                                                                            FILED
                               NOT FOR PUBLICATION                           NOV 17 2010

                                                                         MOLLY C. DWYER, CLERK
                        UNITED STATES COURT OF APPEALS                    U .S. C O U R T OF APPE ALS




                               FOR THE NINTH CIRCUIT



BENNY LEON, JR.,                                    No. 09-15696

              Petitioner-Appellant,                 D.C. No. 06-CV-01855-FCD-CHS

  vs.
                                                    MEMORANDUM *
RICHARD KIRKLAND, et al.,

              Respondents-Appellees.


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

                        Argued and Submitted September 14, 2010
                                San Francisco, California

Before: WALLACE and THOMAS, Circuit Judges, and MILLS, Senior District
Judge.**

        Benny Leon, Jr., a California state prisoner, appeals from the district court’s

denial of his petition under 28 U.S.C. § 2254 for a writ of habeas corpus. We have



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
             The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We review the district court’s

denial of a habeas petition de novo, while its factual findings are reviewed for clear

error. See McMurtrey v. Ryan, 539 F.3d 1112, 1118 (9th Cir. 2008). We affirm in

part and reverse and remand in part.

         We conclude that any error the trial court made in excluding evidence that Leon

sought to offer for the purpose of establishing his state of mind was harmless. The

district court correctly determined that Leon is not entitled to habeas relief on that

issue.

         Leon also seeks habeas relief based on a sentencing error. Following his

conviction for voluntary manslaughter, Leon was sentenced to an upper term based

on facts which were found by the trial judge.         “Other than the fact of a prior

conviction, 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). The Supreme Court later

held that “the ‘statutory maximum’ for Apprendi purposes 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).

         The Supreme Court later held that under California’s determinate sentencing



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law, an upper term sentence could be imposed only if the trial judge found an

aggravating circumstance. Cunningham v. California, 549 U.S. 270, 288 (2007).

Accordingly, the middle term under California’s statutes serves as the relevant

statutory maximum for Apprendi purposes. See id.

      Although Cunningham had not been decided when Leon’s conviction became

final, this court has determined that Cunningham did not announce a new rule of

constitutional law and thus may be applied retroactively on collateral review. See

Butler v. Curry, 528 F.3d 624, 639 (9th Cir. 2008). In considering Leon’s habeas

petition, the district court correctly found that Cunningham applies and that the state

appellate court’s determination of Leon’s claim was contrary to clearly established

Supreme Court precedent. However, the district court found that the sentencing error

was harmless.

      The trial judge found that the victim in this case was “particularly vulnerable”

under California law because the crime occurred as she was entering her own home.

The judge emphasized that Leon was inside a dark apartment and basically invisible

to the victim as she was entering the residence. Because of the lighting outside, the

victim was totally visible to Leon. The trial court determined that the aggravating

circumstance applied, finding that there was not grave doubt that a jury would have

found the victim to be “particularly vulnerable” to the crime of voluntary



                                          3
manslaughter.

      California law defines “vulnerable” as “defenseless, unguarded, unprotected,

accessible, assailable, one who is susceptible to the defendant’s criminal act.” Butler,

528 F.3d at 649 (internal quotation marks and citations omitted). A victim who is

vulnerable to a “special or unusual degree, to an extent greater than in other cases,”

is “particularly” vulnerable. Id. The court noted that a victim is not “particularly”

vulnerable if “all victims of the crime of conviction are vulnerable in the same

manner.” Id.

      In Butler, we determined there was grave doubt that a jury would have found

that the victim was “a particularly vulnerable victim of the crime of domestic assault

. . . because she was attacked from behind.” Id. We observed that, “[i]n the

overwhelming majority of cases, ‘particularly vulnerable victims’ have had inherent

personal characteristics that, sometimes in combination with the manner in which the

crime was committed, render them more vulnerable than other victims.” Id. (citations

omitted).

      None of those characteristics–such as age or physical infirmity–were factors in

this case. Other more changeable aspects of a victim’s status have been relied on by

California courts, such as intoxication or temporary incapacity. See id. However,

none of those states are factors in this case. We noted that we were aware of no case



                                           4
which determined that “attacking a victim from behind was the sole basis for a finding

of particular vulnerability.” Id. We further observed:

         A jury might have concluded that having one’s back turned is similar to
         being asleep in the sense that both are temporary states, and that in each
         case the defendant takes advantage of a moment of greater assailability.
         But they are not so similar that we can say with confidence, particularly
         in light of the many cases focused on characteristics such as age and
         physical frailty, that a jury would conclude that an individual with her
         back turned is a “particularly vulnerable victim.”

Id. at 650. We concluded that we had “grave doubt” a jury would have determined,

beyond a reasonable doubt and based only on the factor of being attacked from

behind, that the victim was a “particularly vulnerable” victim of domestic violence.

See id. at 651.

         The manner that the victim was attacked in this case is analogous to being

attacked from behind. None of the characteristics that California courts have used to

support a finding of particular vulnerability are present here. Accordingly, we have

“grave doubt” that a jury in this case would have found beyond a reasonable doubt

that the victim was particularly vulnerable.

         Although the issue of the enhancement for “great violence, cruelty, viciousness

and callousness” was contested before the district court, it was not relied on in the

magistrate judge’s findings and recommendations, which were adopted by the district

judge.     Leon contends that the record does not support the enhancement.            The



                                             5
Respondent does not address the issue in its brief.

      Accordingly, we affirm in part, reverse in part, and remand to the district court

with instructions to grant the writ on the sentencing issue.

      AFFIRMED         in   part;   REVERSED          and   REMANDED        in   part.

Petitioner–Appellant awarded costs on appeal.




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