Thursday, December 29, 2011

Estrella v. Ollison, No. 10-56203 (12-29-11) (D. Nelson with Gould and Ikuta).

The petitioner argued that the state judge enhanced his sentence upon finding that he was on parole for a violent offense at the time of the instant offense. This violated Apprendi. The state courts said "no" because being on parole fit into the Apprendi prior conviction exception. The 9th disagreed, holding that parole terms can be modified or terminated by a court after sentence, and precedent in Butler recognized this for probation, which is analogous. There was error. Alas, for petitioner, the error was harmless. The 9th held that a jury would have easily found that the parole was for a violent offense. The 9th also concluded that the analysis included all the materials the court examined, including the probation report.


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