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Creech v. Frauenheim

United States Court of Appeals, Ninth Circuit

August 31, 2015

WILLIS LAVONE CREECH, Petitioner-Appellant,
v.
SCOTT FRAUENHEIM, Respondent-Appellee

Argued and Submitted: December 11, 2014, San Francisco, California

Appeal from the United States District Court for the Northern District of California. D.C. No. 3:11-cv-03670-CRB. Charles R. Breyer, Senior District Judge, Presiding.

AFFIRMED.

 SUMMARY[**]

Habeas Corpus

The panel affirmed the district court's denial of California state prisoner Willis Lavone Creech's 28 U.S.C. § 2254 habeas corpus petition challenging his convictions for assault with a firearm and child endangerment.

The panel held that it was not unreasonable for the California Court of Appeal to conclude that there was sufficient evidence for a rational trier of fact to convict Creech of the assault with a firearm and child endangerment charges.

The panel also held that it was not contrary to or an unreasonable application of clearly established Supreme Court law to conclude that California's revised determinate sentencing law, which provides trial courts with discretion to decide among three sentences, is constitutional under Apprendi v. New Jersey.

Paul McCarthy (argued), and Robert J. Beles (argued), Law Offices of Robert J. Beles, Oakland, California, for Petitioner-Appellant.

Jill M. Thayer (argued), Deputy Attorney General, Kamala D. Harris, Attorney General of California, Gerald A. Engler, Senior Assistant Attorney General, and Gregory A. Ott, Deputy Attorney General, California Attorney General's Office, San Francisco, California, for Respondent-Appellee.

Before: A. Wallace Tashima and Richard A. Paez, Circuit Judges and Frederic Block,[*] Senior District Judge.

OPINION

PAEZ, Circuit Judge:

Willis Lavone Creech appeals the district court's denial of his 28 U.S.C. § 2254 habeas petition challenging his convictions for assault with a firearm and child endangerment. He challenges his convictions on the basis of alleged violations of his Fourteenth Amendment Due Process rights. Creech also challenges his sentence under California's determinate sentencing law as a violation of his Sixth Amendment right to a jury trial. We hold that it was not unreasonable for the California Court of Appeal to conclude that there was sufficient evidence for a rational trier of fact to convict Creech of the assault with a firearm and child endangerment charges. We also hold that it was not contrary to or an unreasonable application of clearly established Supreme Court law to conclude that California's revised determinate sentencing law, which provides trial courts with discretion to decide among three sentences, is constitutional under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. Facts and Procedural History

A. Events and Convictions at Issue[1]

Creech and his wife, Reanna, have a four-year-old daughter, Sofia, and a three-year-old son, Zachary.[2] One evening in September 2007, Creech and Reanna had an argument because Creech told Reanna he had obtained a shotgun. Reanna decided to leave him that night. A few weeks later, she took the kids to her father's house in Napa. Several days later, Creech and Reanna spoke on the phone. She told him the kids were at her father's and suggested that they talk another time to arrange for Creech to see them.

Later that night, Creech went to Reanna's father's house and asked him if he could see the children. Creech's father-in-law said " no." When Reanna returned to her father's home later that night, she saw Creech waiting there and drove away. He followed her. A highway patrol officer stopped Reanna for " driving 15 miles an hour in a 45." Reanna, who had been crying, explained to the officer the circumstances with Creech and their kids. At the time she was pulled over, Reanna was on the phone with the sheriff's department. Creech had contacted the police department and explained that he was trying to get in contact with his children, and that he had been " threatened off [his father-in-law's] property." The patrol officer told Reanna that, because Creech was the only custodial parent at her father's house, she had to go back to her father's, otherwise Creech would be allowed to take the children. Reanna decided to return to her father's house.

Creech testified at trial that he was angry with his father-in-law for not allowing him to see his children. So, he decided to return the following morning to shoot at and damage his house. He grabbed bird shot ammunition because " shooting through things. . . wasn't [his] intent."

Late that morning, Reanna, who was at her father's house, heard a " solid thud." She looked outside and saw Creech holding a shotgun about fifteen to twenty feet away from the house. Reanna shouted to her stepsister, Jennifer Curry, to grab Sofia. Jennifer saw glass flying everywhere. Jennifer also looked out of a window and saw Creech standing about fifteen to thirty feet away, aiming his shotgun and tracking her and Sofia with the barrel of the gun. Reanna grabbed Zachary and went to the downstairs bathroom, and Jennifer and Sofia joined them. Juliane Rush, Reanna's ...


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