Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Navarette v. Lewis

United States District Court, C.D. California

January 12, 2015

LARRY NAVARETTE, Petitioner,
v.
G.D. LEWIS, Warden, Respondent

Larry Navarette, Petitioner, Pro se, Calipatria, CA.

For G D Lewis, Respondent: Lance E Winters, CAAG - Office of Attorney General, Los Angeles, CA.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

MARGARET A. NAGLE, UNITED STATES MAGISTRATE JUDGE.

This Report and Recommendation is submitted to the Honorable George H. King, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order No. 05-07 of the United States District Court for the Central District of California.

INTRODUCTION

On May 16, 2012, Petitioner, a prisoner in state custody, filed a habeas petition pursuant to 28 U.S.C. § 2254 (" Petition"). Respondent filed an Answer and lodged the pertinent state record (" Lodg."). Petitioner filed a Traverse. The matter is submitted and ready for decision.

PRIOR PROCEEDINGS

On April 30, 2011, a Los Angeles County Superior Court jury found Petitioner guilty of three counts of second degree robbery, in violation of California Penal Code § 211, and 12 counts of false imprisonment by violence, in violation of California Penal Code § 236. The jury found gang enhancement allegations under California Penal Code § 186.22(b)(1)(B) to be true but rejected the firearm allegations. (1 Supplemental Clerk's Transcript (" SCT") 165-79; 2 SCT 199-202, 240-42.) On June 12, 2009, the trial court sentenced Petitioner to 38 years and eight months in state prison, consisting of 13 years for the substantive offenses and 25 years and eight months for the gang enhancements. (2 SCT 286-96, 312-14.)

Petitioner was tried together with co-defendants Jens Majano, David Monterrosa, and Jose Guevara, who were convicted of the same crimes, with the same enhancements. Petitioner's co-defendants received the same sentence, except that Monterrosa received an additional year based on a prior conviction. (Lodgment (" Lodg.") No. 8 at 2.)

Petitioner appealed. (Lodg. No. 4.) On November 15, 2010, the California Court of Appeal affirmed the judgment in an unpublished opinion. (Lodg. No. 8.) Petitioner filed a petition for rehearing, which was denied. (Lodg. Nos. 9, 10.) He then filed a petition for review in the California Supreme Court. (Lodg. No. 11.) On March 2, 2011, the California Supreme Court summarily denied review. (Lodg. No. 12.)

SUMMARY OF THE EVIDENCE AT TRIAL

The Court has reviewed the record in this case, as well as the California Court of Appeal's summary of the evidence in its opinion on direct appeal. The state court's summary is consistent with the Court's own review of the record. Accordingly, the Court has quoted it below to provide an initial factual overview. The relevant portions of the trial record will be discussed further in connection with the Court's analysis of Petitioner's claims.[1]

A. The Offenses At Porto's Bakery
Jorge Aguilar, a member of the Santeria religion, operated Botanica Elegua (Botanica), an operation that performed spiritual cleansing rituals and tarot card readings.[2] Monterrosa and Eydi Munoz were friends, fellow practitioners of the Santeria religion, and Botanica customers. Aguilar knew Monterrosa and Munoz.
Around Thanksgiving 2007, Munoz, who worked at Porto's Bakery, told Aguilar and Monterrosa that she was upset that Porto's Bakery had not paid her for hours she had worked. Munoz also said that the bakery recently had made about $500, 000 in one day. Monterrosa suggested that they rob the bakery.
Aguilar, Munoz, and Monterrosa had four or five subsequent conversations about robbing Porto's Bakery. Other persons were present during those conversations. During one such conversation, Munoz drew a map of the inside of the bakery. Munoz said the best time to commit the robbery was after the bakery closed and the money was being counted. She said she would take out the trash through the bakery's back door, thus providing the robbers with access to the bakery.
On December 26, 2007, Aguilar, Munoz, and Monterrosa met to discuss the robbery. Among others present were Majano, Navarette, and Guevara. Monterrosa assigned tasks to his co-defendants. Navarette was to tie up people, Guevara was to serve as a lookout, and Majano was to gather the money and take the surveillance video.
On December 28, 2007, defendants and others gathered at Botanica. Monterrosa brought plastic zip ties to tie up people in the bakery. Others brought white dust masks, caps, tape to tie up people, and firearms. Most of those present had walkie-talkies. Defendants and their companions traveled to Porto's Bakery and entered the bakery about 8:20 p.m.
Upon entering Porto's Bakery, the robbers ordered the bakery's employees, at gun point, to get on the ground. The robbers bound the employees with plastic ties. The robbers took money and personal property from various employees, and bakery property including a laptop and a cash counting machine. Two robbers armed with guns forced bakery manager Braulo Garcia to open the bakery's petty cash safe that held $1 and $5 bills and quarters, dimes, nickels, and pennies. One of the robbers emptied this safe. The bakery's accountant testified that the robbers took $11, 177 from the bakery. The bakery was equipped with a video surveillance system consisting of 16 cameras that recorded various actions of the robbers. Portions of the video of the robbery and still photographs taken from the video were shown to the jury.
Aguilar testified that after the robbery, the robbers returned to Botanica where they divided about $11, 000. Cell phone records placed Guevara and Monterrosa near Botanica immediately after the robbery. Defendants were all present when the money was divided. Navarette gave his portion of the proceeds to Guevara as a rent payment. Monterrosa inquired why the surveillance video had not been obtained.
On December 29, 2007, Burbank Police Department officers investigating the Porto's Bakery robbery went to Botanica. A Dodge van and Dodge Intrepid were parked behind Botanica. The police found empty packaging for dust masks, zip ties, a bandana, a beanie cap, a glove, and duct tape inside the van. Inside the Intrepid, the police found a cash register tray, a cash counting machine, knit caps, bandanas, paper money wraps for different denominations, I.D. cards for victims of the Porto's Bakery robbery, a replica handgun, a Porto's Bakery bank vault receipt, a check made out to Porto's Bakery, latex gloves, and zip ties. Inside Botanica, the police found a box labeled " Dimes $250, " other similarly labeled boxes, loose cash, and rolls of coins. The police arrested Aguilar. On December 31, 2007, Mayra Garcia held a New Year's celebration at her house. Robert Martinez, Majano, and Guevara were there. During the party, Martinez overheard Majano and Guevara bragging about a job they had done that went well. Majano and Guevara talked about being " hot" and expressed a desire to move to Texas. Martinez assumed the reference to being " hot" meant that the police were after Majano and Guevara.
On January 1, 2008, the police arrested Majano at Mayra Garcia's house. An officer interviewed Majano and asked Majano to tell him what happened during the robbery. Majano responded, " If I do, the M.S. 13 gang or the Mara Salvatrucha gang would retaliate and kill me." The police arrested Navarette and Guevara later that day, and Monterrosa on February 22, 2008.
On January 2, 2008, Burbank Police Department officers interviewed Navarette. At first, Navarette denied participating in the Porto's Bakery robbery. After an officer showed Navarette photographs from the bakery's surveillance system, Navarette admitted participating in the robbery. Navarette told the officers that he was offered the opportunity to make money by participating in the robbery.

B. The Gang Expert's Testimony

Los Angeles Police Department Officer Rafael Lopez testified as the prosecution's gang expert. Officer Lopez was assigned to a gang task force that primarily focused on violent Hispanic street gangs such as Mara Salvatrucha Trece, which was also known as M.S. 13.[3] Officer Lopez's primary assignment for the prior seven to eight years had been investigating gang crimes committed by M.S. 13. Common symbols used by the gang included the letters " M" and " S, " the number " 13, " and a hand sign known as the " pitch fork."

Officer Lopez testified that Majano had various tattoos associated with M.S. 13, including a tattoo that was associated with an M.S. 13 clique (the Adams Locos clique), and a tattoo that blatantly and obviously advertised Majano's membership in M.S. 13. Officer Lopez testified that a tattoo of three dots in a triangle signified " mi vida loca, " which is Spanish for " my crazy life." Although gang members often had such three-dot tattoos, the tattoo was not specific to M.S. 13, and persons not in a gang could have the same tattoo. Guevara had three-dot tattoos on the left side of his wrist and on the webbing of his left hand. Navarette had a three-dot tattoo on his left wrist.
Officer Lopez testified that during a prior contact with Monterrosa, Monterrosa admitted membership in M.S. 13. Monterrosa had a tattoo of the letters " M.S." that covered his whole chest. Officer Lopez opined that that tattoo stood for " M.S. 13." Monterrosa also had a tattoo of the letters " F.L.S., " which Officer Lopez opined indicated that Monterrosa belonged to the Francis Locos clique. Officer Lopez opined that Monterrosa, Navarette, Guevara, and Majano were members of M.S. 13.
Officer Lopez explained to the jury that respect was one of the driving forces in M.S. 13. Officer Lopez testified that an M.S. 13 gang member built comradeship and trust with, and earned respect from, fellow gang members by committing crimes with them. The more crime a member committed, the more the member would be seen as loyal to the gang, earning the member respect and rank within the gang. Crimes by individual gang members bolstered the gang's reputation. M.S. 13 was a very violent gang. By committing violent crimes, M.S. 13 sent a message to the community and to rival gangs that M.S. 13 was a serious criminal gang that was willing to commit any type of crime.
The prosecutor asked Officer Lopez to assume certain hypothetical facts. The prosecutor asked Officer Lopez to assume, among other facts, that defendants committed a robbery at Porto's Bakery on December 28, 2007, with several other persons; Monterrosa helped plan the robbery and traveled to the bakery with other robbers to serve as a lookout; Navarette and Majano traveled to the bakery with five other persons; Navarette and Majano were dressed in masks and dark clothes; Navarette carried a real firearm and Majano carried a replica firearm; Navarette and Majano entered the bakery, tied up 12 employees, forced the manager to open the safe and give them the money inside, and stole wallets from three employees; Guevara traveled to the bakery where he acted as a lookout for Navarette and Guevara while they were inside committing the robbery; all of " them" communicated by walkie-talkie during the robbery; and after the robbery, " they" returned to a business where they gathered prior to the robbery and divided the " loot." Based on those facts, and given Officer Lopez's opinion that " they" were all members of M.S. 13, Officer Lopez testified that the robbery in the hypothetical could benefit a criminal street gang in several ways.
Officer Lopez explained to the jury that a crime such as the prosecutor described could benefit the gang financially because gangs use money to purchase narcotics and firearms. Officer Lopez further explained that committing a crime such as the prosecutor described would bolster the gang's reputation, causing the gang to gain notoriety as a more violent street gang resulting in more respect for the gang. The individual members who committed the robbery also would benefit financially as whatever they " netted" from the crime was theirs to keep. Participation in the robbery also would benefit the individual members by bolstering their reputation in the gang and respect in the gang.
On cross-examination, Officer Lopez was asked how the robbery would benefit the gang or enhance its reputation in the community if none of the participants " used the words M.S., Mara Salvatrucha, or displayed any of their tattoos" and none of the robbery victims knew the robbers were gang members. Officer Lopez responded that the robbery would still benefit the gang financially.
Officer Lopez further testified that even if the gang did not benefit financially and even if the robbery victims did not know that gang members committed the robbery, he would expect the gang members who participated in the robbery might brag about the robbery to other gang members. The gang and the individual gang members would benefit by the member's ability to brag about having committed the crime. The individual gang members' reputations would increase as they would become known as more loyal and active members of the gang.

(Lodg. No. 8 at 2-8.)

PETITIONER'S HABEAS CLAIMS

1. The specific intent requirement in the gang enhancement statute is unconstitutionally vague.

2. Imposition of the gang enhancement violated Petitioner's due process rights by punishing him for the gang membership of his accomplices.

3. The trial court erroneously instructed the jury regarding the elements of the gang enhancement.

4. The evidence was insufficient to support the jury's true findings on the gang enhancement allegations.

5. Petitioner's counsel was ineffective for failing to object to lay testimony that Petitioner was a member of the Mara Salvatrucha gang.

(Petition at 5-6, Attachment (" Attach.") at 1-9.)

STANDARD OF REVIEW

Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"), a state prisoner whose claim has been " adjudicated on the merits" cannot obtain federal habeas relief unless 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." See also Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011) (" By its terms § 2254(d) bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in § § 2254(d)(1) and (d)(2).").

Clearly established federal law, for purposes of Section 2254(d)(1) review, means Supreme Court holdings in existence at the time of the relevant state court decision. Greene v. Fisher, 132 S.Ct. 38, 44-45, 181 L.Ed.2d 336 (2011); see also Cullen v. Pinholster, 131 S.Ct. 1388, 1399, 179 L.Ed.2d 557 (2011); Richter, 131 S.Ct. at 785. Deference to a state court decision is required absent a Supreme Court decision that either " 'squarely addresses'" the issue in the case before the state court or establishes a legal principle that " 'clearly extends'" to a new context. Varghese v. Uribe, 736 F.3d 817, 824 (9th Cir. 2013) (citation omitted), cert. denied, 134 S.Ct. 1547, 188 L.Ed.2d 565 (2014); see also Richter, 131 S.Ct. at 786 (it " is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by" the Supreme Court) (citation omitted).

Under Section 2254(d)(1)'s first prong, a state court decision is " contrary to" clearly established federal law if the state court applies a rule that contradicts the relevant Supreme Court holdings or reaches a different conclusion than that reached by the high court on materially indistinguishable facts. Price v. Vincent, 538 U.S. 634');"> 538 U.S. 634, 123 S.Ct. 1848, 1853, 155 L.Ed.2d 877 (2003). " Thus, the 'contrary to' prong requires a direct and irreconcilable conflict with Supreme Court precedent." Murray v. Schriro, 745 F.3d 984, 997 (9th Cir. 2014).

Section 2254(d)(1)'s second, " unreasonable application" prong constitutes an objective standard that is not satisfied merely by finding that a state court erred in applying clearly established federal law. Richter, 131 S.Ct. at 785; Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 1174, 155 L.Ed.2d 144 (2003). " The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable -- a substantially higher threshold." Landrigan, 127 S.Ct. at 1939; see also Xiong v. Felker, 681 F.3d 1067, 1074 (9th Cir. 2012) (a finding that the state court was incorrect or erroneous is insufficient, because the Section 2254(d)(1) " inquiry is strictly limited to whether the state court's application of clearly established Supreme Court precedent" was objectively unreasonable).

" [S]o long as 'fairminded jurists could disagree' on the correctness of the state court's decision, " habeas relief is precluded by Section 2254(d). Richter, 131 S.Ct. at 786 (citation omitted); see also id. at 786-87 (a petitioner is required to prove that the state decision " was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement"). " Under § 2254(d), a habeas court must determine what arguments supported or, [in the case of a silent denial of relief], could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding of a prior decision of this Court." Id. at 786. A federal court has the authority to issue habeas relief only " where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents." Id.; see also Murray, 745 F.3d at 998 (" The deferential standard imposed under AEDPA cloaks a state court's determination with reasonableness, so long as 'fairminded jurists could disagree' as to whether a claim lacks merit.") (citation omitted).

" AEDPA thus imposes a 'highly deferential standard for evaluating state-court rulings, ' . . . and 'demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (citations omitted). " [T]he purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction." Greene, 132 S.Ct. at 43 (citation and quotation marks omitted); see also Richter, 131 S.Ct. at 786 (the AEDPA standard was " meant to be" " difficult to meet"). " The petitioner carries the burden of proof." Pinholster, 131 S.Ct. at 1398.

In the absence of any indication or state law procedural principles to the contrary, a state court's decision is presumed to be on the merits. Richter, 131 S.Ct. at 784-85. The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely. Id. at 785. Under the " look through" doctrine, federal habeas courts look through a state court's silent decision to the last reasoned decision of a state court. See Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590, 2594, 115 L.Ed.2d 706 (1991) (" Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding the judgment or rejecting the same claim rest upon the same ground."). When the state courts have denied a federal claim on the merits but no court has issued a reasoned decision, a petitioner has the burden of " showing there was no reasonable basis for the state court to deny relief, " Richter, 131 S.Ct. at 784, and the federal habeas court must independently review the record to determine whether the petitioner has met this burden, Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2011).

Here, Petitioner presented his claims in this Petition to the state courts on direct appeal. (Lodg. Nos. 4, 11.) The California Court of Appeal denied Petitioner's claims on their merits in a reasoned decision and the California Supreme Court summarily denied review. (Lodg. Nos. 8, 12.) Accordingly, the Court looks through the California Supreme Court's summary denial to the Court of Appeal's reasoned decision, and applies the AEDPA standard to that decision. See Ylst, 501 U.S. at 803-06, 111 S.Ct. at 2594-96; Merolillo v. Yates, 663 F.3d 444, 453 (9th Cir. 2011).

DISCUSSION

I. GROUND ONE DOES NOT WARRANT FEDERAL HABEAS RELIEF.

In Ground One, Petitioner contends that the specific intent requirement of California's gang enhancement statute, California Penal Code § 186.22(b), is unconstitutionally vague. (Petition at 5, Attach. at 1-4; Traverse at 2-4.)

California Penal Code § 186.22(b) provides for enhanced punishment for persons convicted of a felony " committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." Petitioner argues that the specific intent requirement is vague on its face, because it can be interpreted as requiring either a specific intent to aid a person who just happens to be a gang member or a specific intent to aid a person because that person is a gang member. Petitioner further argues that the specific intent requirement is vague as applied to him, because there was no evidence that he participated in the Porto's Bakery robbery with Mara Salvatrucha gang members for any reason other than to obtain money to pay his rent. (Petition, Attach. at 1-4; Traverse at 2-4.)

" To satisfy due process, 'a penal statute [must] define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement.'" Skilling v. United States, 561 U.S. 358, 130 S.Ct. 2896, 2927, 177 L.Ed.2d 619 (2010) (quoting Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983)); see also United States v. Williams, 553 U.S. 285, 128 S.Ct. 1830, 1845, 170 L.Ed.2d 650 (2008) (" A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement."); Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 1859, 144 L.Ed.2d 67 (1999) (stating that " [v]agueness may invalidate a criminal law for either of two independent reasons"). Ordinarily a person who engages in clearly proscribed conduct cannot complain of the vagueness of the law as applied to the conduct of the others, although that requirement is relaxed in the First Amendment context. Williams, 128 S.Ct. at 1845 (citing Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982)). Outside the First Amendment context, the reviewing court does not consider whether the statute is unconstitutional on its face, but only whether it is impermissibly vague under the circumstances of the case. Cavitt v. Cullen, 728 F.3d 1000, 1005 (9th Cir. 2013), cert. denied, 134 S.Ct. 1522, 188 L.Ed.2d 456 (2014); see Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 1857-58, 100 L.Ed.2d 372 (1988) (" Vagueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis.")

The California Court of Appeal held that Section 186.22(b) was not vague either as written or as applied to Petitioner. (Lodg. No. 8 at 10-11.) The state appellate court noted that the statute " expressly requires only the specific intent to assist 'gang members.'" (Id. at 10, citing People v. Morales, 112 Cal.App.4th 1176, 1198, 5 Cal.Rptr.3d 615 (2003) and People v. Villalobos, 145 Cal.App.4th 310, 322, 51 Cal.Rptr.3d 678 (2006)). It explained:

Such an express requirement is not reasonably interpreted to apply to aiding people who " happen" to be gang members or to aiding gang members " because" of their gang membership. Rather, the statute plainly sets forth that the defendant must have the " specific intent to ... assist ... gang members" (§ 186.22, subd. (b)(1) -- not because the person is a gang member or happens to be a gang member. Because of the specific intent requirement, as interpreted in Morales, the defendant must know the person being assisted is a gang member. Accordingly, the specific intent requirement in the gang enhancement is not unconstitutionally vague as written. Likewise, the specific intent requirement was not unconstitutionally vague as applied to Navarette because Navarette was an M.S. 13 gang member who participated in the offenses at Porto's Bakery in association with others he knew were M.S. 13 gang members. A jury fairly could infer that Navarette intended to assist the criminal conduct by his fellow gang members. ( Morales, supra, 112 Cal.App.4th at p. 1198; People v. Villalobos, supra, 145 Cal.App.4th at p. 322.)

(Lodg. No. 8 at 10-11.)

The Court concurs with the California Court of Appeal's analysis and conclusion. The plain language of the statute requires that the defendant must have the specific intent " to promote, further, or assist" criminal conduct by gang members. To have the required specific intent, the defendant must know that the person assisted is a gang member, but nothing in the statutory language suggests that the gang membership must be the reason for rendering assistance. As the California Supreme Court explained in People v. Albillar, 51 Cal.4th 47, 67, 119 Cal.Rptr.3d 415, 244 P.3d 1062 (2010), the first prong of Section 186.22(b)(1) requires a gang nexus, but the specific intent element at issue here does not. Under the statute, a defendant who commits a gang-related crime with the specific intent to assist criminal conduct by gang members is subject to the enhancement, whatever his reasons for wanting to render assistance. The ambiguity Petitioner purports to see in the statute does not exist. The " specific intent" requirement is sufficiently clear that persons of common intelligence can understand its meaning. See Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 2913-14, 37 L.Ed.2d 830 (1973).

The California Court of Appeal also reasonably found that the specific intent requirement was not vague as applied to Petitioner. As is summarized in detail in connection with Petitioner's sufficiency of the evidence claim in Ground Four, the evidence showed that Petitioner committed the Porto's Bakery robbery together with persons known to him to be members of the Mara Salvatrucha gang. Although not required for the Section 186.22(b) enhancement to apply, there was also evidence that Petitioner was himself a gang member. Under the facts of the case, the jury could fairly infer that Petitioner had the specific intent to assist in criminal conduct by known gang members. See Albillar, 51 Cal.4th at 68 (" if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members"). Petitioner's argument that his sole motivation was to obtain money for his rent pertains to the first prong of Section 186.22(b)(1) -- whether he committed the crimes for the " benefit of, at the direction of, or in association with" a criminal street gang -- and has no bearing on whether he had the specific intent to assist known gang members. (Traverse at 1-2.)

The state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law. Ground One, therefore, does not warrant federal habeas relief.

II. GROUND TWO DOES NOT WARRANT FEDERAL HABEAS RELIEF.

In Ground Two, Petitioner contends that the imposition of the gang enhancements violated his due process rights by punishing him solely for the gang membership of his accomplices. (Petition at 5, Attach. at 4-5; Traverse at 4.)

In Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 1473-74, 6 L.Ed.2d 782 (1961), the Supreme Court addressed the constitutionality of a conviction under the Smith Act, which criminalized " knowing membership" in any organization advocating the overthrow of the government of the United States by force or violence. Id. at 205. The Supreme Court stated:

In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity (here advocacy of violent overthrow), that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment.

Scales, 81 S.Ct. at 1484.

The Supreme Court held that the statute survived due process scrutiny if it was interpreted " to reach only 'active' members having also a guilty knowledge and intent." Scales, 81 S.Ct. at 1486. It explained that these three factors -- active membership, knowledge of the proscribed advocacy, and specific intent to advance the goal of violently overthrowing the government -- prevented " a conviction on what otherwise might be regarded as merely an expression of sympathy with the alleged criminal enterprise, unaccompanied by any significant action in its support or any commitment to undertake such action." Id. The Supreme Court also found no violation of the First Amendment. Id.

The California Court of Appeal rejected Petitioner's argument under Scales. It stated:

Citing Scales v. United States (1961) 367 U.S. 203, 228-230, 81 S.Ct. 1469, 6 L.Ed.2d 782, which held that a statute criminalizing group membership violates the constitutional principles of freedom of association and due process unless the statute includes a requirement that the defendant knew of the group's illegal goals and entertained the specific intent to advance those goals, Navarette argues that due process requires that the specific intent requirement in the gang enhancement statute be construed to include an intent to further the illegal aims or goals of a gang. Our Supreme Court rejected this argument in People v. Loeun (1997) 17 Cal.4th 1, 69 Cal.Rptr.2d 776, 947 P.2d 1313. There, the court stated, " The analogy that defendant draws between statutes that infringe on protected associational rights and California's STEP [Street Terrorism Enforcement and Prevention] Act is inapt because the STEP Act does not criminalize group membership. As we explained in People v. Gardeley [(1996)] 14 Cal.4th 605, 623-624, 59 Cal.Rptr.2d 356, 927 P.2d 713, the STEP Act punishes conduct, not association. Moreover, the STEP Act satisfies the requirements of due process by 'impos[ing] increased criminal penalties only when the criminal conduct is felonious and committed not only " for the benefit of, at the direction of, or in association with" a group that meets the specific statutory conditions of a " criminal street gang, " but also with the " specific intent to promote, further, or assist in any criminal conduct by gang members." ([Former] § 186.22, subd. (b)(1).)' ( Gardeley, supra, 14 Cal.4th at pp. 623-624.) We do not understand the due process clause to impose requirements of knowledge or specific intent beyond these, and defendant cites nothing to convince us otherwise." ( People v. Loeun, supra, 17 Cal.4th at p. 11; see also People v. Castenada (2000) 23 Cal.4th 743, 97 Cal.Rptr.2d 906, 3 P.3d 278 [section 186.22, subdivision (a) does not punish for mere membership or association with members, but rather for knowingly associating with a gang member in the commission of a crime].)

(Lodg. No. 8 at 11-12.)

The Court concurs with the California Court of Appeal's analysis and conclusion. Unlike the statute in Scales, the gang enhancement statute criminalizes conduct, not mere membership. " Indeed, it does not depend on membership in a gang at all. Rather, it applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang." Albillar, 51 Cal.4th at 67-68. Petitioner focuses solely on the specific intent requirement, but the specific intent must accompany the commission of a felony " for the benefit of, at the direction of, or in association with" a criminal street gang. California Penal Code § 186.22(b)(1). Because the enhancement depends on the commission of a gang-related felony by the defendant, it does not implicate Scales, which involved a statute criminalizing membership even in the absence of a specific criminal act. Albillar, 51 Cal.4th at 67-68 (rejecting argument that the constitutional requirement of personal guilt set forth in Scales compels reading Section 186.22(b)(1) to include a requirement of specific intent to aid the gang rather than merely gang members). Petitioner is not being penalized for gang membership alone, either his own or that of his accomplices.

To the extent Petitioner's argument rests on the First Amendment right to freedom of association, it is similarly without merit. " [T]he First Amendment protects an individual's right to join groups and associate with others holding similar beliefs." Dawson v. Delaware,, 503 U.S. 159, 112 S.Ct. 1093, 1097, 117 L.Ed.2d 309 (1992); see Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 3252, 82 L.Ed.2d 462 (1984) (" we have long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends"). However, Petitioner's First Amendment right of association does not extend to knowingly associating with gang members for the purpose of committing a crime. See Madsen v. Women's Health Center, Inc., 512 U.S. 753, 114 S.Ct. 2516, 2530, 129 L.Ed.2d 593 (1994) (" The freedom of association protected by the First Amendment does not extend to joining with others for the purpose of depriving third parties of their lawful rights."). The Section 186.22(b) enhancement penalized Petitioner for committing a gang-related felony with the specific intent of assisting gang members, not for associating with gang members. Numerous courts have rejected similar challenges to Section 186.22(b).[4]

Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law. Ground Two, therefore, does not warrant federal habeas relief.

III. GROUND THREE DOES NOT WARRANT FEDERAL HABEAS RELIEF.

In Ground Three, Petitioner contends that the trial court's jury instructions regarding the gang enhancement were erroneous and violated his due process rights. Specifically, Petitioner complains that the trial court failed to advise the jury that it could not find the gang enhancement allegations true unless it found that Petitioner acted with the specific intent to assist gang members because of their gang membership. (Petition at 6, Attach. at 5-6.)

A claim of instructional error does not raise a cognizable federal claim, unless the error " 'so infected the entire trial that the resulting conviction violates due process.'" Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973)); see also Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 1737, 52 L.Ed.2d 203 (1977). The claimed instructional error must be viewed in the light of the instructions as a whole, as well as the trial record. See Estelle, 112 S.Ct. at 482; Cupp, 94 S.Ct. at 400-01. Because an omitted instruction is less likely to be prejudicial than a misstatement of the law, a petitioner seeking habeas relief based on a failure to give a particular instruction bears an especially heavy burden. Henderson, 97 S.Ct. at 1737.

The California Court of Appeal found no instructional error. (Lodg. No. 8 at 12-13.) The trial court instructed the jury with CALCRIM No. 1401, which tracks the language of California Penal Code § 186.22(b). As given by the trial court, CALCRIM No. 1401 provided, in relevant part, that the prosecution had to prove Petitioner " intended to assist, further, or promote criminal conduct by gang members." (Id. at 13.) The California Court of Appeal noted that it had held, in connection with Petitioner's constitutional challenge to California Penal Code § 186.22(b), that " the specific intent requirement in section 186.22, subdivision (b) does not require the specific intent to assist the crimes of persons because they are gang members or happen to be gang members but rather to assist those known to be gang members in the commission of a crime." (Id. at 13; emphasis in original.) It concluded: " Because the specific intent requirement in section 186.22 properly states the prosecution's burden of proof, an instruction defining the prosecution's burden of proof based on the statute's language was proper." (Id.)

Petitioner has not demonstrated any error in the jury instructions under state law, much less a constitutional violation. The jury was instructed regarding the gang enhancement with CALCRIM No. 1401. The portion of the instruction regarding the specific intent requirement tracked the language of Section 186.22(b). (2 Clerk's Transcript (" CT") 374.) As the California Court of Appeal pointed out, " the statutory language defining a crime or defense is generally an appropriate and desirable basis for an instruction, " and the statutory language is sufficient when " the jury would have no difficulty in understanding the statute without guidance." People v. Estrada, 11 Cal.4th 568, 574, 46 Cal.Rptr.2d 586, 904 P.2d 1197 (1995) (internal quotation marks and citation omitted). The CALCRIM No. 1401 instruction given to the jury regarding the specific intent requirement was not ambiguous. Petitioner's argument to the contrary rests on his mistaken belief that Section 186.22(b) requires a specific intent to assist gang members because they are gang members, rather than for some other reason. The California Court of Appeal held that Section 186.22(b) contains no such requirement, and this Court defers to its construction of California law. See Bradshaw v. Richey, 546 U.S. 74, 126 S.Ct. 602, 604, 163 L.Ed.2d 407 (2005) (holding that state court's interpretation of state law, including that announced on direct appeal of challenged conviction, binds federal habeas court); Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 1428, 99 L.Ed.2d 721 & n.3 (1988) (federal habeas court is not at liberty to disregard a California Court of Appeal's rulings on state law when the California Supreme Court has denied review); see also Estelle, 112 S.Ct. at 480 (" it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"). There was no instructional error and no due process violation.

The state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law. As a result, Ground Three does not warrant federal habeas relief.

IV. GROUND FOUR DOES NOT WARRANT FEDERAL HABEAS RELIEF.

In Ground Four, Petitioner contends that there was insufficient evidence of specific intent to support the jury's finding that the gang enhancement allegations were true. (Petition at 6, Attach. at 7.)

A. The Applicable Clearly Established Federal Law

The Fourteenth Amendment's Due Process Clause guarantees that a criminal defendant may be convicted only " 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, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). The Supreme Court announced the federal standard for determining the sufficiency of the evidence to support a conviction in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under Jackson, " [a] petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). " [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 99 S.Ct. at 2789 (emphasis in original); see also Cavazos v. Smith, 132 S.Ct. 2, 4, 181 L.Ed.2d 311 (2011) ( per curiam ) (a habeas court " may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury"). " Put another way, the dispositive question under Jackson is 'whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.'" Chein v. Shumsky, 373 F.3d 978, 982-83 (9th Cir. 2004) ( en banc ) (quoting Jackson).

A habeas court reviewing a sufficiency of the evidence claim must consider all evidence admitted at trial, notwithstanding a contention by a petitioner that some of the admitted evidence should have been excluded. McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 672, 175 L.Ed.2d 582 (2010) ( per curiam ). " 'Circumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction.'" Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995)(citation omitted). The reviewing court need not decide whether it would have found the trial evidence sufficient or scrutinize " the reasoning process actually used by the fact-finder." Jackson, 99 S.Ct. at 2788-89 & n.13. Jackson also does not require that the prosecutor affirmatively " 'rule out every hypothesis except that of guilt.'" Wright v. West, 505 U.S. 277, 112 S.Ct. 2482, 2492, 120 L.Ed.2d 225 (1992)(citation omitted). When the factual record supports conflicting inferences, the federal court must presume -- even if it does not affirmatively appear on the record -- that the trier of fact resolved any such conflicts in favor of the prosecution and defer to that resolution. Jackson, 99 S.Ct. at 2793; see also Brown, 130 S.Ct. at 674. The habeas court must " preserve 'the factfinder's role as weigher of the evidence, '" id. (citation omitted) and, therefore, must accord " near-total deference" to a jury's credibility determinations, Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004). See also Smith, 132 S.Ct. at 4 (it " is the responsibility of the jury -- not the court -- to decide what conclusions should be drawn from the evidence admitted at trial"); Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 868, 130 L.Ed.2d 808 (1995) (" under Jackson, the assessment of the credibility of witnesses is generally beyond the scope of review.").

The federal court must refer to the substantive elements of the criminal offense as defined by state law and look to state law to determine what evidence is necessary to convict on the crime charged. See Jackson, 99 S.Ct. at 2792 n.16; Juan H., 408 F.3d at 1275. Further, this Court must defer to the state court's interpretation of state law. See Bradshaw, 126 S.Ct. at 604; Hicks, 108 S.Ct. at 1428 & n.3.

As the Ninth Circuit has explained, " [t]he relevant inquiry is not whether the evidence excludes every hypothesis except guilt, but whether the jury could reasonably arrive at its verdict." United States v. Mares, 940 F.2d 455, 458 (9th Cir. 1991). " Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, " and it requires only that they draw " 'reasonable inferences from basic facts to ultimate facts.'" Coleman v. Johnson, 132 S.Ct. 2060, 2064, 182 L.Ed.2d 978 (2012) ( per curiam ) (citation omitted). Under Jackson, the Court need not find that the conclusion of guilt was compelled, only that it rationally could have been reached. Drayden v. White, 232 F.3d 704, 709-10 (9th Cir. 2000).

Finally, Section 2254(d)(1) requires federal habeas courts to " apply the standards of Jackson with an additional layer of deference." Juan H., 408 F.3d at 1274; see also Parker v. Matthews, 132 S.Ct. 2148, 2152, 183 L.Ed.2d 32 (2012) ( per curiam ) (describing habeas review of a sufficiency of the evidence claim as based on a " twice-deferential standard"); Johnson, 132 S.Ct. at 2062 (" We have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference."). This doubly deferential standard sets a " high bar" for a petitioner, id., and limits the federal habeas court's inquiry to whether the state court's rejection of a sufficiency of the evidence challenge to a conviction was an objectively unreasonable application of Jackson. Emery v. Clark, 643 F.3d 1210, 1214 (9th Cir. 2011); Juan H., 408 F.3d at 1275 & n.13; see also Johnson, 132 S.Ct. at 2062 (under Supreme Court precedent, a federal court may not grant relief simply because it disagrees with the state court's decision rejecting a sufficiency of the evidence claim; rather, relief is permitted only if the state court's decision was objectively unreasonable).

B. The California Court Of Appeal's Decision

On direct appeal, the California Court of Appeal reiterated that " the specific intent requirement requires only the specific intent to assist 'gang members.'" (Lodg. No. 8 at 15.) " This requirement is satisfied when the evidence demonstrates the " [c]ommission of a crime in concert with known gang members." (Id. quoting Villalobos, 145 Cal.App.4th at 322). The California Court of Appeal rejected Petitioner's sufficiency of the evidence claim, stating:

Here, the evidence shows that all four defendants were M.S. 13 gang members, and thus it may be inferred they knew of each other's gang affiliations, that the defendants knew each other, and that the defendants assisted each other in the offenses at Porto's Bakery. Such evidence is sufficient to satisfy the specific intent requirement in section 186.22, subdivision (b).

(Lodg. No. 5 at 15.)

Petitioner argued on appeal that evidence he used the proceeds of the Porto's Bakery robbery to pay his rent showed that he did not commit the crimes to benefit the Mara Salvatrucha gang. The California Court of Appeal found the " benefit" argument was unavailing because the prosecution was not required to prove a defendant's specific intent to benefit the gang. (Lodg. No. 5 at 15, citing Morales, 112 Cal.App.4th at 1198).

C. Analysis

The linchpin of Petitioner's sufficiency of the evidence claim is his interpretation of the specific intent requirement of California Penal Code § 186.22(b). Petitioner concedes that he committed the charged crimes in association with members of the Mara Salvatrucha gang, but he argues that the evidence was insufficient to support a finding he had the specific intent to promote or assist the gang. (Petition, Attach. at 7.)

As discussed above, the California Court of Appeal held that Section 186.22(b) does not require the prosecution to prove the defendant acted with the specific intent to benefit the gang. (Lodg. 8 at 10, 15.) This Court must defer to the state appellate court's construction of the California law. See Bradshaw, 126 S.Ct. at 604; Hicks, 108 S.Ct. at 1428 & n.3. Moreover, a month after the California Court of Appeal issued its decision, the California Supreme Court handed down Albillar, in which it confirmed that the specific intent requirement of Section 186.22(b) requires only a specific intent to promote, further, or assist in criminal conduct (including the current crime) by gang members and does not require an intent to benefit the gang. Albillar, 51 Cal.4th at 66-67. The California Supreme Court explained that the Section 186.22(b) enhancement already requires proof that the defendant committed a gang-related crime in the first prong, and thus " [t]here is no further requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members." Id. (italics in original). Because the prosecution was not required to prove that Petitioner intended to benefit the Mara Salvatrucha gang, the absence of such evidence cannot be a basis for habeas relief.

The evidence was sufficient to enable a rational jury to find that Petitioner acted with the specific intent to promote, further, or assist criminal conduct by gang members. " [I]f substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." Albillar, 51 Cal.4th at 68; see also Emery, 643 F.3d at 1215 (" According to the state courts, evidence that the defendant had the specific intent to help a gang member commit the charged crime is enough to justify application of the enhancement."). There was evidence at trial that Petitioner and his co-defendants belonged to the Mara Salvatrucha gang. Aguilar testified that he knew Petitioner, Majano, Monterrosa, and Guevara to be members of the gang and had seen them greeting each other with Mara Salvatrucha hand signals. (3 Reporter's Transcript (" RT") 732, 740; 4 RT 971.) The gang expert testified that Monterrosa had admitted Mara Salvatrucha membership to him, and opined that Petitioner, Majano, and Guevara were also members of the gang. (3 RT 1039, 1042-45.) Additional evidence suggesting gang membership by Petitioner and his co-defendants included the following: Majano had large visible Mara Salvatrucha tattoos (3 RT 625-27, 738-39; 4 RT 1022-24, 1036); Monterrosa also had Mara Salvatrucha tattoos (3 RT 724, 4 RT 1041); Mayra Garcia testified that Majano was a Mara Salvatrucha gang member and told the police in a recorded interview that Petitioner, Guevara, and Majano belonged to the gang (4 RT 1008; 2 CT 349-50); documents indicating Mara Salvatrucha membership were found in Majano's suitcase, including a " roll call" identifying active gang members and listing Petitioner, Majano, and Guevara (3 RT 760-68; 4 RT 1026-27); and various items indicating Mara Salvatrucha membership were found in the apartment shared by Petitioner and Guevara (4 RT 1034-36; 5 RT 1246, 1248-50, 1262-62, 1272).

The jury could also reasonably infer that Petitioner knew his co-defendants were gang members from evidence that: Petitioner shared an apartment with Guevara, and items indicating Mara Salvatrucha membership were found in the apartment (3 RT 756; 4 RT 1034-36; 5 RT 1246, 1248-50, 1252); some of Majano's gang tattoos were easily visible, and he was at the apartment shared by Petitioner and Guevara when Garcia picked him up (3 RT 625-27, 738-39; 4 RT 989, 996); and all four co-defendants were present at Botanica Elegua for planning the robbery (4 RT 736-37).

In fact, Petitioner concedes in the Petition that he committed the robbery together with known members of the Mara Salvatrucha gang. He argues only that the evidence that he himself was a gang member was weak. (Petition, Attach. at 7.) However, there was evidence, recounted above, that Petitioner was a gang member, and in any event, the Section 186.22(b) enhancement does not depend on the defendant's own membership in a gang. Albillar, 51 Cal.4th at 67-68 (stressing that the enhancement " does not depend on membership in a gang"); see Villalobos, 145 Cal.App.4th at 322 (evidence that a non-gang member committed crimes in concert with her boyfriend, a known gang member, constituted substantial evidence that she acted with the specific intent required for gang enhancement).

Petitioner also contends that there was little evidence the Porto's Bakery robbery had anything to do with the Mara Salvatrucha gang. He argues that: the robbery did not take place in gang territory; the robbers did not identify themselves as gang members or brag about the crime afterwards; and although some of the participants in the robbery were members of the gang, Aguilar and Munoz were not. He also argues that evidence he used his share of the proceeds to make rent payment to Guevara shows that he participated in the robbery for personal financial motives. (Petition, Attach. at 7; Traverse at 5.)

These arguments pertain to the first prong of Section 186.22(b), whether the robbery was committed " for the benefit of, at the direction of, or in association with" a criminal street gang, rather than the specific intent prong that is the subject of Petitioners's sufficiency of the evidence claim. Moreover, there was sufficient evidence to show that the Porto's Bakery robbery was gang-related. First, the jury could reasonably infer from evidence that multiple gang members committed the robbery together and that they did so in association with the gang. See Morales, 112 Cal.App.4th at 1198 (when multiple gang members commit a crime together and there is no evidence that they did so while on a " frolic and detour" unrelated to the gang, the jury can reasonably infer that the crime was committed " in association with" the gang under section 186.22(b)(1)). Second, there was evidence that the robbery benefitted the gang. The gang expert testified, in response to a hypothetical, that the robbery would benefit the gang by bolstering its reputation as a more violent street gang, and it not only would bolster the reputation of the perpetrators within their gang but also would provide them with financial gain. The gang expert also testified that committing crimes together built camaraderie and respect among gang members and cemented their bonds. (4 RT 1028, 1047.) Petitioner's arguments to the contrary are an impermissible attempt to have this Court reweigh the evidence and draw conclusions different from the jury's. See Coleman, 132 S.Ct. at 2064; Jackson, 99 S.Ct. at 2793.

Viewed in the light most favorable to the prosecution, a rational jury could have found that when Petitioner and his co-defendants acted together to rob Porto's Bakery, Petitioner specifically intended to assist in criminal conduct by known gang members. See Emery, 643 F.3d at 1216 (sufficient evidence existed to satisfy specific intent component of gang enhancement where defendant assisted fellow gang member in committing underlying crime); Tran v. Horel, 446 F.App'x 859, 860-61 (9th Cir. Aug. 9, 2011) (evidence that petitioner committed offense with four gang members and knew that at least some of the four were gang members was sufficient to show specific intent for gang enhancement); Bonilla v. Adams, 423 F.App'x 738, 739-40 (9th Cir., Mar. 24, 2011) (testimony that defendant committed a robbery with two other gang members and expert testimony that explained in hypothetical terms how such offenses could be useful to the gang as a whole was sufficient to establish specific intent element of gang enhancement). Certainly, it cannot be said that no fairminded jurist would agree with the California Court of Appeal's determination that the evidence was sufficient to support the gang enhancement. Richter, 131 S.Ct. at 786.

The state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law. Ground Four, therefore, does not warrant federal habeas relief.

V. GROUND FIVE DOES NOT WARRANT FEDERAL HABEAS RELIEF.

In Ground Five, Petitioner contends that his defense counsel was ineffective, in violation of the Sixth Amendment, for failing to object to lay testimony that Petitioner was a member of the Mara Salvatrucha gang. (Petition at 6, Attach. at 8-9.)

A. The Applicable Clearly Established Federal Law

The Sixth Amendment guarantees the effective assistance of counsel at trial. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). " In addition to the deference granted to the state court's decision under AEDPA, [federal habeas courts] review ineffective assistance of counsel claims in the deferential light of" Strickland. Brown v. Ornoski, 503 F.3d 1006, 1011 (9th Cir. 2007).

To establish ineffective assistance by his counsel, Petitioner must demonstrate both that: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced his defense. Strickland, 104 S.Ct. at 2064-68. As both prongs of the Strickland test must be satisfied to establish a constitutional violation, failure to satisfy either prong requires that an ineffective assistance claim be denied. See id. at 2069 (no need to address deficiency of performance if prejudice is examined first and found lacking); Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) (" [f]ailure to satisfy either prong of the Strickland test obviates the need to consider the other").

The first prong of the Strickland test -- deficient performance -- requires a showing that, in the light of all the circumstances, counsel's performance was " outside the wide range of professionally competent assistance." Strickland, 104 S.Ct. at 2066; see also Richter, 131 S.Ct. at 788 (the " question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms, ' not whether it deviated from best practices or most common custom"). Judicial scrutiny of counsel's performance " must be highly deferential, " and this Court must guard against the distorting effects of hindsight and evaluate the challenged conduct from counsel's perspective at the time in issue. Strickland, 104 S.Ct. at 2065; see also Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2536, 156 L.Ed.2d 471 (2003) (the first Strickland prong is a " context-dependent consideration of the challenged conduct as seen 'from counsel's perspective at the time'"). There is a " strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 104 S.Ct. at 2065; see also Pinholster, 131 S.Ct. at 1403.

The second prong of the Strickland test -- prejudice -- requires showing a " reasonable probability that, but for counsel's unprofessional errors, the result of the [trial] would have been different." Strickland, 104 S.Ct. at 2068. A reasonable probability is a probability " sufficient to undermine confidence in the outcome." Id. " The likelihood of a different result must be substantial, not just conceivable." Richter, 131 S.Ct. at 792. The court must consider the totality of the evidence before the jury in determining whether a petitioner satisfied this standard. Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 2264, 176 L.Ed.2d 1098 (2010).

" The standards created by Strickland and § 2254(d) are both 'highly deferential, ' and when the two apply in tandem, review is 'doubly' so." Richter, 131 S.Ct. at 788 (citations omitted); see also Gentry v. Sinclair, 705 F.3d 884, 899 (9th Cir. 2013) (" when a petitioner raises a habeas claim under Strickland, he must surmount two highly deferential standards of reasonableness"). To succeed on an ineffective assistance of counsel claim governed by Section 2254(d), " it is not enough" to persuade a federal court that the Strickland test would be satisfied if a claim " were being analyzed in the first instance." Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002). It also " is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly." Id. Rather, the petitioner must show that the state court " applied Strickland to the facts of his case in an objectively unreasonable manner." Id.; see also Richter, 131 S.Ct. at 788 (the " question is not whether counsel's actions were reasonable, " but rather, " whether there is any reasonable argument that counsel satisfied Strickland 's deferential standard"). " [B]ecause the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009); see also Richter, 131 S.Ct. at 788 (given the general nature of the Strickland standard, " the range of reasonable applications [of the Strickland standard] is substantial").

B. Background

Aguilar testified on direct examination that Monterrosa was a Mara Salvatrucha gang member. (3 RT 732.) Later, he testified that Petitioner, Majano, and Guevara were also gang members. (3 RT 740.) Asked how he knew this, he responded, " Because all of them are homeboys." (3 RT 740.) On redirect examination, Aguilar further testified that at various times he saw all four defendants greet each other with hand signals he believed were representative of Mara Salvatrucha. (4 RT 971.)

The prosecutor also played for the jury a recording of Mayra Garcia's police interview. During the interview, Garcia said that Petitioner was a member of Mara Salvatrucha, specifically the Adams clique of the gang. (5 RT 1341; 2 CT 344, 345, 349-50.)

C. The California Court Of Appeal's Decision

Petitioner argued that defense counsel was ineffective for failing to object to lay opinions by Aguilar and Garcia that Petitioner was a member of the Mara Salvatrucha gang. The California Court of Appeal found the appellate record insufficient to establish that defense counsel was ineffective. It stated:

The record on appeal does not reveal the reason Navarette's defense counsel failed to make a foundational objection to Aguilar's challenged testimony or to the admission of the challenged statements in Garcia's recorded interview. It may be that defense counsel did not object because he understood that the testimony was of a fact and not an opinion. Defense counsel also may not have objected because he knew that the prosecution could establish a foundation for the challenged evidence and that the foundation would have harmed Navarette's defense. Navarette rejects this latter proposition, arguing that the prosecution attempted to lay a foundation for Aguilar's testimony but failed when the prosecutor asked Aguilar how he knew Majano, Navarette, and Guevara were M.S. 13 gang members and Aguilar responded, " Because all of them are homeboys." That the prosecutor's unchallenged exchange with [Aguilar] may have failed to lay a proper foundation does not mean that the prosecutor was unable to lay such a foundation. With respect to Garcia's recorded statement, Navarette argues that the police made no effort in their interview to lay a foundation for Garcia's statement that Navarette was an M.S. 13 gang member and, because Garcia testified at trial that she was unsure whether Navarette was an M.S. 13 gang member, the prosecution could not possibly lay a proper foundation. Absent an objection by defense counsel that required the prosecutor to lay a foundation for Garcia's recorded statement, it is unclear whether the prosecutor could have laid a proper foundation, notwithstanding Garcia's initial trial testimony. If pressed by the prosecutor, Garcia may have become more certain about Navarette's gang membership. Accordingly, because the record does not reveal the reason that Navarette's defense counsel did not object to the challenged evidence, any claim of ineffective assistance with respect to the asserted deficiencies is better suited to a petition for writ of habeas corpus. ( People v. Mendoza Tello, [15 Cal.4th 264, 267, 62 Cal.Rptr.2d 437, 933 P.2d 1134 (1997)].)

(Lodg No. 8 at 17-18)

D. Analysis

Petitioner presented his ineffective assistance of counsel claim to the state courts based solely on the appellate record. Petitioner's claim in this Petition is similarly limited to the appellate record. Indeed, if Petitioner had attempted to adduce additional evidence not presented to the state courts, such as a declaration from defense counsel, this Court could not consider it. See Pinholster, 131 S.Ct. at 1400 (AEDPA limits federal habeas court's review to the record before the state court that adjudicated claim).

In California, ineffective assistance claims generally must be raised by habeas petition rather than on direct appeal, " except in those rare instances where there is no conceivable tactical purpose for counsel's actions." People v. Salcido, 44 Cal.4th 93, 124, 79 Cal.Rptr.3d 54, 186 P.3d 437 (2008) (internal quotation marks and citations omitted). Petitioner argued on direct appeal that there could be no satisfactory explanation for defense counsel's failure to raise foundational objections to the challenged evidence, but the California Court of Appeal found otherwise. (Lodg. No. 8 at 18.) This Court concurs. California law allows lay opinion testimony if the opinion is rationally based on the witness's perceptions. California Evidence Code § 800(a). Had defense counsel objected, the trial court likely would have allowed the prosecutor to attempt to lay a foundation by questioning Aguilar about the basis for his opinion that Petitioner was a gang member. Defense counsel reasonably could have feared that the prosecutor might elicit testimony that Aguilar heard Petitioner make statements indicating Mara Salvatrucha membership, or saw him engage in conduct from which he inferred that Petitioner was a gang member. Such foundational testimony would have been more damaging to Petitioner's defense than Aguilar's unadorned assertion that Petitioner was a gang member.

The same is true of Garcia's recorded statements. During her interview, Garcia said that she knew Petitioner, whom she described as one of Majano's friends. (2 CT 344-45.) She also demonstrated familiarity with Petitioner's gang ties and even knew the name of the Mara Salvatrucha clique that he belonged to. (2 CT 349-50.) Although at trial Garcia testified that she was not sure whether Petitioner was or was not a member of Mara Salvatrucha (4 RT 995), there was a risk she might testify to personal knowledge of conduct or statements by Petitioner indicating gang ties if the prosecutor questioned her further to lay a foundation for her recorded statements.

Petitioner has not overcome the strong presumption that, under the circumstances, defense counsel's failure to object to the challenged testimony might be considered sound trial strategy. See Strickland, 104 S.Ct. at 2065; see also Richter, 131 S.Ct. at 788 (" The question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms, ' not whether it deviated from best practices or most common custom.") (citation omitted). Applying the doubly deferential lens of AEDPA, Petitioner has not shown that the California Court of Appeal's conclusion that he had not met the first prong of Strickland was objectively unreasonable. See Richter, 131 S.Ct. at 788; Mirzayance, 129 S.Ct. at 1420.

Although the California Court of Appeal did not proceed to Strickland's second prong, the Court also finds, applying de novo review, that Petitioner has not shown prejudice. See Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 2468, 162 L.Ed.2d 360 (2005) (examining Strickland's prejudice prong de novo when state courts never reached the issue of prejudice). First, there was other evidence of Petitioner's gang membership. The apartment Petitioner shared with Guevara contained a number of documents and physical items consistent with Mara Salvatrucha membership. (3 RT 756; 4 RT 1034-36; 5 RT 1246, 1248-50, 1252). While Petitioner did not have any Mara Salvatrucha tattoos, he had a tattoo of three dots in a triangle, which is consistent with gang membership although not exclusive to gang members or specific to any gang. (4 RT 1037-38, 1054-55.) Petitioner was also listed on the roll call of active gang members found in Majano's suitcase. (3 RT 764-65; 4 RT 1026-27.) Finally, testimony by Aguilar that he saw Petitioner and his co-defendants greet each other with Mara Salvatrucha hand signs would have been admissible even if his testimony that Petitioner was a gang member was not. (4 RT 971-72.)

In addition, the prosecution gang expert, Officer Lopez, opined that Petitioner was a member of Mara Salvatrucha. See People v. Duran, 97 Cal.App.4th 1448, 1464, 119 Cal.Rptr.2d 272 (2002) (" an individual's membership in a criminal street gang is a proper subject for expert testimony"). Lopez's opinion was based on a hypothetical assuming that Petitioner participated in a robbery with persons he believed to be members of Mara Salvatrucha, that he had a tattoo of three dots, and that a letter with the Mara Salvatrucha hand gesture was found in the apartment he shared with Guevara. (4 RT 1042-43.) When asked whether evidence that Petitioner was on the roll call of gang members would confirm his opinion that Petitioner was a gang member, Lopez said, " Yes. He would not have been on this roll call if he wasn't a member of the gang." (4 RT 1043.) The gang expert's opinion, together with the above-summarized evidence, provided additional evidence that Petitioner was a gang member.

Furthermore, the gang enhancement statute does not require that the defendant be a gang member, but only that he committed the felony " for the benefit of, at the at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." California Penal Code § 186.22(b)(1); see Albillar, 51 Cal.4th at 67-68 (Section 186.22(b) does not require gang membership); People v. Bragg, 161 Cal.App.4th 1385, 1402, 75 Cal.Rptr.3d 200 (2008) (active membership in gang not required). As discussed in connection with Ground Four, there was strong evidence that Petitioner committed the Porto's Bakery robbery in association with the Mara Salvatrucha gang or for its benefit, with the specific intent to assist members of the gang. There is no reasonable likelihood that the jury would have reached a different result with respect to the gang enhancements if defense counsel had objected to testimony by Aguilar and recorded statements by Garcia that Petitioner belonged to the gang. See Strickland, 104 S.Ct. at 2068.

To summarize, the California Court of Appeal reasonably applied clearly established federal law when it rejected Petitioner's ineffective assistance claim under the first prong of Strickland. 28 U.S.C. § 2254(d)(1). In addition, Petitioner's claim also fails under the second prong of Strickland. Accordingly, Ground Five does not warrant federal habeas relief.

RECOMMENDATION

For all of the foregoing reasons, IT IS RECOMMENDED that the District Judge issue an Order: (1) accepting the Report and Recommendation; (2) denying the Petition; and (3) directing that judgment be entered dismissing this action with prejudice.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.