Gill v. Ayers, 01-55808.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation342 F.3d 911
Docket NumberNo. 01-55808.,01-55808.
PartiesAmbrose Gill, Petitioner-Appellant, v. Robert J. Ayers, Warden; Attorney General of the State of California, Respondents-Appellees.
Decision Date28 August 2003

Ralph H. Goldsen, Goleta, California, for the petitioner-appellant.

Teresa Torreblanca, Deputy Attorney General, San Diego, California, for the respondents-appellees.

Appeal from the United States District Court for the Central District of California; Alicemarie H. Stotler, District Judge, Presiding. D.C. No. CV-00-00541-AHS.

Before: David R. Thompson and Johnnie B. Rawlinson, Circuit Judges and William W Schwarzer,* Senior District Judge.

Opinion by Judge David R. Thompson; Dissent by Judge Rawlinson.


In response to the State's petition for rehearing, the opinion filed March 6, 2003, No. 01-55808, appearing at 322 F.3d 678, together with Judge Rawlinson's dissent, is WITHDRAWN. That opinion may not be cited as precedent by or to this court or any district court of the Ninth Circuit. A new opinion with Judge Rawlinson's dissent is filed herewith.

The parties may file further petitions for rehearing and for rehearing en banc.


DAVID R. THOMPSON, Circuit Judge:


California state prisoner Ambrose Gill appeals the district court's denial of his petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Gill, serving a sentence of 55 years to life under California's "Three Strikes Law," contends that he was denied due process of law at his Three Strikes sentencing hearing.

In 1976, Gill was convicted of one count of assault with a deadly weapon and three counts of assault by means of force likely to produce great bodily injury, all in violation of California Penal Code section 245(a)(collectively, the "1976 conviction"). Under California's Three Strikes scheme, the 1976 conviction could only count as a "strike" upon a finding that Gill had personally used a dangerous or deadly weapon during the assault. See Cal.Penal Code §§ 667(d) and (e), 1192.7(c)(23). At Gill's Three Strikes sentencing hearing, the court considered documentation from the record of the 1976 conviction, including Gill's own statements as paraphrased in a probation department report. The court, however, refused to allow Gill to testify to explain the statements attributed to him. We conclude that the decision refusing to allow Gill to testify violated his Fourteenth Amendment right to due process, was an unreasonable application of clearly established federal law as determined by the Supreme Court, and was not harmless. Accordingly, we reverse the district court's denial of Gill's habeas petition.


The prior "strike" Gill challenges in this appeal is his 1976 conviction of four counts of violating California Penal Code section 245(a) (currently section 245(a)(1), assault with a deadly weapon or by force likely to produce great bodily injury).

Not all section 245(a)(1) violations constitute strikes under California law.1 In California, "strikes" include "violent felonies" defined in section 667.5(c) and "serious felonies" defined in section 1192.7(c). Section 245(a)(1) is not explicitly listed in either section. Instead, to qualify a section 245(a)(1) conviction as a strike, the prosecution must establish that the defendant "personally inflict[ed] great bodily injury on any person, other than an accomplice, or . . . personally use[d] a firearm" under section 1192.7(c)(8) or that he "personally use[d] a dangerous or deadly weapon" under section 1192.7(c)(23):

One may thus violate section 245(a)(1) in two ways that would not qualify as "serious" felonies under section 1192.7, Subdivision (c): First, one may aid and abet the assault without personally inflicting great bodily harm or using a firearm. Second, one may commit the assault with force "likely" to cause great bodily injury without, however, actually causing great bodily injury or using a deadly weapon. Accordingly, the least adjudicated elements of the crime defined in section 245(a)(1) are insufficient to establish a "serious" felony.

People v. Rodriguez, 17 Cal.4th 253, 261, 949 P.2d 31, 36, 70 Cal.Rptr.2d 334, 340 (1998) (citing People v. Equarte, 42 Cal.3d 456, 465, 722 P.2d 890, 895-96, 229 Cal.Rptr. 116, 121-22 (1986)), superseded by statute, but not retroactive to affect foregoing quotation, as stated in People v. James, 91 Cal.App.4th 1147, 1149, 111 Cal.Rptr.2d 292, 293-94 (2001).

At Gill's Three Strikes sentencing hearing, the prosecutor offered documentation from Gill's 1976 section 245(a)(1) conviction to prove that the conviction qualified as a "strike." The documentation disclosed that the offense arose from an incident that occurred at a Colton, California party. A group of youths from Colton became involved in a physical altercation with a group of youths from Fontana, California. Gill was aligned with the Fontana group. Four or five persons from the Colton group were injured by someone from the Fontana group wielding a baseball bat. Gill and another man were charged with those assaults. Gill was convicted of one count of assault with a deadly weapon and three counts of assault by means of force likely to produce great bodily injury, all in violation of section 245(a)(1).

In finding that Gill violated section 245(a)(1), the jury could have found that he used a deadly weapon, that he employed force likely to produce great bodily injury, or that he aided someone else who committed such acts. We cannot tell from the jury's verdict what particular facts it found. We do know, however, that the jury did not determine by its verdict that Gill personally used any weapon. Therefore, to qualify the 1976 section 245(a)(1) conviction as a strike under section 1192.7(c)(23), the State had to prove the additional fact that Gill had personally used the baseball bat as a deadly weapon.2

To prove that fact, the State offered: (1) the information charging Gill with one count of assault with a deadly weapon with intent to commit murder and four counts of assault by means of force likely to produce great bodily injury; (2) the jury verdicts finding Gill guilty of one count of assault with a deadly weapon (a lesser included offense of the crime of assault with a deadly weapon with intent to commit murder) and three counts of assault by means of force likely to produce great bodily injury; (3) a minute order reflecting the jury's verdicts; (4) a minute order from the 1976 sentencing hearing; and (5) an excerpt from the 1976 probation department report. This documentation, the court ruled, constituted part of the original record. Consistent with California case law, the trial judge admitted the statements attributable to Gill from the probation report, but excluded, on hearsay grounds, other sections of that report. The court denied Gill's request to testify to explain his reasons for making the statements and to assert that he did not personally use the baseball bat as a deadly weapon.

In making this ruling, the court recognized California Supreme Court and appellate court decisions which clearly held that, in proving the substance of a prior conviction, the prosecution is limited to the record of conviction. Those cases, however, as the sentencing court acknowledged, left open the question whether a defendant is similarly restricted.3 See, e.g., People v. Reed, 13 Cal.4th 217, 229, 914 P.2d 184, 192, 52 Cal.Rptr.2d 106, 114 (1996) ("We express no opinion as to whether a defendant would be entitled to call live witnesses to dispute [the] circumstances of the prior offense . . . ."); People v. Guerrero, 44 Cal.3d 343, 356 n. 1, 748 P.2d 1150, 1157, 243 Cal.Rptr. 688, 696 (1988) (concluding that a trial court may look to the entire record of conviction in determining the truth of prior-conviction allegations, but declining to address "whether on the peculiar facts of an individual case the application of the rule set forth herein might violate the constitutional rights of a criminal defendant").

In precluding Gill from testifying, the sentencing court reasoned that if he were to testify, an element of surprise would be injected into the proceeding, and the State would have difficulty presenting rebuttal evidence in view of the passage of time between the 1976 conviction and the 1999 Three Strikes sentencing hearing. Counting the 1976 conviction as a "strike" and applying the Three Strikes Law, the court sentenced Gill to 80 years to life in prison.4

Gill appealed his Three Strikes sentence, arguing, inter alia, that the sentencing court had erred in refusing to allow him to testify. The California Court of Appeal for the Fourth Appellate District rejected this argument. The court reasoned that:

`The least adjudicated elements of the prior conviction remain the same whether it is questioned in the trial court at the time of the determination of habitual criminality or on habeas corpus after such determination has become final. Neither the People nor the defendant can go behind those adjudicated elements in an attempt to show that he committed a greater, lesser, or different offense.' [In re Finley, 68 Cal.2d 389, 393, 438 P.2d 381, 384, 66 Cal.Rptr. 733, 736 (1968)]. Thus, the authority upon which Guerrero rests treats prosecution and defense alike — neither is permitted to reopen the proceedings to take testimony.

People v. Gill, Consolidated Case Nos. G022286, G022287, G022288, slip op. at 10-11 (Cal.Ct.App. March 9, 1999) (quoting People v. Bartow, 46 Cal.App.4th 1573, 1582, 54 Cal.Rptr.2d 482, 487 (1996)) (emphasis in original). The court also noted that Gill had the same opportunity as the State to submit any documents from the record of the conviction, and concluded that Gill had "demonstrated no error, constitutional or otherwise." Id. at 11.

Gill timely filed a petition for review in the California Supreme Court. That court...

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