Gautt v. Lewis, 03-55534.

Citation489 F.3d 993
Decision Date06 June 2007
Docket NumberNo. 03-55534.,03-55534.
PartiesDarrell Anthony GAUTT, Petitioner-Appellant, v. Gail LEWIS, Warden, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Wayne Young, Santa Monica, CA, for the petitioner-appellant.

Ryan B. McCarroll and Steven E. Mercer, Deputy Attorney Generals, Los Angeles, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; Percy Anderson, District Judge, Presiding. D.C. No. CV-01-06771-PA.

Before: M. MARGARET McKEOWN and MARSHA S. BERZON, Circuit Judges, and SAMUEL P. KING,* Senior District Judge.

BERZON, Circuit Judge.

We consider whether Darrell Anthony Gautt's constitutional due process right to be informed of the charges against him was violated when he was charged with a sentencing enhancement under one statute, section 12022.53(b) of the California Penal Code,1 but had his sentence enhanced under a second, different statute, section 12022.53(d). The first statute, not the second, was alleged by number and by nearly verbatim description in the information. We hold that Gautt's due process right was indeed violated when, as a result of this discrepancy, he was sentenced pursuant to a twenty-five-year-to-life enhancement, rather than a ten-year enhancement, and that the California appellate court's decision to the contrary constituted "an unreasonable application of [ ] clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d). We therefore reverse the district court's denial of Gautt's petition for a writ of habeas corpus. On remand, the district court shall grant a conditional writ of habeas corpus, ordering that the state release Gautt unless it resentences him.2

I

The barebones facts of Gautt's crime are that on January 10, 1998, Gautt shot and killed Samantha Fields, after demanding that she pay him $25 for cocaine he had given her the day before. Just prior to the shooting, Gautt had used cocaine. Gautt threatened Fields by holding the gun close to her. The gun went off, but none of the several people in the room saw the shooting. Gautt later maintained that the gun fired only because Fields reached up and knocked either his hand or the gun. Fields died from a single gunshot wound to her chest. Afterwards, Gautt threatened the other people in the room with the gun and made them help him dispose of the body. Further details of the crime do not matter for purposes of the current appeal.

The facts that do matter here are procedural and concern the content of Gautt's information, the trial court's instructions to the jury, the closing arguments, the verdict form, and the ultimate judgment, as well as the substance of the two statutory provisions at the center of this casesections 12022.53(b) and 12022.53(d).

(1) The information charged Gautt with one count of murder and one count of possession of a firearm by a felon under sections 187(a) and 12021(a)(1), respectively. It also charged him with violating sections 1203.06(a)(1), 12022.5(a)(1), and 12022.53(b), each of which imposes additional penalties on defendants convicted of "personally us[ing] a firearm" in the commission of a crime. As stated in the information, a conviction under section 12022.53(b) translates into a ten-year sentence enhancement.3 The information made no reference to section 12022.53(d). This omission is the pivotal fact in this case.

Sections 12022.53(b) and 12022.53(d) differ in several critical respects. In full, section 12022.53(b) states:

Notwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a),4 and who in the commission of that felony personally used a firearm, shall be punished by a term of imprisonment of 10 years in the state prison, which shall be imposed in addition and consecutive to the punishment prescribed for that felony. The firearm need not be operable or loaded for this enhancement to apply.

CAL. PENAL CODE § 12022.53(b) (emphasis added).

In contrast, section 12022.53(d) provides:

Notwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a) . . . and who in the commission of that felony intentionally and personally discharged a firearm and proximately caused great bodily injury . . . to any person other than an accomplice, shall be punished by a term of imprisonment of 25 years to life in the state prison, which shall be imposed in addition and consecutive to the punishment prescribed for that felony.

Id. § 12022.53(d) (emphasis added).

Crucially, while conviction under section 12022.53(b) requires only that the defendant "personally used a firearm," conviction under section 12022.53(d) requires considerably more—namely, that the defendant "personally discharged a firearm," that he did so "intentionally," and that he "proximately caused great bodily injury." Commensurate with its less serious nature, conviction under section 12022.53(b) leads to a ten-year sentence enhancement; in contrast, a conviction under section 12022.53(d) generates a far heavier, twenty-five-year-to-life, enhancement.

(2) Despite these major differences, the trial court confused the two statutes when time came to instruct the jury. While ostensibly reciting the elements for section 12022.53(b), the trial judge actually recited those additional elements unique to section 12022.53(d): personal discharge, intentional discharge, and proximate causation of great bodily injury—here, death:5

It is alleged in Count One that in the commission or attempted commission of the crime charged therein described, the defendant Darrell Gautt personally discharged a firearm, causing the death of Samantha Fields, within the meaning of Penal Code section 12022.53, subdivision b.

If you find the defendant guilty of the crime of murder, you must determine whether the defendant personally discharged a firearm in the commission or attempted commission of the crime of murder, and whether it proximately caused the death of Samantha Fields.

The word firearm as used in this instruction includes a handgun. The term personally discharged a firearm, as used in this instruction, means that the defendant must have personally and intentionally fired it.

(Emphases added.)

(3) Despite these instructions, the prosecution during its subsequent closing argument specifically disavowed any need to show that Gautt had intentionally discharged the weapon, the requirement unique to section 12022.53(d). Instead, the prosecutor focused solely on Gautt's use of the handgun, the only showing required under section 12022.53(b). As she told the jury:

He pulled the trigger. I submit to you at that moment he meant to. But that's not at issue in this case because I'm not asking you to find he intended to do it.

What I'm asking you and hope actually showing you, looking at the law and applying the facts in this case, that killing in this case resulted from the intentional act of pointing a loaded handgun at Samantha Fields with his finger on the trigger . . . .

(Emphases added.) Similarly, when the prosecutor later recited the elements of the "personal discharge" enhancement, she did not mention intent to discharge the firearm; instead, she indicated that it was sufficient that "[h]e had his finger on the trigger when the murder took place."

(4) The pattern of statutory confusion and conflation that began with the trial judge's instructions to the jury repeated itself when the jury completed its verdict form. The verdict form asked jurors, if they found Gautt guilty of one count of second-degree murder, under section 187(a), and one count of possession of a firearm by a felon, under section 12021(a)(1), to decide whether Gautt was also guilty under sections 1203.06(a)(1) and 12022.5(a)(1), for "personally us[ing] a firearm, to wit: handgun" during "the commission and attempted commission" of Fields's murder. Until this point then, the verdict form perfectly corresponded to the charges presented in the information. The jury's finding that Gautt was guilty under sections 1203.06(a)(1) and 12022.5(a)(1) therefore presents no due process problems.

The verdict form and the information deviated, however, with regard to section 12022.53(b). According to the verdict form, the jury was to decide whether Gautt

personally discharged a firearm in the commission of the crime of MURDER that porximately [sic] caused the death of Samantha Fields, within the meaning of Penal Code Sections 12022.5(a)(1) and 12022.53(b).

(Emphases added.) In other words, the verdict form cited to section 12022.53(b), but listed the personal discharge and proximate causation elements unique to section 12022.53(d). Complicating matters even further, the verdict form did not include section 12022.53(d)'s element of intentional discharge.6 The jury, using the verdict form, found Gautt guilty of violating section 12022.53(b), the ten-year enhancement, but applied some of the elements of section 12022.53(d)'s twenty-five-year-to-life enhancement.7

(5) The abstract of judgment contains yet one more discrepancy. Although that document listed section 12022.53(b), the ten-year enhancement, as the basis for a sentence enhancement, it also stated that Gautt's sentence was to be enhanced twenty-five years to life—the applicable enhancement under section 12022.53(d).

Gautt was sentenced to a term of imprisonment of forty-nine years and eight months to life, based in part on the twenty-five-year-to-life enhancement.8 He appealed to the California Court of Appeal, which affirmed his conviction and sentence in an unpublished opinion but ordered the abstract of judgment "amended" to refer to section 12022.53(d), not section 12022.53(b), as the basis for the twenty-five-years-to-life enhancement. Gautt's petition for review to the California Supreme Court was denied, as was his petition for a writ...

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