United States v. 2005-12-22 | 03-56137 | FERRIZZ VGIURBINO | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ANTHONY THOMAS FERRIZZ, No. 03-56137
Petitioner-Appellant, D.C. No.
v.  CV-02-05837-GLT
G. J. GIURBINO, OPINION
Respondent-Appellee. 
Appeal from the United States District Court
for the Central District of California
Gary L. Taylor, District Judge, Presiding
Argued and Submitted
February 7, 2005—Pasadena, California
Filed December 23, 2005
Before: Harry Pregerson, William C. Canby, Jr., and
Robert R. Beezer, Circuit Judges.
Opinion by Judge Canby
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COUNSEL
Kenneth M. Stern, Woodland Hills, California, for the
petitioner-appellant.
Timothy M. Weiner, Deputy Attorney General, Los Angeles,
California, for the respondent-appellee.
OPINION
CANBY, Circuit Judge
Anthony Ferrizz appeals the district court’s denial of his
habeas corpus petition, brought pursuant to 28 U.S.C. § 2254.
Ferrizz contends that his state convictions violate due process
because the jury’s guilty verdicts on two counts of the charges
— burglary and grand theft of lost property — are factually
inconsistent. We conclude that, in the circumstances of this
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case, the decision of the California Court of Appeal upholding
both verdicts was not “contrary to, or . . . an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). We therefore affirm the judgment of the district
court.
I
The facts are uncontested. Ferrizz and Manual Escobedo
worked in roofing. In March of 2000, Holly Cirivello, the vic-
tim, called them for a roof repair. When they arrived in the
morning, she took them into her master bedroom to show
them where water was leaking into her room from the roof.
On the wall of the bedroom, Cirivello had hung two antique
purses, one of which contained an expensive wedding ring.
After pointing out the leaks, Cirivello led the two men out of
her house. They told her that they would return later in the
day to repair the roof. Cirivello then left the house, locking all
the doors.
When Ferrizz and Escobedo returned, Escobedo primarily
worked on the roof while Ferrizz assisted both on the ground
and on the roof. For the most part, Ferrizz did not leave Esco-
bedo’s sight for more than a minute or two. At one point,
however, Ferrizz was out of sight for slightly longer.
When Cirivello returned to her house that evening, Ferrizz
and Escobedo were gone, having finished the repairs earlier
that day. She noticed a muddy heel print next to her office
sofa. (It had begun raining only after Cirivello left her house
in the morning.) Approximately a week later, she also noticed
that the window behind the sofa was unlocked, and she
noticed dried leaves behind the sofa. She always kept this
window locked.
Shortly thereafter, she discovered that her wedding ring
was missing from the purse on the wall of her master bed-
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room. She also noticed two palm prints on the unlocked win-
dow. She had not had any visitors other than Ferrizz and
Escobedo between the time she had placed her ring in the
purse and the time she discovered it missing. At this point,
Cirivello called the sheriff’s department to report her ring
missing.
Meanwhile, three days before Cirivello reported the ring
missing, Ferrizz had gone to an antique mall in Santa Maria,
California, to sell the wedding ring. He sold the ring to Judy
Jildera, a jeweler, for $300.00, telling her that he had found
the ring inside a wall of a demolished home.
Sheriff’s officers subsequently called Ferrizz and asked
him about the ring. He stated that he had found a diamond
ring outside of Cirivello’s master bedroom window. After the
call, Ferrizz came to Cirivello’s house and told Cirivello that
he did not have the ring but would try to find it. Thereafter
he made several attempts to repurchase the ring from Jildera,
who was reluctant to sell it back to Ferrizz.1 Ferrizz finally
arranged a meeting with Jildera to repurchase the ring from
her. Her husband notified the police of the meeting, however.
At the meeting, Jildera told Ferrizz that they must wait for the
police to arrive, to which Ferrizz responded “oh no, [t]his is
my third strike.”
II
The jury found Ferrizz guilty of four crimes: (1) burglary,
CAL. PENAL CODE § 459; (2) grand theft of personal property,
CAL. PENAL CODE § 487; (3) grand theft of lost property, CAL.
PENAL CODE § 485; and (4) receiving stolen property, CAL.
PENAL CODE § 496(a). The trial judge granted Ferrizz’s motion
for a new trial on count four, receiving stolen property,2 but
denied a new trial on the other counts.3
1The ring appraised at a retail value of $2,890.00.
2The State indicated an intent not to retry Ferrizz for receiving stolen
property, and that count was dismissed.
3Ferrizz represented himself at trial.
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The trial judge sentenced Ferrizz to thirty-five years to life
on count one (burglary).4 The trial judge consolidated counts
two (grand theft), and three (grand theft of lost property) into
a single grand theft conviction, because he concluded that,
with regard to those counts, “only one crime [was] commit-
ted.” On the consolidated counts, the judge sentenced Ferrizz
to twenty-five years to life, and then stayed the imposition of
that portion of the sentence. The greater sentence on count
one remained in force.
The California Court of Appeal affirmed in an unpublished
opinion. Ferrizz contended that the verdicts could not stand
because they were factually inconsistent: the conviction on
count three indicated that the jury was convinced that Ferrizz
had found the ring and improperly kept it, while the convic-
tion on count one indicated that the jury thought he had bur-
glarized Cirivello’s home to take the ring. The Court of
Appeal held that inconsistent verdicts were allowed to stand,
and affirmed the convictions and sentence. The Supreme
Court of California denied review.
Ferrizz filed a petition for habeas corpus. The district court
denied relief, but granted Ferrizz a certificate of appealability
on the question whether “the state courts acted contrary to
Federal law, as determined by the Supreme Court, or unrea-
sonably applied the law, in denying Ferrizz’s claim that his
due process rights were violated because his guilty verdicts
were logically inconsistent with one another.”
III
We review de novo the district court’s denial of a habeas
petition. Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir.
2003). The Antiterrorism and Effective Death Penalty Act
(“AEDPA”) limits review, however. See id. We may not grant
4This sentence was imposed under California’s “three strikes” law. See
CAL. PENAL CODE § 667(e)(2)(A).
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a habeas petition unless the state court’s decision is “contrary
to, or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. § 2254(d)(1).
IV
[1] The Supreme Court has made it clear that inconsistent
verdicts may stand when one of those verdicts is a conviction
and the other an acquittal. See United States v. Powell, 469
U.S. 57, 65 (1984); Dunn v. United States, 284 U.S. 390, 393
(1932). The underlying rationale of these cases is that the
acquittal on one count may be explained as an exercise of len-
ity by the jury that is not necessarily grounded in its view of
the evidence. See Dunn, 284 U.S. at 393. In adhering to this
rule in Powell, however, the Court noted:
Nothing in this opinion is intended to decide the
proper resolution of a situation where a defendant is
convicted of two crimes, where a guilty verdict on
one count logically excludes a finding of guilt on the
other.
Powell, 469 U.S. at 69 n.8. The government contends that this
footnote establishes that the question of the effect of inconsis-
tent guilty verdicts is an open one in the Supreme Court, and
therefore there can be no “clearly established Federal law, as
determined by the Supreme Court” on this issue to permit
habeas relief under § 2254(d)(1).5
5It is, of course, not sufficient for purposes of § 2254(d)(1) that our
court has spoken if the Supreme Court has not. In Masoner v. Thurman,
996 F.2d 1003, 1005 (9th Cir. 1993), we stated that, where a jury convicts
of mutually exclusive offenses, the convictions are subject to reversal. We
did not reverse in Masoner, however, because we concluded that there was
no logical inconsistency between convictions for gross vehicular man-
slaughter while intoxicated and murder. Id. at 1005-06.
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[2] The Powell footnote, however, does not state that the
question is an open one; it merely states that nothing in the
Powell opinion decides the issue. The most that can be said
of the footnote is that it makes clear that Ferrizz cannot rely
on Powell as the Supreme Court precedent that the state
court’s decision contradicted or unreasonably applied. Fer-
rizz’s habeas petition must be supported by some other
Supreme Court precedent if it is to succeed.
Ferrizz contends that the state court’s decision is contrary
to Apprendi v. New Jersey, 530 U.S. 466 (2000), and Duncan
v. Louisiana, 391 U.S. 145 (1968). He concedes that neither
case directly involves inconsistent guilty verdicts, but he
asserts that each supports a requirement of rationality in the
jury verdicts. Apprendi requires a jury to determine facts
(other than the fact of a prior conviction) that increase a sen-
tence beyond an otherwise-applicable statutory maximum.
530 U.S. at 490. Duncan guarantees a jury trial for crimes
punishable by terms of imprisonment greater than that
accorded petty offenses. 391 U.S. at 161-62. Ferrizz draws
from these cases a due process requirement of a rational jury
determination, which is violated by inconsistent guilty ver-
dicts.
There is often a question whether a particular application of
Supreme Court precedent sought by a habeas petitioner is
such an extension of that precedent that the new application
cannot be regarded as clearly established federal law. “[T]he
difference between applying a rule and extending it is not
always clear.” Yarborough v. Alvarado, 541 U.S. 652, 666
(2004). We do know that “it is not necessary for the petitioner
to cite factually identical Supreme Court precedent.” Matteo
v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3d Cir.
1999). The difficulty lies in establishing the proper level of
generality at which to assess the rule established by the
Supreme Court decision in issue, and many courts have wres-
tled with that question. See, e.g., id.; Quinn v. Haynes, 234
F.3d 837, 844-45 (4th Cir. 2000). “If [the Supreme] Court has
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not broken sufficient legal ground to establish an asked-for
constitutional principle, the lower federal courts cannot them-
selves establish such a principle with clarity sufficient to sat-
isfy the AEDPA bar.” Williams v. Taylor, 529 U.S. 362, 381
(2000).
We need not decide, however, whether the rationality
requirement for jury verdicts that Ferrizz would extract from
Apprendi and Duncan is too great an extension of the rule of
those decisions to pass muster under § 2254(d).6 Even if we
assume, without deciding, that Apprendi and Duncan clearly
established a due process rule of rationality that could be
applied to inconsistent guilty verdicts, we conclude that the
verdicts in this case did not violate any rationality require-
ment.
[3] On the present record, we cannot say that a rational jury
could not arrive at both of the guilty verdicts in this case. As
the state trial judge recognized, there is no inevitable logical
inconsistency between the two verdicts. The jury could have
found that Ferrizz burglarized the house but found nothing of
value, and then on his way out found the ring on the ground
outside the window and kept it. Under our circuit’s precedent,
that possibility would foreclose relief. See Masoner, 996 F.2d
at 1005 (holding that a due process challenge to allegedly
inconsistent guilty verdicts “will not be considered if the
defendant cannot demonstrate that the challenged verdicts are
necessarily logically inconsistent.”).
The state trial judge also recognized, however, that, as the
case was framed for the jury, there was a likely factual incon-
6For the same reasons, we need not decide whether the rule that Ferrizz
derives from Apprendi and Duncan would constitute a new rule that may
not be retroactively applied to criminal judgments that have become final.
See Teague v. Lane, 489 U.S. 288, 301 (1989). Parallel considerations
govern whether a rule is “new” under Teague and whether it is an exten-
sion beyond established federal law under § 2254(d). See Williams, 529
U.S. at 379-81.
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sistency and the State’s attorney candidly admitted to such an
inconsistency in oral argument here. We conclude, however,
that any such likelihood did not render either verdict irratio-
nal.
Two possibilities were presented to the jury: (1) Ferrizz tes-
tified that he found the ring on the ground outside the house;
and (2) the prosecution introduced evidence of burglary in the
form of footprints, palmprints, an unlocked window, and the
ring missing from a purse on the wall. Ferrizz argues that, if
the jurors did not simply contradict themselves, what must
have happened is that some jurors believed that he found the
jewelry on the ground and others believed that he took them
in the burglary. In that event, he asserts, neither verdict com-
manded the necessary majority.
The possibility that the verdicts were not unanimous is vir-
tually zero, however, in light of the progress of jury delibera-
tions in this case. After some deliberation, the jury reported
to the trial judge that it had reached a unanimous verdict on
all the charges except burglary. The judge inquired how the
jury was split on burglary, and directed the foreman not to
disclose what verdict the split favored or the nature of the ver-
dicts already reached. The foreman answered that the split
was eleven to one. The judge sent the jury back to deliberate
further and they returned with a verdict of guilty on all of the
counts. In light of these facts, it is inconceivable that all the
verdicts were not reached unanimously.
[4] The two verdicts also were not irrational when viewed
together. A perfectly possible and rational scenario is the fol-
lowing. The jury initially agreed that Ferrizz (at the least)
found the jewelry and intended permanently to deprive the
owner of it.7 Nothing in the instructions required the jury to
7The jury was instructed on the following elements of theft of lost prop-
erty:
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fix the location where he found the ring; he could have found
it inside or outside of the house. There was sufficient evi-
dence to support either possibility. As deliberations went on,
the jury eventually was able to agree that Ferrizz had burglar-
ized the house. Nothing in the instructions required the jury,
in finding a burglary, to reject the possibility that Ferrizz
“found” the jewelry in the course of his burglary.8 See
Masoner, 996 F.2d at 1006 (rejecting challenge of inconsis-
tency of guilty verdicts when instructions did not require con-
viction of one offense to negate an element of the other).
[5] In light of the evidence, the jury instructions, and the
sequence in which the verdicts were reached, we conclude
that the jury did not act irrationally in proceeding as it did.
Rational jurors could have agreed first, that at the least Ferrizz
had found the ring somewhere and wrongfully intended to
keep it, and then could have further found that he did, in fact,
commit a burglary to get the ring. There is neither an inevita-
ble logical inconsistency between the two guilty verdicts, nor
is there a necessary factual inconsistency that renders the ver-
One, a person finds property whose value exceeds $400; two,
under circumstances which give him knowledge or means of
inquiry as to the true owner; three, the person appropriates the
property to his own use, or to the use of another person not enti-
tled thereto; four, without making reasonable and just efforts to
find the owner and restore the property; five, when the person
appropriated the property to his own use or the use of another,
not entitled thereto, he had the specific intent to deprive the
owner permanently of that property.
8The jury was instructed on the following elements of burglary:
In order to prove this crime, each of the following elements must
be proved: a person entering a building; and at the time of the
entry, that person had the specific intent to steal and take away
someone else’s property, and intended to deprive the owner per-
manently of that property.
The jury was also instructed that “[i]t does not matter whether the intent
with which the entry was made was thereafter carried out.”
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dicts irrational.9 This is not a case, for example, in which a
defendant was convicted of robbing two banks hundreds of
miles apart at the same time.
[6] Because the jury could rationally arrive at both guilty
verdicts, logically and factually, there was no violation of any
rule of rational consistency between guilty verdicts that we
assume, without deciding, can be implied from Apprendi or
Duncan. Accordingly, the California Court of Appeal’s deci-
sion upholding both verdicts was neither contrary to, nor an
unreasonable application of, clearly established federal law as
determined by the Supreme Court. See 28 U.S.C. § 2254(d).
The judgment of the district court dismissing the petition for
a writ of habeas corpus is
AFFIRMED.
9We deal here only with the question whether the verdicts were irratio-
nal, not with sentencing consequences. The state trial judge consolidated
the crimes of theft of loss property and grand theft into one crime of grand
theft for sentencing purposes. That consolidation avoided any problem that
might arise from a possible violation of legislative intent not to punish
burglars for “finding” the property that they stole. Cf. United States v.
Gaddis, 424 U.S. 544, 549-50 & n.15 (1976) (holding that a person cannot
be federally convicted and separately sentenced for robbing a bank and
receiving proceeds of that robbery because Congress did not intend to
“pyramid penalties” for lesser offenses following the robbery) (quoting
Heflin v. United States, 358 U.S. 415, 419 (1959)).
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