Opinion
Case No. CV 10-4851-PA (DFM)
07-25-2014
GREGORY GADLIN, Petitioner, v. MATTHEW CATE, Warden, Respondent.
Order Accepting Findings and Recommendation of United States Magistrate Judge
Pursuant to 28 U.S.C. § 636, the Court has reviewed the petition, the other records on file herein, and the Report and Recommendation of the United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which objections have been made. As supplemented by the findings set forth below, the Court accepts the findings and recommendation of the Magistrate Judge.
With regard to Petitioner's claim that his conviction is a greater offense to the charge of which he was convicted in 1998, the Court finds that Petitioner's contentions are misplaced. The trial court properly found, based on the fact that the jury found Petitioner guilty of assault with a deadly weapon in a case where the prosecution's theory of the case relied on Petitioner's use of a knife and in which there was no contention that anyone else was involved in the attack, that the jury's guilty verdict necessarily included a finding that Petitioner personally used a knife. See People v. Equarte, 42 Cal. 3d 456, 465 (1986).
To the extent that Petitioner now claims that such a finding violated Apprendi v. New Jersey,530 U.S. 466 (2000), Petitioner waived a jury trial on the issue of his prior convictions. 2 CT 448. Such a waiver encompassed the waiver of his right to a jury determination of whether his current offense constitutes a serious felony. See, e.g., People v. Arnett, 139 Cal. App. 4th 1609, 1614 (2006) (holding that "the waiver of his right to a jury trial on his prior conviction encompassed his right to a jury determination of whether his current offense was a serious felony").
IT IS THEREFORE ORDERED that Judgment be entered denying the petition and dismissing this action with prejudice. Dated: July 25, 2014
/s/ Percy Anderson
PERCY ANDERSON
United States District Judge