Opinion
NO. CV 10-09761 JAK (SS)
03-01-2012
MICHAEL J. CURFMAN, Petitioner, v. K. ALLISON, Warden, Respondent.
ORDER ACCEPTING FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS OF
UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records and files herein, the Report and Recommendation of the United States Magistrate Judge, and Petitioner's Objections. After having made a de novo determination of the portions of the Report and Recommendation to which Objections were directed, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge.
The Court notes that the Ninth Circuit's recent decision in Estrella v. Ollison, __ F.3d __, 2011 WL 6826376 (9th Cir. Dec. 29, 2011), does not change the outcome of Petitioner's upper term sentencing claim. In Estrella, the Ninth Circuit held that a trial court's reliance on a petitioner's parole status to impose an upper term sentence violated his Sixth Amendment jury trial rights, although the violation was ultimately harmless. Id. at *2-5. Here, the trial court sentenced Petitioner pursuant to California's amended determinate sentencing law, which vests trial courts with discretion to impose upper term sentences and does not depend on the finding of any aggravating factors. See Butler v. Curry, 528 F.3d 624, 651 n. 20 (9th Cir. 2008). Thus, imposition of the upper term sentence was not constitutional error. (See Report at 12-13).
IT IS ORDERED that the Petition is denied and Judgment shall be entered dismissing this action with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on Petitioner and counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
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JOHN A. KRONSTADT
UNITED STATES DISTRICT JUDGE