United States District Court, C.D. California, Eastern Division
JOSHUA J. WILLIS, Petitioner,
JOHN N. KATAVICH, Warden, Respondent
Joshua J Willis, Petitioner, Pro se, Wasco, CA.
For John N Katavich, Respondent: Kevin R Vienna, LEAD ATTORNEY, CAAG - Office of Attorney General, San Diego, CA.
AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
DOUGLAS F. McCORMICK, United States Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Beverly Reid O'Connell, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
A. Procedural History
On October 19, 2012, a Riverside County Superior Court jury convicted Petitioner Joshua Willis (" Petitioner") of three counts of second degree burglary and one count of actively participating in a criminal street gang. Clerk's Transcript (" CT") 135-37, 232-38. The jury also found true the allegation that Petitioner committed the burglaries for the benefit of, at the direction of, or in association with a criminal street gang. Id. The trial court found true the allegation that Petitioner had a prior strike conviction and had served three prior prison terms. CT 218. Petitioner was sentenced to a total term of 16 years and eight months to life in state prison. CT 241-42; 2 Reporter's Transcript (" RT") 307-13.
Petitioner appealed his conviction to the California Court of Appeal, raising the same claims he now raises in his federal petition. Respondent's Notice of Lodging, Lodged Document (" LD") 3. On December 20, 2013, the state appellate court affirmed Petitioner's conviction in a reasoned opinion. LD 7. On April 9, 2014, Petitioner's petition for review was summarily denied by the California Supreme Court. LD 9.
On May 28, 2014, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody in this Court. Dkt. 1 (" Petition"). The Petition raises two grounds for relief: (1) the evidence was insufficient to support his conviction of active participation in a criminal street gang; and (2) the evidence was insufficient to support the jury's true findings that he committed the burglaries for the benefit of a criminal street gang. Petition at 4-5. On July 17, 2014, Respondent filed an answer. Dkt. 5 (" Answer"). Petitioner filed a traverse on September 22, 2014. Dkt. 9 (" Traverse").
B. Summary of the Evidence Presented at Trial
The underlying facts are taken from the unpublished opinion of the California Court of Appeal. See LD 7 at 3-11. Unless rebutted by clear and convincing evidence, these facts are presumed correct. Tilcock v. Budge, 538 F.3d 1138, 1141 (9th Cir. 2008); 28 U.S.C. § 2254 (e)(1). Because Petitioner has raised a claim of insufficiency of the evidence, the Court has independently reviewed the record. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997).
A. The Underlying Crimes
Over a week and a half in May 2012, Petitioner, along with his cousin Rohann Scott and his brother Donald Ray Willis, stole video game systems and video games worth almost $3, 000 from Target stores in San Dimas, City of Industry, and Eastvale. A Target employee called the Riverside County Sheriff's Department when the three men were seen together entering the Eastvale store a second time. Sheriff's deputies responded and arrested the three men. The next day, officers searched one of the suspect's impounded vehicles and discovered backpacks filled with video games.
B. Gang Expert Testimony
An officer assigned to the San Bernardino Police Department's Gang Investigation Unit testified that Petitioner was an active member of the Pimp Player Hustler Gangster Crips gang, a homegrown gang located on the eastside of the City of San Bernardino. The officer became acquainted with the gang when he was a patrol officer, and he came into contact with 20 to 25 of its members during arrests or consensual encounters. The officer testified the gang goes by the names PPHG or PPHGC and uses the color blue and the symbols " P" or " 4." The gang had between 80 and 85 documented members at the time of Petitioner's arrest and had as its primary activity the commission of crimes listed in section 186.22, subdivision (e). The officer testified to three predicate crimes committed by admitted PPHG members Anthony Gilmore, Edward Gilmore, and Sidikiba Greenwood, Jr., in order to establish that the PPHG was engaged in a course of criminal activity.FN Based on those and other crimes of which he was familiar, the officer opined that the PPHG was engaged in a pattern of criminal conduct for purposes of section 186.22.
FN Petitioner does not challenge the sufficiency of the evidence to establish the existence of ...