                                                                                    FILED
                             NOT FOR PUBLICATION                                    SEP 28 2011

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



                             FOR THE NINTH CIRCUIT


THEODORE B. VADEN,                                        No. 10-15164

                   Petitioner - Appellant,                D.C. No. 2:08-cv00178-
                                                          FCD-GGH
v.

DARRELL G. ADAMS; ATTORNEY                                MEMORANDUM*
GENERAL OF CALIFORNIA,

                   Respondents - Appellees.

                     Appeal from the United States District Court
                        for the Eastern District of California
                        Frank C. Damrell, Jr., District Judge

                      Argued and Submitted September 2, 2011
                             San Francisco, California

Before:       BERZON and BYBEE, Circuit Judges, and WHELAN,** Senior
              District Judge.

       Petitioner Theodore B. Vaden appeals the district court’s denial of his 28

U.S.C. § 2254 habeas corpus petition challenging the sentencing court’s imposition



       *
              This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Thomas J. Whelan, Senior District Judge for the Southern
District of California, sitting by designation.

                                             1
of a 5-year sentence enhancement under California Penal Code § 667(a). The

record establishes that the sentencing court’s imposition of the enhancement was

an Apprendi error. Because we find the error to be harmless, we affirm.

      This court reviews de novo a district court’s decision to deny a habeas

petition. Yee v. Duncan, 463 F.3d 893, 897 (9th Cir. 2006). An Apprendi 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) (quoting Neder v. United States, 527 U.S. 1, 19 (1999)).

Courts can find an error harmless only “where the record contains ‘overwhelming’

and ‘uncontroverted’ evidence supporting an element of the crime” and not “if ‘the

defendant contested the omitted element and raised evidence sufficient to support a

contrary finding.’” Id. (quoting Neder, 527 U.S. at 17-19).

      Petitioner was charged with violating California Penal Code § 245(a)(1).

That statute can be violated by the use of a “deadly weapon” or by use of “force

likely to produce great bodily injury.” The jury returned a guilty verdict but the

verdict form did not specify whether its decision was based on the “deadly

weapon” or the “force likely” prong of the statute.

      California Penal Code § 667(a) imposes a 5-year enhancement for a prior

serious-felony conviction only if the current conviction is also for a serious felony.



                                          2
Assault with a “deadly weapon” is a serious felony, but assault with “force likely

to produce great bodily injury” is not.1

      The sentencing court imposed the 5-year enhancement based on its own

finding that Petitioner’s § 245(a)(1) conviction qualified as a “serious felony.”

That finding violated Apprendi, which requires that “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.” Apprendi v. New Jersey, 530 U.S.

466, 490 (2000).    Thus, the question was whether there was overwhelming and

uncontroverted evidence that Vaden used a knife.

      Here, we do have a partial jury verdict on the pertinent question, establishing

that there was either a deadly weapon or force likely to produce great bodily

injury. The harmless error question is therefore narrowed to whether there was any

possibility that the jury would have found the latter rather than the former had the

question been put to it. There is not.

      There was testimony from the arresting officer that Vaden had the knife in

his jacket pocket when he was arrested, and the knife itself was admitted into

evidence. Moreover, the prosecutor expressly foreclosed reliance on the “force

likely” prong in his closing argument, arguing to the jury that it should base its


      1
        California Penal Code § 1192.7(c)(23) defines a serious felony as “any
felony in which the defendant personally used a dangerous or deadly weapon.”
                                           3
guilty verdict on the “deadly weapon” prong.

      Finally, if one construes defense counsel’s remarks in closing argument that

Petitioner only committed misdemeanor assault as contesting the use of a knife, the

jury clearly rejected that contention, as it found the felony alleged. Therefore,

there is essentially no possibility that the jury found that the assault was with force

likely to produce great bodily injury rather than with a knife.

      Petitioner has not raised evidence sufficient to support any finding other

than that he used a knife. See Zepeda-Martinez, 470 F.3d at 913.


      AFFIRMED.




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