NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL JAMES MONTES, 

Petitioner-Appellant, 

 v. 

JEFFREY A. BEARD, 

Respondent-Appellee.

No. 16-56061 

D.C. No. 

5:15-cv-00330-FMO-KES 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Fernando M. Olguin, District Judge, Presiding

Submitted August 7, 2017**

Pasadena, California

Before: CALLAHAN and OWENS, Circuit Judges, and FABER,*** District 

Judge.

Petitioner Michael Montes (“Petitioner”) appeals from the district court’s 

denial of his petition for a writ of habeas corpus. As the parties are familiar with 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable David A. Faber, United States District Judge for the 

Southern District of West Virginia, sitting by designation.

FILED

AUG 15 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

the facts, we do not recount them here. We have jurisdiction under 28 U.S.C. 

§ 2253, and we affirm.

1. The district court did not err in denying the petition because the 

Apprendi1error is harmless.2 Petitioner argues that the California Superior Court 

imposed an unconstitutional sentence under counts three and four when it applied 

California Penal Code section 186.22(b)(4)(C)’s sentencing enhancement based on 

facts not found by the jury beyond a reasonable doubt—namely, that Petitioner 

attempted to dissuade Michael Pedroza and Dylan Valencia from reporting a 

robbery and that the attempt was “accompanied by an express or implied threat of 

force.” See People v. Lopez, 146 Cal. Rptr. 3d 113, 123 (Ct. App. 2012). Here, the 

jury was not asked to find whether Petitioner made such threats against Pedroza or 

Valencia. Accordingly, the California Superior Court’s imposition of section 

186.22(b)(4)(C)’s sentencing enhancement constituted Apprendi error. See 

Apprendi, 530 U.S. at 490 (“Other than the fact of a prior conviction, any fact that 

increases the penalty for a crime beyond the prescribed statutory maximum must 

be submitted to a jury, and proved beyond a reasonable doubt.”).

 

1 Apprendi v. New Jersey, 530 U.S. 466 (2000).

2 We review Petitioner’s Apprendi claim de novo because the California Superior 

Court’s April 9, 2014 opinion, the state’s last reasoned opinion, did not address the 

claim on the merits. See Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 

2005). 
3 

However, the error is harmless. “A properly preserved Apprendi error is 

reviewed for harmless error.” United States v. Guerrero-Jasso, 752 F.3d 1186, 

1193 (9th Cir. 2014). On direct appeal, “an error is harmless if the court finds 

beyond a reasonable doubt that the result would have been the same absent the 

error.” United States v. Zepeda-Martinez, 470 F.3d 909, 913 (9th Cir. 2006) 

(internal quotation marks omitted). On collateral review, an error is harmless 

unless “the federal court has grave doubt about whether a trial error of federal law 

had substantial and injurious effect or influence in determining the jury’s verdict.” 

Davis v. Ayala, 135 S. Ct. 2187, 2197-98 (2015) (internal quotation marks and 

citation omitted).

Here, Pedroza unambiguously testified that after Petitioner robbed him, 

Petitioner threatened to kill him if he told the police. Additionally, the record 

clearly shows that the threat of force was, at a minimum, implied to Valencia. 

After Petitioner “jacked” his phone, Valencia did not attempt to take it back 

because he was afraid that he would be “jumped.” Furthermore, as Petitioner was 

threatening Pedroza and punching him in the face multiple times, all of which 

occurred in front of and within ear shot of Valencia, Valencia did not attempt to 

assist Pedroza because one of Petitioner’s associates told Valencia not to help 

while reaching under his shirt as if he had a gun. Under these circumstances, we 

have no doubt, much less grave doubt, that the jury would have found that 
4 

Petitioner attempted to dissuade Valencia from reporting the robbery to law 

enforcement and that the attempt was accompanied by an implied or express threat 

of force. 

2. Petitioner has not made “a substantial showing of the denial of a 

constitutional right” so as to expand the certificate of appealability to include his 

ineffective assistance of counsel claim. See 28 U.S.C. § 2253(c)(2); Ninth Circuit 

Rule 22-1(e). Petitioner argues that his appellate counsel provided ineffective 

assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), by 

failing to raise the Apprendi error on direct appeal. As explained above, the 

Apprendi error is harmless, even under a direct-appeal standard. It therefore 

follows that Petitioner was not prejudiced by his appellate counsel’s failure to raise 

it on direct appeal. 

This conclusion is not altered by the two state-court cases cited by 

Petitioner. The Supreme Court has declared that “Apprendi errors are reviewed 

under the harmless error standard in Neder v. United States, 572 U.S. 1, 119 S. Ct. 

1827, 144 L.Ed.2d 35 (1999).” Zepeda-Martinez, 470 F.3d at 913. The fact that 

two state-court cases have deviated from this rule and remanded for resentencing 

in light of Apprendi error without engaging in harmless error review is of no 

consequence, as we presume that any state court that would have heard Petitioner’s

Apprendi challenge on direct appeal would “know and follow the law.” Reyes v. 
5 

Lewis, 833 F.3d 1001, 1010 (9th Cir. 2016) (citation omitted). 

AFFIRMED.