                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 30 2014

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



                           FOR THE NINTH CIRCUIT


DAVID RYAN UNRUH,                                No. 10-56845

              Petitioner - Appellant,            D.C. No. 2:08-cv-00974-GW-SS

  v.
                                                 MEMORANDUM*
RICK HALL, Acting 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 January 6, 2014
                               Pasadena, California

Before:       KOZINSKI, Chief Judge, REINHARDT and CLIFTON, Circuit
              Judges.

       There’s no dispute that Unruh suffered a constitutional violation when he

was given an enhanced sentence based on aggravating facts found by a judge, not a

jury. See generally Cunningham v. California, 549 U.S. 270 (2007). Our only

task, therefore, is to determine whether this constitutional error was harmless,


          *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                                 page 2
applying the standard set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993). See

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

      We are in grave doubt that the jury would necessarily have found that

Unruh’s crime “disclos[ed] a high degree of cruelty, viciousness, or callousness.”

Cal. R. Ct. 4.421(a)(1); see also O’Neal v. McAninch, 513 U.S. 432, 436 (1995).

Given that it could not consider facts that are elements of the crime of child

endangerment, see Cal. R. Ct. 4.420(d), nor Unruh’s use of a firearm, see Cal.

Penal Code § 1170(b), a jury could reasonably conclude that Unruh’s conduct

wasn’t especially vicious or callous. Unruh is a Marine Corps veteran whose crime

resulted from a short-lived emotional outburst, and there is no evidence that he

planned or desired to harm the victim, T., prior to the altercation. The entire event

lasted only a few minutes, T. suffered no physical harm and Unruh expressed

remorse immediately after. Given these facts, a jury could find that Unruh’s

conduct was a momentary (albeit dangerous) act of desperation, not the result of a

cruel, vicious or callous disposition. See, e.g., People v. Esquibel, 166 Cal. App.

4th 539, 558 (2008).

      A jury could also reasonably find that Unruh doesn’t pose a “serious danger

to society.” Cal. R. Ct. 4.421(b)(1). His violent outburst momentarily put two
                                                                                page 3
people in great danger, but he had no other criminal history and Sterling testified

that he’d never before been violent towards her or T.

      Nor was T. necessarily a “particularly vulnerable” victim. Cal. R. Ct.

4.421(a)(3). While T. was a minor, this characteristic is inherent in the crime of

willful child endangerment. See Cal. Penal Code § 273a(a). That he was attacked

in his home may be, but is not necessarily, a factor that makes a victim particularly

vulnerable. Given all the circumstances in this case, we “cannot say, with fair

assurance, after pondering all that happened,” see Merolillo v. Yates, 663 F.3d 444,

454 (9th Cir. 2011), that the jury would have found beyond a reasonable doubt that

T. was vulnerable to a “special or unusual degree, to an extent greater than in other

cases.” People v. Loudermilk, 195 Cal. App. 3d 996, 1007 (1987) (quoting People

v. Smith, 94 Cal. App. 3d 433, 436 (1979)); see also Butler, 528 F.3d at 649.

      We therefore have grave doubt that a jury would have found any of these

aggravating factors beyond a reasonable doubt and cannot say that the

constitutional error in Unruh’s sentencing was harmless. See O’Neal v.

McAninch, 513 U.S. 432, 436 (1995); see also Butler, 528 F.3d at 648.
                                                                          page 4
      We REVERSE the district court’s judgment, GRANT Unruh’s petition for

a writ of habeas corpus and REMAND for proceedings consistent with this

disposition.
                                                                            FILED
Unruh v. Hall, No. 10-56845                                                   MAY 30 2014

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



      I respectfully dissent from the majority’s disposition of this case, because I

agree with the district court that the constitutional violation that occurred was

harmless under the standard of Brecht v. Abrahamson, 507 U.S. 619 (1993).

      In my view, Unruh has failed to establish that a jury would not have found,

beyond a reasonable doubt, that Unruh’s acts of violence, in particular his

treatment of T., a 13-year-old boy, involved a high degree of viciousness and

callousness. Unruh shot T.’s mother in the face. After T. discovered his mother

bleeding and lying on the floor, Unruh grabbed a larger gun and held it to T’s head,

holding T. hostage for two minutes and causing him to believe he was going to die.

      I am not in grave doubt as to what conclusion the jury would have reached.

It seems to me more likely than not that a jury would have found, as did the trial

court, that this sequence of events revealed a high degree of viciousness and

callousness. The key facts that made Unruh’s crime a highly vicious and callous

one were beyond those necessary to establish the essential elements of the counts

of violence against T. or of the associated use of a firearm enhancement imposed

on each count. See Cal. Penal Code § 1170(b) (2005); Cal. R. Ct. 4.420(d) (2005).

      Having concluded that one of the aggravating circumstances, the high degree

of viciousness and callousness involved, would have been found by a jury, it is
unnecessary to consider the other potential aggravating circumstances. The upper

term sentence may be validly imposed based on a single aggravating circumstance.

See Butler v. Curry, 528 F.3d 624, 642–43 (9th Cir. 2008). As a result, the

constitutional violation in this case was harmless. I would affirm.




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