                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 WILLIS LAVONE CREECH,                               No. 13-16709
            Petitioner-Appellant,
                                                      D.C. No.
                      v.                         3:11-cv-03670-CRB

 SCOTT FRAUENHEIM,
           Respondent-Appellee.                         OPINION


       Appeal from the United States District Court
           for the Northern District of California
     Charles R. Breyer, Senior District Judge, Presiding

                 Argued and Submitted
       December 11, 2014—San Francisco, California

                       Filed August 31, 2015

 Before: A. Wallace Tashima and Richard A. Paez, Circuit
    Judges and Frederic Block,* Senior District Judge.

                       Opinion by Judge Paez




  *
    The Honorable Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
2                    CREECH V. FRAUENHEIM

                           SUMMARY**


                          Habeas Corpus

    The panel affirmed the district court’s denial of California
state prisoner Willis Lavone Creech’s 28 U.S.C. § 2254
habeas corpus petition challenging his convictions for assault
with a firearm and child endangerment.

    The panel held that it was not unreasonable for the
California Court of Appeal to conclude that there was
sufficient evidence for a rational trier of fact to convict
Creech of the assault with a firearm and child endangerment
charges.

    The panel also held that it was not contrary to or an
unreasonable application of clearly established Supreme
Court law to conclude that California’s revised determinate
sentencing law, which provides trial courts with discretion to
decide among three sentences, is constitutional under
Apprendi v. New Jersey.


                             COUNSEL

Paul McCarthy (argued), and Robert J. Beles (argued), Law
Offices of Robert J. Beles, Oakland, California, for
Petitioner-Appellant.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   CREECH V. FRAUENHEIM                         3

Jill M. Thayer (argued), Deputy Attorney General, Kamala D.
Harris, Attorney General of California, Gerald A. Engler,
Senior Assistant Attorney General, and Gregory A. Ott,
Deputy Attorney General, California Attorney General’s
Office, San Francisco, California, for Respondent-Appellee.


                          OPINION

PAEZ, Circuit Judge:

    Willis Lavone Creech appeals the district court’s denial
of his 28 U.S.C. § 2254 habeas petition challenging his
convictions for assault with a firearm and child
endangerment. He challenges his convictions on the basis of
alleged violations of his Fourteenth Amendment Due Process
rights. Creech also challenges his sentence under California’s
determinate sentencing law as a violation of his Sixth
Amendment right to a jury trial. We hold that it was not
unreasonable for the California Court of Appeal to conclude
that there was sufficient evidence for a rational trier of fact to
convict Creech of the assault with a firearm and child
endangerment charges. We also hold that it was not contrary
to or an unreasonable application of clearly established
Supreme Court law to conclude that California’s revised
determinate sentencing law, which provides trial courts with
discretion to decide among three sentences, is constitutional
under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
4                        CREECH V. FRAUENHEIM

                    I. Facts and Procedural History

                  A. Events and Convictions at Issue1

    Creech and his wife, Reanna, have a four-year-old
daughter, Sofia, and a three-year-old son, Zachary.2 One
evening in September 2007, Creech and Reanna had an
argument because Creech told Reanna he had obtained a
shotgun. Reanna decided to leave him that night. A few
weeks later, she took the kids to her father’s house in Napa.
Several days later, Creech and Reanna spoke on the phone.
She told him the kids were at her father’s and suggested that
they talk another time to arrange for Creech to see them.

    Later that night, Creech went to Reanna’s father’s house
and asked him if he could see the children. Creech’s father-
in-law said “no.” When Reanna returned to her father’s home
later that night, she saw Creech waiting there and drove away.
He followed her. A highway patrol officer stopped Reanna
for “driving 15 miles an hour in a 45.” Reanna, who had
been crying, explained to the officer the circumstances with
Creech and their kids. At the time she was pulled over,
Reanna was on the phone with the sheriff’s department.
Creech had contacted the police department and explained
that he was trying to get in contact with his children, and that
he had been “threatened off [his father-in-law’s] property.”
The patrol officer told Reanna that, because Creech was the
only custodial parent at her father’s house, she had to go back



    1
        The factual background is drawn from the testimony given at trial.
  2
    To avoid confusion, we refer to members of Creech’s family by their
first names.
                  CREECH V. FRAUENHEIM                        5

to her father’s, otherwise Creech would be allowed to take the
children. Reanna decided to return to her father’s house.

    Creech testified at trial that he was angry with his father-
in-law for not allowing him to see his children. So, he
decided to return the following morning to shoot at and
damage his house. He grabbed bird shot ammunition because
“shooting through things. . . wasn’t [his] intent.”

     Late that morning, Reanna, who was at her father’s house,
heard a “solid thud.” She looked outside and saw Creech
holding a shotgun about fifteen to twenty feet away from the
house. Reanna shouted to her stepsister, Jennifer Curry, to
grab Sofia. Jennifer saw glass flying everywhere. Jennifer
also looked out of a window and saw Creech standing about
fifteen to thirty feet away, aiming his shotgun and tracking
her and Sofia with the barrel of the gun. Reanna grabbed
Zachary and went to the downstairs bathroom, and Jennifer
and Sofia joined them. Juliane Rush, Reanna’s stepmother,
heard a “very loud pop” from the front of the house. She saw
Creech standing about fifteen feet away from the front door.

    Creech’s account of the shooting differed in material
respects. He testified at trial that, when he arrived at his
father-in-law’s house, the gate was locked, which he thought
meant nobody was home. He did not see any cars that he
recognized, but he did see an SUV and a silver Jetta. He did
not hear or see anyone inside the house. He testified that he
was forty or fifty feet away from the house while he was
shooting. Creech did not see or hear anything while he was
shooting. Creech testified that he has “horrible” vision, and
that he did not wear his glasses that day. After the shooting,
he went to his parents’ house, ingested a bottle of pills, and
was taken to the hospital.
6                   CREECH V. FRAUENHEIM

    Officers arrived at the Napa house minutes after the
shooting, but Creech had left. They found three shells in
front of the house. There were many very small perforations
in the front door, and the outer pane of the double-paned
window in the upper portion of the door was broken. Both
layers of a double-paned window in the study were also
broken.

    Creech was tried and convicted in Napa County Superior
Court of multiple counts of assault with a firearm, Cal. Penal
Code § 245(a), shooting at an inhabited dwelling, Cal. Penal
Code § 246, and felony child endangerment, Cal. Penal Code
§ 273a(a).

    A forensic expert, Dr. John Thornton testified at trial.
Among other tests, he performed ballistic gelatin testing “to
mimic the behavior expected from human flesh . . . if a
human body was shot with that projectile.” He performed
these tests “without glass at a distance of 45 feet . . . [his] best
approximation of the distance between the cluster of shotgun
shells in front of the door and the door.” From this test, he
opined that “there would be a minimum of an inch and a half
of penetration into flesh.” With dual-paned glass, no pellets
permeated the gel from 45 feet. Dr. Thornton did not perform
tests at any other distance.

    In addition to the gelatin testing results, Dr. Thornton also
stated other opinions based on the location of the shell
casings and particle dispersion. First, he opined that the shots
to the door were fired from between forty and fifty feet away,
while the shot to the window was fired from twenty feet
away. Second, he opined that there were lead pellets in the
debris collected from the study. Third, he explained that the
                     CREECH V. FRAUENHEIM                               7

bullet “we’re speaking of is on the small side. It’s intended
for small birds.”

     Dr. Norris, a forensic science consultant, also testified at
trial. He estimated that Creech shot the door and the window
from the same distance, about fifty feet away at all times.

    Ultimately, the jury convicted Creech of multiple counts
of assault with a firearm, child endangerment, and shooting
at an inhabited dwelling, with firearm use enhancements, Cal.
Penal Code § 12022.5.3 At the sentencing hearing in July
2008, the trial court explained that, in determining prison
time, it was required to “select[] [among] the upper, middle
or lower term” available. It stated that it must “exercise its
discretion” and “consider circumstances in aggravation and
mitigation when making that decision.” The court found
“numerous circumstances in aggravation,” including “threat
of great bodily harm and a high degree of cruelty and
callousness,” particularly vulnerable victims, “planning and
sophistication,” and “violent conduct.” Further, the trial court
found very few mitigating circumstances, although it did find
satisfactory probation performance and a limited prior
criminal record. The court, in exercising its discretion,
imposed the upper term on the child endangerment and
assault with a firearm convictions.4 After applying statutory
enhancements for use of a firearm and determining that the

  3
    Creech’s convictions for shooting at an inhabited dwelling are not at
issue here.
 4
   The court classified the child endangerment charge as to Sofia as the
principal count of conviction, and all the other counts of conviction as
subordinate. See People v. Neely, 176 Cal. App. 4th 787, 797–98 (2009)
(explaining the sentencing protocol for multiple offenses with determinate
terms under California Penal Code section 1170.1).
8                  CREECH V. FRAUENHEIM

sentence for several counts should be served consecutively
and others concurrently, the court imposed an effective
sentence of thirty-one years and four months.

                B. Court of Appeal Opinion

    Creech appealed. The California Court of Appeal
addressed both questions at issue here, namely Creech’s Due
Process challenge of the sufficiency of the evidence to
convict him of assault with a firearm and child endangerment,
and his Sixth Amendment challenge to his sentence. In
affirming Creech’s convictions, the court reasoned that the
inquiry for assault with a firearm focuses on the ability to
inflict injury, rather than whether, given the circumstances,
injury could have been the “instantaneous result of the
defendant’s conduct.” Viewing the evidence in the light most
favorable to the prosecution, it held that the jury could
“reasonably infer from the evidence that Creech had the
present ability to inflict injury on Jennifer, Sofia and Juliane.”
Regarding the child endangerment convictions, the court of
appeal found “substantial evidence that Creech’s conduct
endangered his children under circumstances likely to
produce great bodily harm or death.” In so concluding, the
court rejected Creech’s argument that the prosecution failed
to proffer evidence that the shotgun pellets could have
penetrated Sofia’s and Zachary’s skin.

    In rejecting Creech’s Sixth Amendment challenge to his
sentence, the court noted that in response to the Supreme
Court’s 2007 decision in Cunningham v. California, 549 U.S.
270 (2007), the state legislature had revised the determinate
sentencing law to give trial judges discretion in selecting
among three possible prison terms. It further noted that the
California Supreme Court held in People v. Sandoval, 41 Cal.
                  CREECH V. FRAUENHEIM                        9

4th 825 (2007), that the change in the law corrected the Sixth
Amendment deficiency addressed in Cunningham. Although
Creech argues that the post-Cunningham sentencing system
under which he was sentenced did not comply with Apprendi
and its progeny, he acknowledged before the court of appeal
the California Supreme Court’s decision in Sandoval. Noting
that it was bound by Sandoval, the court of appeal did “not
further address th[e] issue.”

    The California Supreme Court denied Creech’s petition
for review.

               C. District Court Proceedings

    Creech next filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2254. He again raised the same two
federal constitutional claims that he litigated in state court:
1) evidentiary insufficiency in violation of his due process
rights under the Fourteenth Amendment, and 2) improper
judicial fact finding at sentencing in violation of his Sixth
Amendment right to a jury trial.

    The district court denied Creech’s habeas petition. In
rejecting the evidentiary sufficiency claims, the district court
concluded that Creech could not meet the “twice-deferential
standard” applied to such claims under Jackson v. Virginia,
443 U.S. 307 (1979), and the Anti-Terrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). The court held that
it was not unreasonable for the court of appeal to conclude
that a rational jury could find beyond a reasonable doubt that
Creech had the present ability to inflict injury, or that
Creech’s perceptions would have alerted a reasonable person
to the presence of people in the home. The court therefore
10                CREECH V. FRAUENHEIM

rejected Creech’s challenge to his convictions for assault with
a firearm and child endangerment.

    Turning to Creech’s Sixth Amendment claim, the court
noted that it had previously addressed and rejected “an
identical habeas argument” in McCowan v. Marshall, No.
C 10-0473 CRB PR, 2011 WL 1544490 (N.D. Cal. Apr. 25,
2011), and that it continued to adhere to that decision.

                   II. Standard of Review

    We review de novo a district court’s denial of a § 2254
habeas petition. Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir.
2014). A petitioner is entitled to habeas relief under AEDPA
only if the state court’s decision “was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court,” or if it was based
an “unreasonable determination of the facts.” 28 U.S.C.
§ 2254(d); Williams v. Taylor, 529 U.S. 362, 407–09 (2000).
Here, Creech challenges his convictions and sentence under
AEDPA’s “contrary to” and “unreasonable application”
prongs. 28 U.S.C. § 2254(d)(1).

    We analyze the court of appeal’s decision because it is the
last reasoned state court decision. See Van Lynn v. Farmon,
347 F.3d 735, 738 (9th Cir. 2003).

                  III. Due Process Claims

   “[T]he Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he is
charged.” In re Winship, 397 U.S. 358, 364 (1970). The
inquiry for such a claim is whether “upon the record evidence
                  CREECH V. FRAUENHEIM                      11

adduced at the trial no rational trier of fact could have found
proof of guilt beyond a reasonable doubt.” Jackson, 443 U.S.
at 324; see also Juan H. v. Allen, 408 F.3d 1262, 1274 (9th
Cir. 2005). The Supreme Court has labeled this standard a
“twice-deferential standard” under AEDPA. Parker v.
Matthews, 132 S. Ct. 2148, 2152 (2012) (per curiam); see
also Boyer v. Belleque, 659 F.3d 957, 964–65 (9th Cir. 2011)
(explaining that Jackson’s standard is deferential, and the
state court’s application of Jackson must be “objectively
unreasonable” to grant habeas relief). And, “[a]lthough our
sufficiency of the evidence review is grounded in the
Fourteenth Amendment, we undertake the inquiry with
reference to the elements of the criminal offense as set forth
by state law.” Juan H., 408 F.3d at 1275.

    Here, based upon the evidence presented at trial, it was
not unreasonable for the state court to determine that a
rational trier of fact could have found proof of guilt beyond
a reasonable doubt of Creech’s assault and child
endangerment convictions. Thus, the state court decision was
not contrary to or an objectively unreasonable application of
Jackson.

                  A. Assault Convictions

    Creech was convicted of assault with a firearm under
California Penal Code section 245(a)(2): “Any person who
commits an assault upon the person of another with a firearm
shall be punished . . . .” The Code defines assault as “an
unlawful attempt, coupled with present ability, to commit a
violent injury on the person of another.” Id. § 240.

   Present ability to injure under California law exists when
a defendant “has attained the means and location to strike
12                CREECH V. FRAUENHEIM

immediately.” People v. Chance, 44 Cal. 4th 1164, 1174
(2008). An intended victim’s “effective steps to avoid injury
ha[ve] never been held to negate this present ability.” Id.; see
also People v. Raivart, 93 Cal. App. 4th 258, 267 (2007)
(holding that “the fact that [the target] may have been
sheltered, in whole or in part, by [a] building did not preclude
[a] jury from finding defendant had the present ability to
injure him”). Further, present ability does not require
actually pointing the weapon in someone’s direction, as
“[t]hat degree of immediacy is not necessary.” Chance,
44 Cal. 4th at 1176. However, “[a]bsent any evidence that
the gun was loaded, or that [a defendant] attempted or
threatened to use it as a bludgeon, there [i]s no proof of
assault with a firearm.” People v. Beleke, 33 Cal. App. 4th
1457, 1463 (1995), disapproved of on other grounds by
People v. Rodriguez, 20 Cal. 4th 1, 13–14 (1999).

    Creech argues that there was insufficient evidence to
satisfy the present ability element because his gun was loaded
with bird shot, which could not have injured anyone inside
the house. He argues that there was no evidence that the bird
shot entered the house, and no evidence that, if the pellets
entered the house, they would have carried enough force to
strike a person.

    California’s appellate courts have encountered arguments
similar to Creech’s. In People v. Valdez, the defendant shot
at a gas station attendant who was not hit by the bullet
because he was behind bulletproof glass. 175 Cal. App. 3d
103, 107 (1985). Valdez argued that the bulletproof glass
negated his present ability to apply physical force required for
assault with a firearm. Id. at 108. The court explained that
“[o]nce a defendant has attained the means and location to
strike immediately he has the ‘present ability to injure.’” Id.
                   CREECH V. FRAUENHEIM                       13

at 113. Further, “the fact an intended victim takes effective
steps to avoid injury has never been held to negate this
‘present ability.’” Id.; see also Chance, 44 Cal. 4th at
1173–74 (adopting this interpretation as “sound”). Because
Valdez had a loaded gun that was fully operational, because
he actually fired three times in the victim’s direction, and
because the victim was “easily within striking distance,” the
court had “no difficulty finding what appellant did indeed
satisfied this element.” Valdez, 175 Cal. App. 3d at 113.

    The court of appeal’s discussion of Creech’s actions is
consistent with Valdez and Chance. The court held that there
was sufficient evidence to convict Creech of assault with a
firearm. Taking the evidence in the light most favorable to
the prosecution, the court noted that Creech had attained the
means and location “to inflict serious injury . . . when he fired
his shotgun at his father-in-law’s home while he was standing
45 feet from the door.” It reasoned that all those who were
inside the house were in harm’s way during the shooting, and
it was “providential,” rather than determinative, that no one
was hurt. Further, there was evidence that bird shot is
capable of penetrating human tissue, and therefore the court
rejected the analogy to the unloaded gun cases. See, e.g.,
Chance, 44 Cal. 4th at 1172 n.7 (stating that “assault cannot
be committed with [an] unloaded gun, unless the weapon is
used as bludgeon”). Creech, the court concluded, had the
present ability to injure Jennifer, Sofia, and Julianne. Thus,
it was not objectively unreasonable for the court of appeal to
conclude that there was sufficient evidence adduced at trial to
prove present ability. See Jackson, 443 U.S. at 324; Parker,
132 S. Ct. at 2152.

   Creech also argues that there was insufficient evidence to
show that “[w]hen [Creech] acted, [he] was aware of facts
14                   CREECH V. FRAUENHEIM

that would lead a reasonable person to realize that [his] act by
its nature would directly and probably result in the
application of force to someone.” Judicial Council of Cal.
Crim. Jury Insts. No. 875 (“CALCRIM”);5 see also People v.
Wyatt, 48 Cal. 4th 776, 779 (2010) (explaining this
“reasonable person” requirement). He points to the locked
gate, the absence of cars that were normally there, and the
lack of any movement in or near the home. However, he
testified that he saw cars at his father-in-law’s home on the
morning of the shooting. Further, as the district court noted,
he took “no steps to ascertain that the house was
unoccupied.” Failing to take any such steps may have been
particularly unreasonable given that Creech knew he had poor
vision and did not wear his glasses that day. Therefore, it was
not unreasonable for the court of appeal to conclude that there
was sufficient evidence for a rational juror to find that a
reasonable person would have been alerted to the presence of
people in the home.6

    In sum, it was neither contrary to nor an unreasonable
application of clearly established Supreme Court law for the
court of appeal to hold that there was sufficient evidence for
a rational factfinder to convict Creech on each count of
assault with a firearm.




     5
    The jury instructions given at trial conform with CALCRIM 875
(2015).
 6
   Creech also argues that, because no one was actually injured, there was
insufficient evidence to convict him of assault with a firearm. One may
commit assault, however, even where a victim suffers no physical injury.
People v. Aguilar, 16 Cal. 4th 1023, 1028 (1997).
                  CREECH V. FRAUENHEIM                       15

           B. Child Endangerment Convictions

   California Penal Code section 273a(a) defines child
endangerment as follows:

        Any person who, under circumstances or
        conditions likely to produce great bodily harm
        or death, wilfully causes or permits any child
        to suffer, or inflicts thereon unjustifiable
        physical pain or mental suffering, or having
        the care or custody of any child, willfully
        causes or permits the person or health of that
        child to be injured, or willfully causes or
        permits that child to be placed in a situation
        where his or her person or health is
        endangered, shall be punished . . . .

Child endangerment “can occur in a wide variety of
situations: the definition broadly includes both active and
passive conduct, i.e., child abuse by direct assault and child
endangering by extreme neglect.” People v. Valdez, 27 Cal.
4th 778, 784 (2002). This statute is “intended to protect a
child from an abusive situation in which the probability of
serious injury is great,” but there is no requirement that great
bodily injury actually result. Id.

    Creech’s primary argument regarding the child
endangerment convictions is that it is harder to prove “great
bodily harm or death” than it is to prove the elements of
assault, which he maintains the prosecution failed to do. As
we rejected his challenge to the firearm assault convictions,
this argument does nothing to advance his challenge to the
child endangerment convictions. Additionally, Creech argues
that there was insufficient evidence to prove that the bird shot
16                 CREECH V. FRAUENHEIM

could have penetrated the house to reach the children. As
with the assault charges, it was not necessary to prove that the
children were actually injured; all that the prosecution had to
establish was a likelihood of great bodily harm. We agree
with the court of appeal that the evidence was sufficient to
establish this element of the offense. As the state court
explained, the prosecution was not required to offer evidence
that the pellets could have penetrated Sofia’s or Zachary’s
skin. Sofia was “in the study when Creech shot out its seven-
foot wide window.” As to Zachary, the jury could
“reasonably infer that [he] could have been seriously injured
had one of the shotgun blasts broken the sidelight window of
the front door.”

    Thus, we conclude that it was neither contrary to nor an
unreasonable application of clearly established Supreme
Court law for the court of appeal to conclude that there was
sufficient evidence for a rational factfinder to convict Creech
of child endangerment.

               IV. Sixth Amendment Claim

    Under the Sixth and Fourteenth Amendments, “any fact
[except for a prior conviction] that increases the penalty for
a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”
Apprendi, 530 U.S. at 490. Under Apprendi, the statutory
maximum is “the maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury verdict or
admitted by the defendant.” Blakely v. Washington, 542 U.S.
296, 303 (2004) (emphasis in original). But, “when a trial
judge exercises his discretion to select a specific sentence
within a defined range, the defendant has no right to a jury
                     CREECH V. FRAUENHEIM                             17

determination of the facts that the judge deems relevant.”
United States v. Booker, 543 U.S. 220, 233 (2005).

    In Cunningham, the Supreme Court addressed whether
California’s then existing determinate sentencing law
satisfied the requirements described in Apprendi, Blakely, and
Booker. Under California’s pre-Cunningham determinate
sentencing system, the Penal Code prescribed lower, middle,
and upper term sentences for most crimes. Cunningham,
549 U.S. at 277 (citing Cal. Penal Code § 288.5(a) (West
1999) (stating that a person convicted of continuous sexual
abuse of a child “shall be punished by imprisonment in the
state prison for a term of 6, 12, or 16 years”)). California
Penal Code section 1170(b) (West Supp. 2006) and California
Judicial Council Rule 4.420(a)7 required a court to impose the
middle term unless there were aggravating or mitigating
circumstances, which the court would determine based on
consideration of enumerated factors. Cunningham, 549 U.S.
at 277. Rule 4.405(d) stated that “[c]ircumstances in
aggravation” are “facts which justify the imposition of the
upper prison term.” Id. at 278. Those facts were required to
“be established by a preponderance of the evidence.” Id.
(quoting Rule 4.420(b)).

    The Supreme Court held that California’s system violated
the Sixth Amendment. Id. at 293. The Court explained that
the middle term was California’s “maximum” under Apprendi
because the middle term reflected the sentence to be imposed
based on a jury’s verdict without additional facts. Id. at 288.
Therefore, California’s determinate sentencing regime


 7
    As in Cunningham, we reference the Judicial Council Rules that were
in place before they were amended on January 1, 2007 to describe the pre-
Cunningham sentencing scheme. 549 U.S. at 278 n.5.
18                    CREECH V. FRAUENHEIM

violated the requirements outlined in Booker, Blakely, and
Apprendi because the judge, not the jury, found the
aggravating facts necessary to impose the upper term. Id. at
288–89. The Court recognized that other states allowed
judges to “exercise broad discretion . . . within a statutory
range,” a solution that “encounters no Sixth Amendment
shoal.” Id. at 294. However, the Court also stated that
California could “otherwise alter its system, so long as the
State observes Sixth Amendment limitations declared in this
Court’s decisions.” Id.

    California responded to Cunningham by passing SB 40,
which amended California Penal Code sections 1170 and
1170.3.8 See 2007 Cal. Stat. 93. The legislature retained the
three-option scheme, but “provide[d] that the choice of the
appropriate term would rest within the sound discretion of the
court.” Id. The amended statute instructs sentencing judges
to “select the term which, in the court’s discretion, best serves
the interests of justice,” and to “state the reasons for its
sentence choice on the record at the time of sentencing.” Id.;9



  8
   The initial legislative response was intended to “maintain stability in
California’s criminal justice system while the criminal justice and
sentencing structures in California sentencing [we]re being reviewed.”
5 Witkin, Cal. Crim. Law 4th (2012) Crim Trial, § 520(3) (quoting Stats.
2007, Chap. 3, § 1).
 9
    The law was set to expire on January 1, 2009, id., but the state senate
passed another bill in 2008, extending the expiration date to January 1,
2011. Sen. Bill 1701, 2007–2008 Reg. Sess. (2008); 2008 Cal. Stat. 97.
The Legislature declared “that the elimination of disparity and the
provision of uniformity of sentences can be best achieved by determinate
sentences fixed by statute in proportion to the seriousness of the offense
as determined by the Legislature to be imposed by the court with specified
discretion.” Id. In 2013, this scheme was extended, and is now set to
                       CREECH V. FRAUENHEIM                                19

Cal. Rules of Court, Rule 4.420(e) (“The reasons for selecting
one of the three authorized prison terms . . . must be stated
orally on the record.”). In selecting one of the three terms,
“the sentencing judge may consider circumstances in
aggravation or mitigation, and any other factor reasonably
related to the sentencing decision.” Cal. Rules of Court, Rule
4.420(b).10

    Creech was sentenced under this discretionary three-
option scheme.11 He argues that the court of appeal acted
contrary to or unreasonably applied clearly established
Supreme Court law when it concluded that the trial court did
not violate Creech’s Sixth Amendment rights.12


expire on January 1, 2017. 5 Witkin, Cal. Crim. Law 4th (2015 Supp.)
Crim Trial, § 520(3).
 10
    In response to the legislative change, the Judicial Council revised the
rules, effective May 23, 2007, that govern how to apply determinate
sentences, recognizing that a judge is to exercise his or her discretion. Id.
 11
    Assault with a firearm “shall be punished by imprisonment in the state
prison for two, three, or four years, or in a county jail for not less than six
months and not exceeding one year, or by a fine not exceeding ten
thousand dollars ($10,000) and imprisonment.” Cal. Penal Code
§ 245(a)(2). Child endangerment “shall be punished by imprisonment in
a county jail not exceeding one year, or in the state prison for two, four,
or six years.” Id. § 273a(a).
 12
    Although we have discussed Cunningham before, this is the first time
we have analyzed whether a sentence imposed under California’s post-
Cunningham sentencing scheme warrants habeas relief under AEDPA.
See United States v. Santana, 526 F.3d 1257 (9th Cir. 2008) (holding on
direct appeal that Cunningham does not render unconstitutional
procedures relating to revocation of supervised release); Butler v. Curry,
528 F.3d 624 (9th Cir. 2008) (holding that Cunningham did not announce
a “new rule” and could be applied retroactively in the habeas context,
20                   CREECH V. FRAUENHEIM

     The California Court of Appeal did not discuss whether
the regime under which Creech was sentenced comported
with the Sixth Amendment because, as it stated, it was duty
bound to follow the California Supreme Court’s decision in
Sandoval, 41 Cal. 4th 825. There, the court held that
affording the trial court “‘broad discretion’ in selecting
among the three terms specified by the statute for the offense
. . . cure[s] the constitutional defect in the statute.” Id. at
843–44. It reasoned that, in line with Cunningham, such a
solution would constitute “exercis[ing] broad discretion in
imposing a sentence within a statutory range” for which “the
defendant has no right to a jury determination of the facts that
the judge deems relevant.” Id. at 844 (quoting Booker,
543 U.S. at 233, and citing Cunningham, 549 U.S. at 294).
Further, in discussing the post-Cunningham sentencing
scheme, the court explained that the trial court “will be
required to specify reasons for its sentencing decision, but
will not be required to cite ‘facts’ that support its decision
. . . .” Id. at 846–47; see also Cal. Rules of Court, Rule
4.420(d)–(e).

     The state court’s determination that California’s post-
Cunningham revision did not violate Creech’s Sixth
Amendment right to a jury trial was neither contrary to nor an
unreasonable application of Cunningham, Booker, Blakely,
and Apprendi. The Supreme Court stated that permitting a
trial judge to exercise “discretion to select a specific sentence
within a defined range” would avoid a Sixth Amendment


where the petitioner was sentenced under California’s pre-Cunningham
scheme); Wright v. Dexter, 546 F.3d 1096 (9th Cir. 2008) (holding that,
in light of Butler, Cunningham cannot form the basis of an application for
a second or successive habeas petition). These post-Cunningham cases do
not impact our decision here.
                  CREECH V. FRAUENHEIM                      21

problem. Booker, 543 U.S. at 233. This is precisely what the
California legislature did. Further, the California Supreme
Court’s conclusion in Sandoval that the three possible choices
constitute a “range” is not contrary to or an unreasonable
application of Supreme Court law. Finally, whereas the trial
court was previously permitted to elevate a sentence to the
upper term based on “facts,” which violated the Sixth
Amendment, see Cunningham, 549 U.S. at 274, California
now calls those factors “reasons,” Cal. Rules of Court, Rule
4.420(d)–(e), a distinction the California Supreme Court
endorsed in Sandoval, 41 Cal. 4th 846–47. We therefore hold
that it was neither contrary to nor an unreasonable application
of clearly established Supreme Court law for the state court
of appeal to conclude that Creech’s Sixth Amendment right
to a jury trial was not violated when the trial court, in an
exercise of discretion, selected the upper term for Creech’s
convictions for assault with a firearm and child
endangerment.

   AFFIRMED.
