenced Ramirez to an aggravated term on the use of a firearm

charge.

      In light of Apprendi, Blakely, and Cunningham v. California, 549 U.S. 270

(2007), it was error for the state court to have failed to submit the aggravating factors

to the jury for determination. “Even where constitutional error is found, ‘in § 2254

proceedings a court must [also] assess the prejudicial impact of constitutional error’

under the Brecht [v. Abrahamson, 507 U.S. 619 (1993)] standard.” Merolillo v. Yates,

663 F.3d 444, 454 (9th Cir.2011) (quoting Fry v. Pliler, 551 U.S. 112, 121–22 (2007))

(first alteration in original); see also Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir.



      1
       Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542
U.S. 296 (2004).
                                           2
2010) (“We apply the Brecht test without regard for the state court’s harmlessness

determination.”).

      Under Brecht, habeas petitioners are entitled to relief if “the error had

substantial and injurious effect or influence in determining the jury’s verdict.” 507

U.S. at 637 (internal quotation marks and citation omitted). “Where the record is so

evenly balanced that a judge ‘feels himself in virtual equipoise as to the harmlessness

of the error’ and has ‘grave doubt about whether an error affected a jury [substantially

and injuriously], the judge must treat the error as if it did so.’” Merolillo, 663 F.3d

at 454 (quoting O'Neal v. McAninch, 513 U.S. 432, 435–38 (1995)) (alteration in

original) (internal quotation marks omitted).

      We have such doubts here. Although one view of the evidence–that espoused

by the prosecution–could likely support one or more of the aggravating factors found

by the state court, the jury did not fully accept that version of events. In light of its

verdict, we cannot conclude with confidence that, if it had been asked, the jury would

have found that (1) Ramirez committed the crime with “planning, sophistication or

professionalism,” see People v. Sandoval, 41 Cal. 4th 825, 841 (2007); or (2) the

victim, who was armed with a loaded gun which he had shown Ramirez earlier, was

“particularly vulnerable,” see id. at 842; or (3) the crime, although involving violence

and bodily harm, necessarily revealed a “high degree of cruelty, viciousness or


                                           3
callousness on the part of the perpetrator,” see People v. Nevill, 167 Cal. App. 3d 198,

206 (1985). As the California Supreme Court itself has noted, many of California’s

aggravating circumstances are “vague or subjective,” and thus “it may be difficult for

a reviewing court to conclude with confidence that, had the issue been submitted to

the jury, the jury would have assessed the facts in the same manner as did the trial

court.” People v. Boyce, 59 Cal. 4th 572, 728–29 (2014) (quoting Sandoval, 41

Cal. 4th at 840); see also Sandoval, 41 Cal. 4th at 840 (“Many of the aggravating

circumstances described in the rules require an imprecise quantitative or comparative

evaluation of the facts.”).

      We cannot conclude the error here was harmless. We therefore reverse the

district court’s denial of the writ and remand for further proceedings consistent with

this decision.

      REVERSED AND REMANDED.




                                           4
                                                                                FILED
Ramirez v. Vasques, No. 12-55231                                                 NOV 04 2014

                                                                             MOLLY C. DWYER, CLERK
GRABER, Circuit Judge, dissenting:                                            U.S. COURT OF APPEALS



      I respectfully dissent. I have no doubt that the jury would have found at

least one aggravating factor, Butler v. Curry, 528 F.3d 624, 648 (9th Cir. 2008),

either sophistication or "great violence . . . or other acts disclosing a high degree of

cruelty, viciousness, or callousness," Cal. R. Ct. 4.421(a)(1), (a)(8). Ramirez had

much more than routine familiarity with firearms, having served for ten years in

the military during which he was qualified in the use of weapons. He was under

the influence of methamphetamine. He selected the deadlier of the firearms in his

vehicle, which had a five-round magazine. He used expanding bullets (forbidden

in warfare since the 1880s), which disintegrate on impact to cause the greatest

damage to the human body; at close range he fired three shots, each of which

required separate aim, and separate pulls of the trigger, and which shot the victim’s

heart out of his body. The result was not just any killing, but dramatic overkill.

Accordingly, I would affirm, because the Cunningham v. California, 549 U.S. 270

(2007), error was harmless under the Brecht v. Abrahamson, 507 U.S. 619 (1993),

standard.
