                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        DEC 18 2019
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CESAR VILLEGAS,                                 No.    18-55465

                Petitioner-Appellant,           D.C. No.
                                                2:16-cv-09671-JFW-KS
 v.

ROSEMARY NDOH,                                  MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                    John F. Walter, District Judge, Presiding

                    Argued and Submitted December 12, 2019
                             Pasadena, California

Before: N.R. SMITH and WATFORD, Circuit Judges, and HELLERSTEIN,**
District Judge.

      Cesar Villegas appeals from the district court’s denial of his petition for a

writ of habeas corpus. He argues that the state court’s determination that he was

not entitled to relief on his vagueness claim was unreasonable under 28 U.S.C.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Alvin K. Hellerstein, United States District Judge for
the Southern District of New York, sitting by designation.
                                                                          Page 2 of 3

§ 2254(d)(1). We affirm.

      Villegas was sentenced under California Penal Code § 667.61(d)(2), which

requires a sentence of 25 years to life for defendants who (1) committed rape or

forcible oral copulation, (2) kidnapped the victim, and (3) moved the victim in a

way that “substantially increased the risk of harm to the victim over and above that

level of risk necessarily inherent in the underlying [sexual] offense.” Id.

According to Villegas, § 667.61(d)(2) requires the judge and jury to assess the

level of risk involved in hypothetical ordinary cases of rape and forcible oral

copulation, and then to compare that to the risk of harm associated with the sexual

offenses that occurred in the case at hand. Such an inquiry, he argues, is

unconstitutionally vague under Johnson v. United States, 135 S. Ct. 2551 (2015),

as it focuses on an “imagined ‘ordinary case’ of a crime” instead of “real-world

facts.” Id. at 2557.

      The state court decision upholding § 667.61(d)(2) was not “contrary to” or

“an unreasonable application of” Johnson. 28 U.S.C. § 2254(d)(1). As California

courts have explained, the language in the third prong of § 667.61(d)(2)’s test

requires factfinders to consider the particular facts of the case at hand—not to

imagine hypothetical or typical cases of rape or forcible oral copulation. See, e.g.,

People v. Dominguez, 140 P.3d 866, 873–74 (Cal. 2006); People v. Daniels, 459

P.2d 225, 238 (Cal. 1969); People v. Ledesma, 222 Cal. Rptr. 3d 534, 539–40 (Ct.
                                                                           Page 3 of 3

App. 2017). And to the extent that People v. Jones, 68 Cal. Rptr. 2d 506, 521 (Ct.

App. 1997), suggests otherwise, its reasoning conflicts with the California

Supreme Court’s decisions in Dominguez and Daniels. Accordingly, given the

particularized nature of § 667.61(d)(2)’s test, the state court reasonably rejected

Villegas’ claim under Johnson.

      Section 667.61(d)(2) also provided Villegas with fair notice that his

particular conduct fell within the statute’s reach. A reasonable person in Villegas’

position would know that moving the victims from a bus stop at a major

intersection to an unfamiliar residential neighborhood at night would substantially

increase the risk of harm to them. See Dominguez, 140 P.3d at 874–85 (holding

that a defendant’s movement of a victim to a more isolated area significantly

“decreas[ed] the possibility of detection, escape or rescue” and substantially

increased the risk of harm).

      AFFIRMED.
