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Willis v. Katavich

United States District Court, C.D. California, Eastern Division

November 13, 2014

JOSHUA J. WILLIS, Petitioner,
v.
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.

REPORT 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.

I.

BACKGROUND

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.[1] 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.[2] 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 these predicate crimes.
The officer testified that he became familiar with Petitioner and his two confederates in the burglaries by reviewing police reports, gang field investigation cards, and photographs of Petitioner, and by reviewing the security footage of the Target store burglaries. According to the officer, the PPHG members were " real close" and have many family members in the gang. The officer testified that one factor behind his opinion that Petitioner was an active member of the PPHG is that Petitioner's confederates were close family members and active members of the gang. The officer based his opinion about Donald Willis's active gang membership on his review of gang field investigation cards and based on three of Willis's tattoos: (1) " PPHGC, " (2) " G" and " C, " which stands for " Gangster Crip, " and (3) " Sticc Up Kid, " which the officer testified was significant because Crips gangs never spell words with " ck" because it stands for " Crip Killer." The officer opined that Rohann Scott was also an active member of the PPHGC based on the " PPHGC" tattoo on his back and the letters " ES" tattooed on his right shoulder, which is short for " Eastside" and refers to the Eastside of San Bernardino where the gang is located.
Moreover, the officer testified that when Petitioner was booked into the county jail, he identified himself as a member of the PPHG during his classification interview. The officer also reviewed gang field investigation cards and spoke to officers who had made prior contacts with Petitioner in 2003, 2004, 2009, 2010, and 2011, during which Petitioner admitted he was a gang member. The officer testified the most important fact for him, from the standpoint of a gang investigator, was Petitioner's tattoos. Petitioner had a tattoo of the letters " PPHG" and of his gang moniker " JMac" on his right forearm. The tattoos were important, according to the officer, because they showed Petitioner's loyalty to the gang. The officer testified that, in order to get a PPHG tattoo, a member had to earn it by being " jumped" into the gang, by putting in work for the gang by committing a crime as initiation, or by being grandfathered or " walk[ed] in" to the gang based on a familial connection with the gang. According to the officer, if a gang member wished to get out of the gang, but could not afford laser removal, he would have a black line tattooed over the gang's tattoo.
The officer testified that part of gang culture is putting in work or committing a crime for the gang, most often by selling illegal narcotics, committing assaults against members of rival gangs, or committing residential or commercial burglaries. The proceeds from the sale of illegal narcotics and burglaries, according to the officer, are used by the gang to purchase guns and to purchase more narcotics for sale, or to purchase status symbols such as expensive clothing and tennis shoes that are worn for recruitment purposes. The officer testified that the fact Petitioner stole from three Target stores in a week-and-a-half period, accompanied by two active members of PPHG, demonstrated he was an active member of the gang.
Another factor on which the officer relied in forming his opinion about Petitioner was Petitioner's presence at the March 2012 funeral of Anthony Gilmore, who was killed by police during a traffic stop. According to the officer, inactive members of a gang or members who were not in good standing, were not permitted to attend the funeral of an active member, so Petitioner's presence at the funeral " shows me that he's still active because he's allowed to come to that gang funeral." The officer described to the jury photographs taken at the funeral depicting Petitioner with his confederates Donald Willis and Rohann Scott, and with " Spicy Low, " one of the founding members of the PPHG. Moreover, the officer testified that the way Anthony Gilmore died at the hands of the police made the funeral and Petitioner's presence there especially important.
Finally, the officer testified he based his opinion that Petitioner was an active member of the PPHG gang on the crimes Petitioner had committed. In October 2004, Petitioner was convicted of being a felon in possession of a firearm, which is a primary activity of the gang. Moreover, the officer opined the Target store burglaries constituted Petitioner " putting in work" for the gang, which would help elevate his status in the gang because the proceeds obtained by selling the stolen merchandise could be used by the gang to buy guns to commit other crimes or to buy illegal narcotics for resale.
On cross-examination, the officer testified that, during a January 2011 encounter with another officer, Petitioner said he wanted to get out of the gang and have no further contact with gangs. With respect to Petitioner's self-identification as a member of a gang during his jail classification interview, the officer testified that a former gang member, who no longer associates with a gang, would likely ask to be placed in protective custody to avoid being assaulted by current members of his old gang and rivals alike.
On redirect, the officer testified the Target store burglaries were not necessarily committed for the benefit of the PPHG, but were committed in association with the PPHG members, so it did not matter if the proceeds from the stolen merchandise were actually used to buy guns or drugs for the gang. The officer testified that if Petitioner had in fact left the gang, the repercussions for showing up at the funeral of Anthony Gilmore would be that he would be assaulted as soon as he got there. The gang is like " a brotherhood, " according to the officer, so if Petitioner walked out of the gang, he would not have been a member in good standing and would not have been welcome at any of the gang's events, especially at the funeral. That Petitioner continued to spend time with his brother and cousin outside of family settings and committed the burglaries with them showed Petitioner was still an active member of the gang. The officer opined that jail classification interviews are reliable in determining if someone is a member of a gang because if a gang member is housed in the general population, instead of with members of his gang, he may face some serious repercussions.
Finally, on further cross-examination, the officer testified that one way to leave a gang is to simply move away from the gang's territory. Although at some point Petitioner moved from San Bernardino to Victorville, the officer testified that members of the PPHG scattered from San Bernardino to neighboring cities and into Los Angeles County when the accidental murder of an 11--year old girl by a PPHG member led to increased police suppression of the gang.

C. Defense Evidence

Roeshella Rockmore, Petitioner's first cousin, testified that she and Petitioner were close, and that she lived with Petitioner from 2006 to 2008 and again from 2010 until just before his arrest. Although she was aware of Petitioner's gang tattoo, Rockmore testified that she never saw Petitioner dress like a " gang banger, " hang out with gang members, " see him doing gang signs, " or do anything else to indicate he was a gang member. Rockmore testified that Petitioner spent time with his family, including with Rohann Scott and Donald Willis, although she denied the latter two were gang members. Rockmore testified that no gang members ever attended the family gatherings that she and Petitioner attended. On cross-examination, Rockmore testified she did not believe that Rohann Scott and Donald Willis were gang members and that she never saw them or Petitioner engage in gang activity.
Tonya Corbett, another of Petitioner's first cousins, testified that she and Petitioner have been close all his life, and she helped raise him. Corbett testified that Petitioner got a gang tattoo, and that he was a gang member when he was young. Corbett testified that in recent years, she would see Petitioner as much as four times a week but never saw him in the company of gang members. Corbett testified that she saw Petitioner in the company of Rohann Scott and Donald Willis, but testified that to her knowledge those two were not active gang members. Corbett saw Petitioner wear blue clothing, but she never saw Petitioner flash gang signs. According to Corbett, Petitioner mostly spent time with family members. Corbett testified that she never saw Petitioner with drugs, and that the only time she saw Petitioner with a gun was when he was a teenager. On cross-examination, Corbett testified she did not believe Petitioner was an active gang member because he was not around gangs. Corbett's opinion would not be different even if she believed that on several occasions Petitioner admitted to police that he was a gang member.
Petitioner testified that at the time of his arrest, he lived in Hesperia with the mother of his children. He affiliated with the gang when he was about eight years old, joined the gang when he was about 13 years old, and got his gang tattoo when he was 14 or 15 years old. Petitioner testified he was never " jumped" into the gang, but interacted with the gang's members and eventually joined through relatives in the gang. He joined the gang to fit in, and he drank beer and " smoked weed" with fellow members.
In 2004 or 2005, Petitioner decided to leave the gang life. Although Petitioner had been in trouble with the law since his decision to leave the gang, he testified it had nothing to do with gangs. When Petitioner decided to leave the gang, he moved to Victorville with his aunt to get away from the gang. Petitioner testified he never got " jumped out" of the gang or made a formal declaration that he was quitting the gang--he simply moved to try and distance himself from the gang. He testified that he did not hang around gang members after moving to Victorville. Petitioner disputed the gang expert's testimony that gang members could not simply walk out of a gang or move away.
Petitioner testified he attended the funeral of Anthony Gilmore to pay his respects, and that he wore black instead of blue because he was not a gang member anymore. Petitioner disputed the gang expert's testimony that Petitioner would have been harmed and not allowed to attend the funeral if he had left the gang. Petitioner testified it would not have made a difference, and he would have been allowed to attend the funeral even if he formally left the gang and got " jumped out." Petitioner admitted that on several occasions during encounters with the police, he told the officers he was in a gang, but he also testified that he told one officer that he wanted to leave the gang. With respect to his jail classification interview, Petitioner testified that he told the deputies he was involved with gangs and, for his safety, he told them he used to be a member of the PPHG. Petitioner did not ask to be placed in protective custody, instead of being housed with members of his former gang, because he did not want to be housed with child molesters, rapists, or snitches. He testified that if he was seen wearing a blue wristband, which signifies protective custody, word would get out that he might be a snitch.
Petitioner admitted to committing the Target store burglaries but denied that they had anything to do with a gang. Instead, Petitioner testified he planned on using the proceeds from the stolen property to buy diapers, baby clothing, and to pay rent. Finally, Petitioner testified he did not consider himself a member of the PPHG.
On cross-examination, Petitioner testified that gang dropouts in jail were also housed in protective custody but said many who say they were gang dropouts were merely trying to avoid paying a debt or using that as an excuse to be housed away from other gang members. Petitioner did not ask to be housed in protective custody because, unlike White and Hispanic gangs, which were less tolerant of dropouts, Black gangs were " a little bit more lenient." He denied that he self-admitted to being a gang member during his jail classification interview. " They asked me [if I was] affiliated, and I told them, yeah." Petitioner testified he wanted to be housed with the PPHG, not because he necessarily wanted to be with Crips, but because he feared that his tattoos and former affiliation might cause him to be stabbed or get into fights if he were housed with Bloods.
Petitioner also testified on cross-examination that he moved from San Bernardino in 2005, but denied that it had anything to do with the murder of the 11--year old girl that year. He moved to get away from the gang. Finally, Petitioner testified he was aware that the PPHG was engaged in a pattern of criminal activity, but he denied that he participated in that pattern of criminal activity and denied that he ever possessed a firearm as a member of the gang.

LD 7 at 3-11.

II.

STANDARD OF REVIEW

Petitioner's claim is subject to the provisions of the Antiterrorism and Effective Death Penalty Act (" AEDPA"). Overall, AEDPA presents " a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, __ U.S. __, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (citations and quotations omitted). Under AEDPA, federal courts may grant habeas relief to a state prisoner " with respect to any claim that was adjudicated on the merits in State court proceedings" only if that adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Although a particular state court decision may be both " contrary to" and " an unreasonable application of" controlling Supreme Court law, the two phrases have distinct meanings. Williams v. Taylor, 529 U.S. 362, 391, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision is " contrary to" clearly established federal law if it either applies a rule that contradicts governing Supreme Court law or reaches a result that differs from the result the Supreme Court reached on " materially indistinguishable" facts. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). A state court need not cite or even be aware of the controlling Supreme Court cases, " so long as neither the reasoning nor the result of the state-court decision contradicts them." Id.

State court decisions that are not " contrary to" Supreme Court law may be set aside on federal habeas review only " if they are not merely erroneous, but 'an unreasonable application' of clearly established federal law, or based on 'an unreasonable determination of the facts' (emphasis added)." Id. at 11. A state court decision that correctly identifies the governing legal rule may be rejected if it unreasonably applies the rule to the facts of a particular case. Williams, 529 U.S. at 407-08. To obtain federal habeas relief for such an " unreasonable application, " however, a petitioner must show that the state court's application of Supreme Court law was " objectively unreasonable." Id. at 409. To warrant habeas relief, a state court's ruling must be " so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011). Put another way, a state court determination that a claim lacks merit " precludes federal habeas relief so long as fairminded jurists could disagree" on the correctness of that ruling. Id. at 786. Federal habeas corpus review therefore serves as " a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Id. (internal quotation omitted).

Here, Petitioner raised his claims on direct appeal, and those claims were denied by the California Court of Appeal in a reasoned decision. See LD 7. These claims were then presented in Petitioner's petition for review, which the California Supreme Court summarily denied. LD 9. Thus, for purposes of applying the AEDPA standard of review, the California Court of Appeal decision on direct appeal constitutes the relevant state court adjudication on the merits for this claim. See Johnson v. Williams, __ U.S. __, 133 S.Ct. 1088, 1094 n.1, 185 L.Ed.2d 105 (2013) (noting that federal habeas court " look[s] through" summary denial of claim to last reasoned decision from the state courts to address the claim).

III.

DISCUSSION

A. Petitioner's Claim That the Evidence Was Insufficient to Support His Conviction of Active Participation in a Gang Does Not Warrant Habeas Relief

In Ground One, Petitioner contends that the evidence was insufficient to support his conviction of active participation in a criminal street gang. Petition at 5. More specifically, Petitioner argues that the prosecution did not introduce sufficient evidence that he was an active gang member at the time of the Target burglaries because (1) the gang expert's testimony was not based on personal knowledge and was therefore unreliable and (2) he introduced substantial evidence that that he was no longer an active gang member at the time of the burglaries. Id.

1. Decision of the California Court of Appeal

The state appellate court rejected Petitioner's claim as follows:

Our review of the evidence is governed by the well-settled substantial evidence test. " [W]e review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar ( 2010) 51 Cal.4th 47, 60, 119 Cal.Rptr.3d 415, 244 P.3d 1062 (Albillar).) The same analysis applies when the People rely mainly on circumstantial evidence. (People v. Jones ( 2013) 57 Cal.4th 899, 960-961, 161 Cal.Rptr.3d 295, 306 P.3d 1136.)
" The elements of the gang participation offense in section 186.22 [, subdivision] (a) are: First, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang. [Citation.] A person who is not a member of a gang, but who actively participates in the gang, can be guilty of violating section 186.22 [, subdivision] (a). (§ 186.22, subd. (i).)" ( People v. Rodriguez (2012) 55 Cal.4th 1125, 1130, 150 Cal.Rptr.3d 533, 290 P.3d 1143 (Rodriguez).) " Mere active and knowing participation in a criminal street gang is not a crime. Applying the third element of section 186.22[, subdivision] (a), a defendant may be convicted of the crime of gang participation only if he also willfully does an act that 'promotes, furthers, or assists in any felonious criminal conduct by members of that gang.' (§ 186.22[, subd.] (a).)" (Id. at pp. 1130-1131.)
. . .
The gang expert's testimony constituted substantial evidence that Petitioner was an active participant in the PPHG gang in May 2012. The expert based his opinion in part on his review of field investigation cards, which stated that on several occasions Petitioner and his two confederates admitted to police that they were members of the gang, and from his review of photographs showing the three men's respective tattoos. In fact, the officer testified that Petitioner's " PPHG" tattoo was the most significant fact for him because it signified that Petitioner was loyal to the gang and had put in the work necessary to stay a member of the gang in good standing. Moreover, the officer testified that often former gang members either have their gang tattoos removed or have a black line tattooed over them, and the clear implication was that Petitioner's tattoos had not been removed or covered up. Besides Petitioner's admissions to gang membership made to officers in the field, the expert testified that when Petitioner was booked into the county jail in the current case, he identified himself as a member of the PPHG and testified to the significance of that identification.
The expert also based his opinion on Petitioner's association with other admitted members of the PPHG. He testified the PPHG had numerous members who were related by blood, and that its members were " real close" to each other. In his opinion, that Petitioner spent time with and participated in the three burglaries with his brother and first cousin, both of whom the expert testified were documented members of the PPHG, helped establish that Petitioner was also an active member of the gang. Moreover, the officer testified that in March 2012, Petitioner attended the funeral of a member of the gang who was killed by police and was photographed with other members of the PPHG, including his brother, his cousin, and " Spicy Low, " a founding member of the gang. The expert testified that only active members, who were in good standing, would have been permitted to attend such a funeral.
Finally, the expert based his opinion on the types of crimes Petitioner committed. He testified that in October 2004, Petitioner was convicted of being a felon in possession of a firearm, which the expert identified as a " primary activity" of the gang. Likewise, the expert testified that the three Target store burglaries constituted Petitioner " putting in work" for the gang, which would help elevate Petitioner's status in the gang because the ill-gotten gains might be used to purchase guns or illegal narcotics for resale.
Petitioner contends the evidence we just recited is insufficient to sustain his conviction because the expert's testimony was unreliable and because Petitioner presented contrary evidence to the effect that he was no longer an active member of the gang when he stole from the Target stores, and that he stole the video games to pay for family necessities and not to benefit the gang. Neither argument persuades us.

Reliability of Gang Expert's Testimony
With respect to the gang expert's opinion that Petitioner and his confederates were active gang members, Petitioner contends that testimony is unreliable because the officer " had no personal contact" with either of them and he only gleaned his information about them from police reports, field investigation cards, and photographs prepared by other officers.FN But personal knowledge is not required for introduction of expert witness testimony. (See, e.g., People v. Vang ( 2011) 52 Cal.4th 1038, 1048, 132 Cal.Rptr.3d 373, 262 P.3d 581 [although gang expert witness was not at the scene of the crime and " had no personal knowledge whether any of the defendants assaulted [the victim] and, if so, how or why, " the " jury was as competent as the expert to weigh the evidence and determine what the facts were, including whether the defendants committed the assault" ].
FN In his opening brief, Petitioner also appears to contend the expert witness's testimony is unreliable because he first became acquainted with the PPHG in 2012. To the contrary, the officer testified he first became acquainted with the PPHG when he was a patrol officer, some years before he became a gang investigator.
" Evidence Code section 801 limits expert opinion testimony to an opinion that is '[b]ased on matter ... perceived by or personally known to the witness or made known to [the witness] at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [the expert] testimony relates....' (Id., at subd. (b).)" ( People v. Gardeley (1996) 14 Cal.4th 605, 617, 59 Cal.Rptr.2d 356, 927 P.2d 713, italics added.) Petitioner does not, and could not, dispute that the sources from which the expert gleaned his information were the type that a gang expert may reasonably rely upon. (People v. Williams ( 2009) 170 Cal.App.4th 587, 622, 88 Cal.Rptr.3d 401 (Williams) [Fourth Dist., Div. Two] [" Gang experts may rely on their own investigations and information obtained from other law enforcement officers, including information from police reports, in forming their opinions" ].)

Contrary Defense Evidence

Turning to Petitioner's contrary evidence to rebut each of the bases of the expert's opinion, that is an argument about the weight to be given to the expert's testimony and about which witness or witnesses should be believed, matters which are soundly left to the trier of fact. ( Albillar, supra, 51 Cal.4th at p. 60.) For instance, Petitioner contends the fact that he self-identified with the PPHG during his jail classification interview is not reliable evidence that he was an active member of the gang at the time because, from his own testimony, a reasonable jury could conclude Petitioner choose to be housed with his old gang rather than in the general population or in protective custody for his personal safety. This argument clearly goes to the weight to be given by the jury to the expert's and to Petitioner's testimony. ( Williams, supra, 170 Cal.App.4th at p. 623.)
We noted in Williams that " 'the sufficiency of the evidence showing active participation is not altered by the existence of other evidence offered by defendant to show he was not an active participant in the gang. Resolution of conflicting evidence and credibility issues was for the jury to decide. [Citation.] It is clear from the verdict finding defendant guilty of street terrorism that the jury believed he was actively participating in the gang. Because substantial evidence supports this determination, " 'that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.'" '" ( Williams, supra, 170 Cal.App.4th at p. 626, quoting People v. Martinez ( 2008) 158 Cal.App.4th 1324, 1331, 70 Cal.Rptr.3d 680.)

LD 7 at 12-17.

2. Legal Standard

The Due Process Clause of the Fourteenth Amendment protects a criminal defendant from conviction " except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). A federal habeas petitioner " faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H., 408 F.3d at 1274. On direct review of a sufficiency of the evidence claim, a state court must determine whether " any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Juan H., 408 F.3d at 1274. On habeas review, a federal court must apply the Jackson standard " with an additional layer of deference." Juan H., 408 F.3d at 1274. Federal habeas relief is available only if the state court determination that the evidence was sufficient to support a conviction was an " objectively unreasonable" application of Jackson. Id. at 1275 n.13; Coleman v. Johnson, __ U.S. __, 132 S.Ct. 2060, 2062, 182 L.Ed.2d 978 (2012) (per curiam). The Jackson standard " must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Chein v. Shumsky, 373 F.3d 978, 983-84 (9th Cir. 2004) (en banc) (citation omitted); accord Coleman, 132 S.Ct. at 2064. In performing a Jackson analysis, a jury's credibility determinations are " entitled to near-total deference." Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004). When the factual record supports conflicting inferences, the federal court must presume that the trier of fact resolved any such conflicts in favor of the prosecution, and the court must defer to that resolution. Jackson, 443 U.S. at 326.

3. Analysis

Applying these standards, the evidence was sufficient to support Petitioner's conviction of active participation in a criminal street gang under California Penal Code § 186.22(a), which applies to " [a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang."

Here, as noted by the California Court of Appeal, there was sufficient evidence of all three elements of active participation in a criminal street gang based upon the gang expert's testimony. LD 7 at 13-14. First, the gang expert, Officer Byron Clark, who was assigned to the San Bernardino Police Department's Gang Investigation Unit, testified that Petitioner was an " active" member of PPHG at the time of the Target burglaries in May 2012 based upon the following facts: Petitioner admitted membership in PPHG during prior contacts with police officers, each of which was recorded on a field identification card; Petitioner identified himself as a PPHG member when he was booked into the Riverside County Jail for the underlying crimes; Petitioner had his gang moniker " JMac" and the letters " PPHG" tattooed on his right forearm; Petitioner was present at the March 2012 funeral of PPHG member Anthony Gilmore, which he would not have been permitted to attend if he had left the gang; and Petitioner committed the Target burglaries with fellow PPHG members. 1 RT 110-13, 116-20, 123. Second, there was sufficient evidence of Petitioner's " knowledge that [PPHG] members engage in or have engaged in a pattern of criminal gang activity." In fact, Petitioner testified that he was aware that PPHG was engaged in a pattern of criminal activity, although he denied that he himself participated in any of that activity. 2 RT 214-15. Third, there was sufficient evidence Petitioner " willfully promote[d], further[ed], or assist[ed]" in felonious criminal conduct by PPHG members because he committed the Target burglaries with fellow PPHG members Rohann Scott and Donald Willis. Petitioner admitted that he committed the burglaries with Scott and Willis, although he claimed that he did not commit the crimes for the benefit of PPHG. 2 RT 207.

The fact that Petitioner presented contrary evidence to show that he was not an active member of the PPHG gang at the time of the Target burglaries does not compel a different result. As noted by the state appellate court, resolution of conflicting evidence and determinations of witness credibility are solely for the jury to decide. LD 7 at 16-17. It is clear from the jury's guilty verdict on this count that it disbelieved the testimony of Petitioner and his two cousins that he was no longer an active PPHG member at the time of the burglaries. On habeas review of sufficiency of the evidence claims, the Court must presume that the jury resolved conflicting evidence in favor of the prosecution, and must also defer to the jury's credibility determinations. See Bruce, 376 F.3d at 957.

In addition, Petitioner argues that the gang expert's testimony was unreliable because the expert did not have any personal contact with Petitioner but instead improperly relied upon materials prepared by other police officers. However, California law permits a gang expert to rely on hearsay in forming his opinion, so long as the threshold requirement of reliability is satisfied. See Gardeley, 14 Cal.4th at 618. " Thus, a gang expert may rely upon conversations with gang members, on his or her personal investigations of gang-related crimes, and on information obtained from colleagues and other law enforcement agencies." People v. Hill, 191 Cal.App.4th 1104, 1121-22, 120 Cal.Rptr.3d 251 (2011); see also People v. Gonzalez, 38 Cal.4th 932, 949, 44 Cal.Rptr.3d 237, 135 P.3d 649 (2006) (" A gang expert's overall opinion is typically based on information drawn from many sources and on years of experience, which in sum may be reliable."). Here, Officer Clark based his opinion that Petitioner was an active PPHG member on his ten years of experience in law enforcement, his interactions with various gangs, including PPHG members, and the expertise of his colleagues. A rational juror could reasonably conclude that the gang expert's testimony was sufficient to establish that Petitioner was guilty of active participation in a criminal street gang. Nor has Petitioner pointed to any clearly established Supreme Court precedent that provides that a gang expert must have personally interacted with a defendant in order to give an opinion as to that person's gang membership. Consequently, the state appellate court's determination that Officer Clark's testimony was reliable and sufficient to support Petitioner's conviction evidence was neither contrary to nor an unreasonable application of federal law.

This Court cannot say that the state appellate court's rejection of Petitioner's insufficiency claim was an objectively unreasonable application of Jackson. When the evidence is viewed in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime of gang participation under California Penal Code § 186.22(a) beyond a reasonable doubt. Accordingly, Petitioner is not entitled to federal habeas relief.

B. Petitioner's Claim That the Evidence Was Insufficient to Support the Gang Enhancements Does Not Warrant Habeas Relief

Petitioner also contends that the evidence was insufficient to support the jury's finding on the gang enhancements on the three burglary counts. Petition at 5-6. Petitioner again argues that the prosecution did not introduce sufficient evidence that he acted in association with a criminal street gang because the gang expert's testimony was not based on personal knowledge and because he presented evidence that he was not a gang member at the time of the Target burglaries. Id. In addition, Petitioner argues that the prosecution did not present sufficient evidence that he had the specific intent to promote, further, or assist in PPHG's criminal conduct because the burglaries were not gang-related. Petition at 5-6; Traverse at 6-7.

1. Decision of the California Court of Appeal

The state appellate court rejected Petitioner's claim as follows:

Petitioner does not dispute that he participated in the Target store burglaries with his brother and cousin. The record contains substantial evidence from which the jury could conclude that Petitioner and his two confederates were active members of the PPHG at the time of the burglaries, so the jury could have reasonably drawn the additional inference that Petitioner's participation in the burglaries was in association with the gang's members. This evidence supports the gang expert's testimony that he was of the opinion the burglaries were done by Petitioner in association with the gang's members.
Petitioner's arguments on this element, that the expert's opinion that Petitioner and his confederates were active gang members is unreliable and that Petitioner presented contrary evidence, have already been rejected.
. . .
With respect to the second element for the enhancement, the expert testified the Target store burglaries were not necessarily done for the financial benefit of the gang. Nevertheless, his testimony and the testimony about the burglaries themselves is substantial evidence that, when Petitioner committed the burglaries in association with active members of the PPHG, he did so with the specific intent to promote, further, or assist in that criminal conduct--by actually entering the Target stores and stealing merchandise.
Petitioner argues the second element has not been sufficiently established because the People introduced no evidence that the burglaries were " gang related" and committed for the benefit of the gang. We disagree. Criminal conduct is " gang related, " and is subject to enhanced punishment under section 186.22, subdivision (b)(1), if the defendant acted in association with the gang and acted to promote its criminal conduct. ( Albillar, supra, 51 Cal.4th at p. 60.) The defendant need not have specifically intended to promote or benefit the gang itself. (Id. at p. 67.) Therefore, even if the jury credited Petitioner's testimony that he planned on using the proceeds from the burglaries to buy diapers and other necessities it could still reasonably conclude that Petitioner had the specific intent to advance the criminal conduct of his fellow gang members.
And even if Petitioner were correct that the crimes must be " gang related, " his arguments about the sufficiency of the evidence, like those made about the substantive crime of active participation in a criminal street gang, go to the weight to be given to the evidence. For example, Petitioner contends the fact that he and his confederates stole from Target stores in Los Angeles and Riverside Counties, instead of on the PPHG's home turf of San Bernardino, is further evidence that the crimes were not gang related. That a reasonable jury might draw such an inference does not diminish the fact that Petitioner's jury reasonably drew the contrary inference. ( Williams, supra, 170 Cal.App.4th at p. 626.)

LD 7 at 18-20.

2. Analysis

Petitioner's gang enhancements were imposed under California Penal Code § 186.22(b)(1), which requires proof of two separate elements: (1) that Petitioner committed the Target burglaries " for the benefit of, at the direction of, or in association with any criminal street gang, " and also that (2) Petitioner committed the crimes with the " specific intent to promote, further, or assist in any criminal conduct by gang members." Gardeley, 14 Cal.4th at 617. Specific intent is an essential element of the gang enhancement allegation, which the jury must find true beyond a reasonable doubt. See id. at 616; People v. Villalobos, 145 Cal.App.4th 310, 322, 51 Cal.Rptr.3d 678 (2006).

Here, the evidence presented at trial was sufficient to support the jury's true findings on the gang enhancement allegations. First, Petitioner committed the Target burglaries with his brother and cousin, who the evidence showed were active PPHG members at the time of the crimes. 1 RT 110, 123-25, 134-35. Thus, the evidence showed that Petitioner committed the Target burglaries " in association with a criminal street gang." Second, the evidence established that Petitioner acted with the " specific intent to . . . assist any criminal conduct by gang members." The fact that Petitioner entered the Target stores and stole merchandise alongside two PPHG members demonstrates that he was assisting those gang members in committing the charged crimes. " Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime." Villalobos, 145 Cal.App.4th at 322 (citing People v. Morales, 112 Cal.App.4th 1176, 1198, 5 Cal.Rptr.3d 615 (2003)).

The fact that Petitioner may have had a non-gang related motive for committing the crimes, i.e., to pay rent and buy household items, does not mean that he did not also intend to assist his brother and cousin in engaging in " criminal conduct." As noted by the state appellate court, Petitioner did not have to specifically intend to promote or benefit PPHG itself; he merely had to specifically intend to assist in the criminal conduct of PPHG members. The trial court noted at sentencing that the crimes were committed with planning, sophistication, and professionalism, as Petitioner and his accomplices " acted stealthy, carried a concealed backpack to facilitate the crime, and acted in a highly coordinated manner." 2 RT 307.

Finally, for the same reasons discussed in Section A., supra, the Court rejects Petitioner's contentions that the evidence to support the gang enhancements was insufficient because the gang expert lacked personal knowledge and because he presented evidence to show that he was no longer a PPHG member at the time of the crimes.

Based on the record, this Court cannot conclude that the state appellate court's rejection of Petitioner's insufficiency claim with respect to the jury's findings that the gang enhancements were true was an objectively unreasonable application of Jackson. When the evidence is viewed in the light most favorable to the prosecution, a rational trier of fact could have found the elements of gang enhancement under California Penal Code § 186.22(b)(1) beyond a reasonable doubt. Accordingly, Petitioner is not entitled to federal habeas relief.

IV.

CONCLUSION

It therefore is recommended that the District Court issue an Order: (1) accepting this Report and Recommendation; and (2) directing that Judgment be entered denying the Petition and dismissing this action with prejudice.


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