United States District Court, C.D. California
January 13, 2015
ADAM JOSEPH ROMERO, Petitioner,
RON BARNES, Respondent
For Adam Joseph Romero, Petitioner: Albert Perez, Jr, Law Offices of Albert Perez Jr, West Covina, CA.
For Ron Barnes, Respondent: Kevin R Vienna, LEAD ATTORNEY, CAAG Office of Attorney General of California, San Diego, 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 James V. Selna, 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.
On October 5, 2012, Petitioner, a prisoner in state custody who is represented by counsel, filed a habeas petition pursuant to 28 U.S.C. § 2254 (" Petition"). Respondent filed an Answer in response and lodged the pertinent state record (" Lodg."). Petitioner thereafter filed a Reply. The matter is submitted and ready for decision.
In December 2009, a Riverside County Superior Court jury found Petitioner guilty of: vehicle theft, which was committed for the benefit of a criminal street gang (California Vehicle Code § 10851(a) and California Penal Code § 186.22 (" Section 186.22"), subd. (b)) (Count 6); witness intimidation, which was committed for the benefit of a criminal street gang (California Penal Code § 136.1(a) and Section 186.22(b)) (Count 7); and active participation in a criminal street gang (Section 186.22(a)) (Count 9). (Lodg. Nos. 1-2, Clerk's Transcript (" CT") 415, 526-30.) Petitioner admitted that he had served a prior prison term and committed his current offenses while he was out on bail. (CT 368; Lodg. Nos. 3-5, Reporter's Transcript (" RT") 32-34, 43-44.) Petitioner was sentenced to a determinate term of six years plus a consecutive indeterminate term of seven years to life. (CT 553-54, 579, 581-84.)
Petitioner appealed and raised the claims at issue in this case. (CT 580; Lodg. Nos. 6-8.) On June 15, 2011, the California Court of Appeal affirmed the judgment. (Lodg. No. 9.) Petitioner then filed a petition for review in the California Supreme Court, which was denied on September 14, 2011, without comment or citation to authority. (Lodg. Nos. 10-11.)
SUMMARY OF THE EVIDENCE AT TRIAL
Danielle Lafaye (" Lafaye") rented a room in the apartment of Richard Whittington (" Whittington"). Lafaye had a Mazda automobile, which she parked outside the apartment. On the afternoon of October 4, 2008, she took a nap. When she woke up in the late afternoon or early evening, she noticed her car keys were gone. She looked out the window and saw that the Mazda was missing. She also noticed that someone had gone through her purse and money was missing. (RT 95.)
Lafaye believed that Whittington had taken her car, but she was scared to report the theft to the police due to the type of people with whom Whittington associated. (RT 96.) She called Shawn Barnes, a friend of Whittington, and Barnes told her Whittington had the car, everything was fine, and he would bring the car back with some food. (RT 96-97.) That same day, Whittington's parole officer came by the apartment, and Lafaye told him that Whittington had taken her car but she had not yet reported the situation to the police. (RT 96.)
When Lafaye woke up the next morning, October 5, 2008, her car still was missing. She left a voicemail for Whittington, advising him that she would report the car as stolen if it was not returned; she left similar voicemails for other people. (RT 97.) The next day, Lafaye looked out her window and saw her Mazda following a white truck driven by Whittington. A " Mexican" with a " shaved head" was driving her car. Whittington ran up the stairs to the apartment, grabbed something, and told Lafaye she was going to get her car back. The truck and the Mazda then pulled away. (RT 98-99.)
Shortly afterward, Lafaye received a phone call from Petitioner. He was an acquaintance, and she had his number in her cell phone and recognized it when the call came in. She also recognized Petitioner's voice, and he identified himself as " Mitey, " the name by which Lafaye knew him. Lafaye believed that " Mitey" was Petitioner's gang name and that he associated with gang members from Corona. (RT 92, 99-100, 135.) Petitioner stated that he had purchased the Mazda, and it now belonged to him. Lafaye said that she was going to report the car stolen and Petitioner got " really upset and mad." She indicated that she had not yet reported the car stolen, and asked Petitioner to bring it back. Petitioner told Lafaye not to contact the police and said that, if Lafaye reported the car stolen, he would blow up the car and the apartment and would come over and " take care of" her. (RT 100, 103.) The phone call made Lafaye nervous and scared, which made her not want to cooperate with the police. (RT 100, 103.)
At approximately 11:00 p.m. that evening, Lafaye was outside the apartment having a cigarette. She was standing right underneath a streetlight, and the street was lit up. Whittington walked up, and the two spoke. Lafaye saw her Mazda drive by slowly. The car was driven by " Weasel" (Gilbert Hernandez, Petitioner's co-defendant (" Hernandez")). Lafaye understood that Hernandez was a gang member. Hernandez pointed a gun at her and made eye contact. Lafaye was " [e]ven more scared" as a result of this incident. (RT 104-05, 108, 136.) Whittington yelled to Weasel to go back to the Howard Johnson motel in Norco. (RT 107; CT 347-48.)
Lafaye called 911 again, and the recording of that call was played for the jury. She told the dispatcher about the above incident and that the men were going to the Howard Johnson motel. (RT 106-07; CT 343-50 (People's Exhibit 5A, transcription of the 911 call).)
The police responded and took a report from Lafaye. She was shown photo lineups and identified photographs of Petitioner and Hernandez. The police found her car, and when she saw it at the police station, it was full of items that did not belong to her, including computers, printers, and check-making materials. (RT 107-11.)
Eric Hibbard, a police officer with the City of Riverside (" Hibbard"), went to the Howard Johnson motel. He found Petitioner and two women in a room. One of the women stated that: she arrived there after being driven in a black Mazda that was parked in front of the room; and Petitioner had the keys to the Mazda. Hibbard asked Petitioner if he had the Mazda keys; Petitioner responded that he did and unclipped the keys from his belt loop and handed them over. The DMV paperwork for the car was in the purse of one of the women, who stated that Lafaye had said the woman could use the car. (RT 143-49.)
Jeffrey Jones, a detective for the City of Riverside, conducted an inventory of Lafaye's Mazda. He discovered evidence of fraud activity, including blank checks, a computer, a printer, and DMV paperwork. (RT 150-51, 154.) Jones interviewed Petitioner, who stated that he drove the Mazda, and had seen Hernandez around but did not know him very well. (RT 152-53, 156.)
Michael Riley, a senior investigator with the Riverside County District Attorney's Office (" Riley"), testified as the prosecution's gang expert. (RT 158-65, 213-14.) Riley was familiar with Corona Varrio Locos, also known as Corona Vatos Locos (" CVL"), a Hispanic turf gang in the City of Corona and outlying areas. (RT 165-66, 169.) Although CVL operates primarily in Corona, it is not uncommon for gangs such as CVL to commit crimes in rival gang territory. A crime may be gang-related even if it is committed outside the gang member's territory. (RT 166-68.)
The primary activities of CVL are major assaults, weapons possession, auto theft, and witness intimidation. (RT 168.) There are a number of signs for the CVL gang, which may be displayed in graffiti or member tattoos. Not all gang members display tattoos. (RT 168-70.) In October 2008, CVL had over 200 members, who were divided into subgroups known as cliques. Petitioner belonged to one of those cliques, which was named Bandidos. Ricardo Serrato (" Serrato"), Francisco Cisneros Arreola (" Arreola"), Petitioner's brother, and Anwar Dawud belonged to the same clique. Petitioner was an active CVL member in October 2008. (RT 170-79, 188, 207-08, 214-16.)
Petitioner's gang moniker was " Little Mitey, " " Mitey 2, " or " Mitey II." Petitioner's older brother, Anthony Romero, was an active CVL member and his moniker was " Mitey 1." (RT 187-89.) Riley had reviewed field identification cards, which documented police officer contacts with Petitioner. Riley also had interviewed Petitioner in 2008, after the charged crimes, and Petitioner stated that if he were " hit up" -- i.e., asked by another gang member to which gang he belonged -- he would claim membership in Corona. (RT 189-92.) In addition, Riley was aware that Petitioner associated with known CVL members, as documented in field identification cards and photographs. In contacts documented in 1997 and 2005 field identification cards, Petitioner admitted to being a CVL member; in a 2001 contact, he denied gang membership but admitted he associated with the Bandidos clique. (RT 192-211.)
Riley based his opinion that Petitioner was an active CVL member in October 2008, on the totality of various factors. These included: Petitioner's interview statement that he would claim Corona gang membership if " hit up"; Petitioner's prior contacts with law enforcement in which he was observed associating with CVL members; Petitioner's 2003 conviction, in which he admitted the truth of a Section 186.22 gang enhancement; an address book belonging to a CVL member listed Petitioner's name, his gang moniker, and his booking number for the 2003 charge; and a photograph of graffiti, which included references to the Bandidos clique and Petitioner's gang moniker. (RT 217-19.) Riley did not possess any information indicating that Petitioner had left the CVL gang. (RT 222-23.)
Riley testified that, in October 2008, Hernandez, Petitioner's codefendant, was an active member of Barrio Norwalk, a criminal street gang also known as Varrio Norwalk. Denise Herrera, who was arrested with Hernandez, was a member of the same gang. (RT 182-84.) When Hernandez and Herrera were arrested, forged California identification cards were found in the car. (RT 186.) The parties stipulated that Barrio Norwalk was a criminal street gang for purposes of Section 186.22 and " the issues before" the jury. (RT 158.)
Riley described various crimes committed by CVL members and opined that they constituted predicate crimes within the meaning of Section 186.22. (RT 173.) On July 20, 2004, Serrato was convicted of being a felon in possession of a firearm, with a Section 186.22(b) gang enhancement found to be true. (RT 174-75.) On June 19, 2007, Arreola was convicted of the same crime, and a gang enhancement was found to be true. (RT 176.) On July 16, 2003, Petitioner was convicted of vehicle theft, and a gang enhancement was found to be true. (RT 176-78.)
Riley testified about his team's encounter with Petitioner at a May 2008 Cinco de Mayo festival. According to Riley, this festival has come to serve as a yearly gathering for CVL members. When the police contacted him at the festival, Petitioner was in the presence of Anwar Dawud, an active CVL member. Petitioner and Dawud were given a Section 186.22 warning, namely, told that their gang is considered to be a criminal street gang under Section 186.22, participation in the criminal street gang is a felony, and the commission of any felony could result in a sentence enhancement. Riley considers it significant that Petitioner was hanging out with Dawud at this festival, because the festival attracts CVL members and Petitioner's attendance and fraternization with Dawud demonstrates Petitioner's continuing interest in being a part of the group. (RT 207-11.)
According to Riley, the crime at issue is referred to as a known victim vehicle theft. Outside of domestic dispute situations, the primary perpetrators of this type of vehicle theft are gang members. Because of the " intimidation factor, " when this crime is committed in a gang area, victims are less likely to report it to the police than when the theft is from an anonymous victim. (RT 224.) Witness intimidation is a primary CVL activity, and Lafaye's testimony at trial illustrated the intimidation factor inherent in known victim vehicle thefts by gang members. (RT 224-27.)
Riley has observed a connection between the CVL and Varrio Norwalk gangs. He is aware of a home located in the middle of CVL territory that is occupied by a Varrios Norwalk member as well as a CVL member. There have been a number of criminal cases stemming from activities which occurred at that property, including a carjacking. Riley opined that the ability of a Varrios Norwalk gang member live in this home and commit crimes in CVL territory without retribution demonstrates the existence of an alliance between the two gangs. Riley recalled another instance in which members of both gangs were in the same car and the Varrios Norwalk member committed a crime in CVL territory without retribution. (RT 227-29.) Thus, it did not surprise Riley that Hernandez was operating within CVL territory with Petitioner. (RT 279.) Riley also described how, in California prisons, gang members are divided between those who claim membership in the northern part of the state and those who claim membership in the southern part and how these prison/geographical associations often carry over into the street as between gang members who otherwise might be rivals. Riley also testified that members of both CVL and Varrios Norwalk are under the umbrella of the Mexican mafia when in custody. (RT 229-31.)
The prosecutor posed a hypothetical to Riley based on the above-described facts of this case and asked Riley how these instances of witness intimidation and possession of a stolen vehicle benefitted a criminal street gang. Riley responded that: the possession of the stolen vehicle enabled a gang member to be mobile and commit other crimes, such as narcotics sales or a drive-by shooting, because the car could be ditched after the other crime(s) and nothing about the car would tie it to the gang member; and witness intimidation is how gangs are empowered and, thus, cause members of the general public to be afraid to report crimes by gang members. (RT 231-33.) The prosecutor then added facts to the hypothetical related to the evidence of fraud found at the motel and in the car, as well as the fact that a witness failed to appear at the preliminary hearing and appeared fearful when testifying at trial. Riley opined that there was a growing trend of gangs committing fraud-based crimes, including check fraud, and this often was done using a motel as a base. Again, the stolen vehicle would benefit the gang member, because it would allow him to evade identification when the cashing or attempting to cash fraudulent checks. (RT 235-36.)
Riley further opined that, based upon the facts of the hypothetical, the crimes were committed by a CVL member in association with or for the benefit of another criminal street gang, i.e., Varrios Norwalk. (RT 237-45.) Riley noted, inter alia, that the victim initially was threatened over the phone by a CVL member and then was threatened physically by a Varrios Norwalk member (when he drove by in her car and pointed a gun at her), and this was another example of the members of two gangs acting in association with each other. (RT 240-41.) This type of witness intimidation demonstrates the intent to promote, further, or assist the two gangs, because the witness failed to appear at the preliminary hearing and was fearful when she testified at trial, thus hindering the prosecution of the case. (RT 241-42.) Riley also opined that the facts of the hypothetical demonstrated that the CVL member acted to promote, further, and assist CVL in its primary activities, because his acts enabled further criminal activities and made it more difficult for law enforcement to investigate and suppress gang activity in general. (RT 245-47.) Riley further opined that it is very common for a gang member to commit a crime that benefits both him personally and his gang. (RT 291-92.)
On cross-examination, Riley testified he was not aware that Petitioner had any gang tattoos. (RT 268.) Riley noted that, among younger gang members, it was becoming more common to stay away from tattoos. This change started around the time Petitioner became a gang member. (RT 268-70.) Riley conceded that there were no field identification cards for Petitioner during a three-year period (Spring 2005 through Spring 2008). (RT 275.) On redirect examination, Riley explained why there might not be field identifications for a gang member during a set period of time, including because the gang member was incarcerated. (RT 290-91.) Riley did not know whether Petitioner was incarcerated between 2005 and 2008. (RT 292.)
Enrique Tira, a licensed private investigator and former police officer, testified as a defense gang expert. (RT 305-06.) Tira opined that Petitioner was not an active gang member at the time of the charged crimes (October 2008), because Petitioner had no tattoos directly referencing a gang and there were not many field identification cards documenting police officer contacts with Petitioner. Tira opined that, if someone is active in a gang, it would be unusual for several weeks to pass without a documented police contact. (RT 315-16.) Tira also opined that CVL is not a gang and, instead, is simply a geographical area in which gangs or cliques operate. (RT 317-18.) Tira further opined that the October 2008 incidents at issue did not constitute a " gang crime, " because nothing about the events was gang-related. None of the people involved threw gang signs or bragged about the crimes to intimidate people. (RT 319.) In Tira's view, it is more common for a gang member to commit a crime for personal reasons than for the benefit of the gang. (RT 320.)
Petitioner testified that he was 27 years old at the time of trial and had lived in Corona for 26 years. (RT 362-63.) His older brother is a gang member. Petitioner has friends who are gang members as well as friends he met while playing high school football who are not gang members. (Id.)
When he was young, Petitioner was stopped a number of times by police officers, often when Petitioner was with a member of the Bandidos gang. Petitioner told the police he was from Corona, because that was where he lived, but he never said he was a member of Bandidos or any other gang. Petitioner was " never jumped in" a gang " officially." (RT 364-65.)
When Petitioner was 18 or 19, he was convicted of grand theft automobile, which he committed with a gang member. He admitted the truth of a Section 186.22(b) gang enhancement allegation, but he did not know what it meant and did so only because it was part of the plea deal. He received a three-year sentence, served two years in prison, and was paroled in March 2005. (RT 365-66.)
After Petitioner was released from prison, he moved in with his parents, who live in an area he terms the " Beverly Hills of Riverside, " and he worked in the family construction business. In November 2005, he moved into an apartment in the area and got married the next month. After a year, Petitioner bought a house in Lake Elsinore, where he lived for about a year and a half. (RT 366-68.) Work began to get slow, Petitioner started using drugs again (speed and methamphetamine), and his house went into foreclosure. In August 2008, Petitioner and his wife moved in with her parents in Corona. (RT 368-70.) Petitioner was unable to hide his drug use from his in-laws, so he would " take off" and stay with friends or in motels. He was not working and would sell drugs to get by and fund his own drug use. (RT 369-70.)
In May 2008, Petitioner and his wife went to a Cinco de Mayo festival where Petitioner ran into Dawud. Petitioner had known Dawud since seventh grade (RT 370-71), but he did not know Dawud was a gang member (RT 394-95).
Petitioner knew Lafaye, because she would call him to buy drugs from him. Whittington also bought drugs from Petitioner. (RT 371-72.) Petitioner thought Lafaye and Whittington were a couple and that the Mazda belonged to Whittington. (RT 374.)
In October 2008, Whittington asked Petitioner if he wanted to use the Mazda for a couple hours in exchange for drugs. (RT 373, 375.) Petitioner used the car for only an hour or so and just went around the corner. (RT 374.) Petitioner did not drive the Mazda in front of Lafaye's apartment. (Id.) When Petitioner returned the Mazda to Whittington at the Howard Johnson motel (where Petitioner had picked up the car), Whittington was " flipping out" and explained that Lafaye had called his parole officer and said the car was stolen. Petitioner was upset, because he could have been pulled over in a car that had been reported stolen. (RT 375-77.)
Petitioner called Lafaye to find out what was going on and to see if everything was " cool." Lafaye, however, was kind of hysterical. Petitioner told her that Whittington had let him use the car for a little bit in exchange for drugs, but that Petitioner had returned the car to Whittington as soon as Petitioner learned it had been reported stolen. Lafaye told Petitioner to bring her car back, and Petitioner responded that he could not drive a car that had been reported stolen and she should get the car at the Howard Johnson motel. (RT 377-38.) The two of them argued, with Lafaye insisting that Petitioner bring the Mazda to her and Petitioner telling her she could get her car at the motel. Petitioner never threatened Lafaye during this call and was trying to help her. Lafaye, however, threatened to call the police and tell them Petitioner stole her car. (RT 379-80.)
Petitioner stayed at a friend's house that night. The next day, Petitioner returned to the Howard Johnson motel to drop something off with Desiree, a friend of his who was staying there, and to use the shower in the room. It was almost check-out time when he got there, and Desiree asked him to put her bags in the Mazda. Petitioner did not want to lose the car keys, so he clipped them to his belt. The police arrived shortly after, asked for Whittington and Desiree, and arrested Petitioner. (RT 380-82.)
Petitioner had met Hernandez a few times when hanging out with other people who did drugs. Petitioner only knew Hernandez by the name Weasel, not his real name, and did not know he was a gang member despite his numerous gang tattoos. (RT 382-83, 403-05, 423-24.) When Petitioner arrived at the Howard Johnson motel that morning, he saw Hernandez outside, who then drove away. (RT 383.)
On cross-examination, Petitioner testified that his 2003 conviction was not only for grand theft automobile but also for evading the police and possession of a gun. (RT 388.) Petitioner had an earlier conviction for possession for sale of methamphetamine; he was on probation for that conviction at the time of the 2003 offenses. (RT 388-90.)
PETITIONER'S HABEAS CLAIMS
Ground One: The evidence was insufficient to support the Count 9 Section 186.22(a) conviction. There was no evidence that Petitioner " actively participate[d]" in a criminal street gang at the time of the offenses (October 2008), and he committed the offenses alone. Petitioner had no gang tattoos, and he had not had contact with the police for three years. CVL was not shown to be a criminal street gang; rather, CVL is a geographical area in which several gangs and cliques operate. (Petition at 5.)
Ground Two: The evidence was insufficient to support the Section 186.22(b) enhancement the jury found to be true with respect to Counts 6 and 7. There was no evidence Petitioner committed the offenses " to benefit [the] CVL gang" or that he had the specific intent to benefit that gang, rather to act solely for his personal benefit. No other members of CVL participated in the crimes. No one exhibited gang indicia, and the gang name was not announced. (Petition at 5-6.)
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).").
The Petition is governed by the Section 2254(d) standard of review, because the two claims raised by Petitioner were resolved on their merits in Petitioner's state appeal proceedings. Petitioner presented his claims to the California Court of Appeal and the California Supreme Court on direct review. (Lodg. Nos. 6, 8, and 10.) The California Court of Appeal denied relief on the merits in a reasoned decision, and the California Supreme Court summarily denied the petition for review. (Lodg. Nos. 9 and 11.) The Court looks through the California Supreme Court's silent denial to the last reasoned decision, i.e., that of the California Court of Appeal. Cannedy v. Adams, 706 F.3d 1148, 1158-59 (9th Cir.), amended by 733 F.3d 794, cert. denied, 134 S.Ct. 1001, 187 L.Ed.2d 863 (2013); see also Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 2259, 176 L.Ed.2d 1098 (2010) (when claims were raised on appeal and denied by state court of appeal on their merits in a reasoned decision, and the state supreme court denied discretionary review, the " relevant state-court decision" for purposes of Section 2254(d) review was the state court of appeal decision). The Court therefore must evaluate Petitioner's claims under the Section 2254(d)(1) standard of review.
Clearly established federal law, for purposes of Section 2254(d)(1) review, means Supreme Court holdings in existence at the time of the state court decision in issue. Greene v. Fisher, 132 S.Ct. 38, 44-45, 181 L.Ed.2d 336 (2011); Cullen v. Pinholster, 131 S.Ct. 1388, 1399, 179 L.Ed.2d 557 (2011); Richter, 131 S.Ct. at 785. Under Section 2254(d)(1)'s first prong, a state court decision is " contrary to" 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, 123 S.Ct. 1166, 1174, 155 L.Ed.2d 144 (2003). " The question . . . is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable -- a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007); 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).
I. The Clearly Established Federal Law That Governs Petitioner's Claims
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, " the 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); see also Drayden v. White, 232 F.3d 704, 709-10 (9th Cir. 2000) (explaining that the evidence may be sufficient to support a jury's finding even if it does not " compel" that finding).
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.
Ultimately, a 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. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). The habeas court must " preserve 'the factfinder's role as weigher of the evidence, '" Brown, 130 S.Ct. at 674 (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."). " 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). Moreover, the federal habeas court must " apply the standards of Jackson with an additional layer of deference" under Section 2254(d)(1). Juan H., 408 F.3d at 1274; see also 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 limits the federal habeas court's inquiry to whether the state court's rejection of a sufficiency of the evidence challenge was an objectively unreasonable application of Jackson. Emery v. Clark, 643 F.3d 1210, 1214 (9th Cir. 2011); see also Johnson, 132 S.Ct. at 2062.
II. Ground One
In his first claim, Petitioner contends that the evidence was insufficient to support his conviction under Section 186.22(a) (Count 9), because the evidence did not establish the first element of that crime, i.e., that he " actively participate[d]" in a criminal street gang at the time of the crimes. Petitioner " concedes he was an active participant in CVL before 2005, " but argues that the evidence was insufficient to show that he was an active CVL member in October 2008. (Reply at 13.) In support of Ground One, Petitioner makes the following contentions:
First, Petitioner asserts that Riley, the prosecution's gang expert, conceded that Petitioner could have been on " hiatus" from active participation in CVL between 2005 and May 2008, given the lack of evidence of any association between Petitioner and CVL during that timeframe. (Reply at 13.)
Second, Petitioner argues that the police sighting of Petitioner in the presence of a known CVL member at the May 2008 Cinco de Mayo festival did not prove active gang participation, because Riley testified that, besides CVL members, families and other members of the community attended the festival. (Reply at 13.)
Third, Petitioner asserts that the circumstances of the crimes do not evidence active gang participation, because there was no evidence that any of the other persons arrested in connection with the crimes or found in the hotel room were CVL members. In addition, no one involved wore CVL gang indicia, threw gang signs, or otherwise did anything to give notice of CVL involvement so that the gang would get credit for the crimes. (Reply at 13.)
Fourth and finally, Petitioner contends that the fact that Hernandez and Herrera were Varrios Norwalk members is irrelevant, because the instances of CVL-Varrios Norwalk members working together to which Riley testified did not prove that anyone who participated in a crime with a Varrios Norwalk member must be a CVL member. (Reply at 14.)
A. The State Court Decision
The California Court of Appeal described the standard governing its review as whether " [s]ubstantial evidence in the record, viewed in the light most favorable to the jury's verdict, amply supports [Petitioner's] conviction." (Lodg. No. 9 at 8.) The state appellate court observed that, although Petitioner testified he was not a gang member after he was paroled in 2005, Riley opined that Petitioner was an active member in October 2008 ( id.).
Riley based his opinion partly on [Petitioner's] numerous instances of gang associations between 1997 and 2005. In November 2001, both [Petitioner] and his brother were identified in Bandidos gang graffiti. In 2003, [Petitioner] pleaded guilty to vehicle theft with a gang enhancement.
Additionally, [Petitioner] attended the 2008 Cinco de Mayo festival with Dawud, a gang member. Riley concluded [Petitioner's] presence showed he was still a gang member associating with other gang members. Although [Petitioner's] attendance at the Cinco de Mayo festival with a Bandidos gang member could be interpreted benignly, the jury did not have to accept [Petitioner's] characterization of that evidence: " As the court observed in People v. Martinez, 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." . . .
(Lodg. No. 9 at 8-9; citation and internal quotation marks omitted.)
The California Court of Appeal further observed that:
More evidence of defendant's gang participation was demonstrated in his postarrest interview with Riley when defendant refused to deny unequivocally his gang membership. Riley found no evidence defendant had taken steps to disassociate himself from the gang. Furthermore, Riley determined the subject crimes were committed when defendant was acting in concert with Hernandez, a member of Barrio Norwalk, affiliated with CVL.
(Lodg. No. 9 at 9.)
The California Court of Appeal concluded that " [t]aken altogether the evidence reasonably supported a jury finding of defendant's active participation in the CVL gang." (Lodg. No. 9 at 9.)
B. The State Court Reasonably Determined That Sufficient Evidence Supported The Count 9 Conviction.
The Court has carefully reviewed the record and concludes that the finding of the California Court of Appeal -- that sufficient evidence was presented at trial to support a finding that Petitioner was an active participant in CVL in October 2008 -- is objectively reasonable under the clearly established federal law.
The jury was presented with ample evidence that Petitioner was an active CVL member from 1997 until 2005, as documented in field interview cards, photographs, and Petitioner's 2003 admission of the truth of a Section 186.22 gang enhancement. Indeed, Petitioner admits that he was an active CVL member until 2005. Although Petitioner testified that he thereafter did not actively participate in CVL, the jury was not required to accept his version of events in view of evidence that indicated otherwise and Riley's expert opinion.
Riley's opinion that Petitioner was an active participant in CVL in October 2008 was predicated on the totality of information before him, including events pre-dating and post-dating 2005. In addition to the ample evidence of Petitioner's active CVL participation prior to 2005, Riley relied on Petitioner's attendance at the May 2008 Cinco de Mayo festival -- a known CVL gathering in which Petitioner was present with Dawud, a CVL member. Although, as Petitioner observes, Riley acknowledged that persons other than CVL members attended this festival (RT 266), Petitioner ignores the qualified nature of Riley's acknowledgment. Specifically, Riley testified that: although families who do not have gang ties attend the festival, none of the gang members Riley observed at the festival had their families with them; and Riley did not observe Petitioner's family present. (RT 266.)
Moreover, Petitioner's argument ignores Riley's testimony that: when Petitioner was interviewed after the October 2008 crimes and was asked what he would do if he were " hit up, " Petitioner stated that he would claim Corona membership; and this statement by Petitioner was significant, because someone who was not a member of CVL was unlikely to claim the gang due to the risk of violent action for falsely claiming gang membership. (RT 191.) Although Petitioner testified at trial hat he said Corona because that was where he lived, the jury was not required to believe that Petitioner -- an admittedly active member of CVL for many years -- would not understand the implications of stating he would claim Corona if he were " hit up." A reasonable factfinder could have perceived this testimony to be disingenuous and found Riley's testimony about the significance of Petitioner's statement to be credible.
Petitioner's arguments about the circumstances of the crimes are also unpersuasive. The fact that the other participants did not demonstrate visible indicia of CVL membership is of no moment, given the uncontradicted evidence that Hernandez and Herrera were Varrios Norwalk members and, therefore, would not have displayed indicia of CVL, a different gang, and there was no evidence that the other persons involved, such as Whittington, were associated with any gang. Contrary to Petitioner's assertion that the gang membership of Hernandez and Herrera was irrelevant, the fact that Hernandez and Herrera were gang members tended to support the conclusion that Petitioner was an active CVL member rather than to negate it. Riley's testimony about past incidents of CVL and Varrios Norwalk gang members working together to commit crimes was uncontradicted. Given the other evidence of Petitioner's CVL participation, the jury could have inferred that his commission of these crimes jointly with two Varrios Norwalk members was yet another instance of CVL and Varrios Norwalk members working together. While such an inference was not required, it was a reasonable one for the jurors to draw.
Finally, with respect to Petitioner's contention about Riley's asserted concession that Petitioner could have been on hiatus from gang participation between 2005 and 2008 (RT 276), Petitioner again ignores the entirety of Riley's testimony. In response to defense counsel's questions, Riley testified generally that it is possible for a gang member to take a hiatus from gang activity for a period of time, albeit without formally leaving the gang. (RT 276.) When asked if it was " possible" that Petitioner was on hiatus between 2005 and 2008, Riley responded, " Could be possible, yes." (Id.) However, immediately thereafter, when defense counsel asked if Riley's testimony was that the hiatus ended at the May 2008 Cinco de Mayo festival, Riley clarified that " I can't assume that he was actually not involved in anything prior to that." (Id.)
Petitioner's arguments in support of Ground One underestimate the degree of deference that must be accorded to the state court's decision under the Jackson standard. To the extent that the trial testimony of Petitioner and Riley conflicted on any issue relevant to the Count 9 conviction, given the jury's verdict, it must be presumed that the jury resolved the conflict in favor of the prosecution, i.e., by crediting Riley's testimony rather than Petitioner's testimony. See Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; see also Emery, 643 F.3d at 1214 (explaining that the jury was entitled to disagree with the defendant's version of events and accept the prosecution's argument that the defendant's explanation was " implausible"). The Court must accord " near-total deference" to the jury's determination that Riley's testimony was credible and Petitioner's was not. See Bruce, 376 F.3d at 957. Even if the evidentiary record did not uniformly compel the jury's verdict, this does not render the evidence insufficient to support Petitioner's Count 9 conviction under Jackson review. See Drayden, 232 F.3d at 709-10. The only relevant question is whether there was sufficient evidence introduced at trial to persuade any rational factfinder to find Petitioner guilty beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 90 S.Ct. at 2789.
It was not objectively unreasonable for the California Court of Appeal to conclude that a rational trier of fact, when viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that Petitioner was an active participant in CVL as of the time of the crimes at issue. See Jackson, 443 U.S. at 319; Juan H., 408 F.3d at 1275. Thus, the state court's rejection of Petitioner's first sufficiency of the evidence claim was not contrary to, or an unreasonable application of, clearly established federal law. Federal habeas relief based upon Ground One, therefore, is precluded by Section 2254(d)(1).
III. Ground Two
In his second claim, Petitioner contends that the evidence was insufficient to support the Section 186.22(b) enhancement found true in connection with Counts 6 and 7. Specifically, Petitioner contends that two elements of Section 186.22(b) were not satisfied -- first, that the crimes were committed to benefit his gang, and second, that he possessed the requisite specific intent. (Reply at 18.) With respect to the first element, Petitioner argues there was no evidence that the crimes at issue were committed only by gang members or that a gang member who committed such crimes could not be acting with the intent to benefit himself personally rather than his gang. (Id.) With respect to the second element, Petitioner argues that Riley's testimony alone was insufficient to establish the intent element, and Lafaye's belief that Petitioner associated with gang members was irrelevant. (Id.) Petitioner further argues that no participants in the crimes displayed gang indicia or did anything to advertise that gang members were involved in the crimes, and some of the people involved in the crimes (including Whittington) were not shown to be gang members. (Id. at 18-19.)
A. Section 186.22(b)
Under California law, " [a] gang enhancement under Cal. Penal Code § 186.22(b) requires the prosecution to prove two separate and distinct elements beyond a reasonable doubt: first, that the defendant committed a felony 'for the benefit of, at the direction of, or in association with [a] criminal street gang'; and second, that the defendant committed the crime 'with the specific intent to promote, further, or assist' in criminal conduct by gang members." Bonilla v. Adams, 423 F.App'x 738, 739 (9th Cir. March 24, 2011); see also Emery, 643 F.3d at 1213; California Penal Code § 186.22(b)(1).
With respect to the first prong of Section 186.22(b)(1), " [e]xpert opinion that particular criminal conduct benefitted a gang" in a particular respect " can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a criminal street gang' within the meaning of section 186.22(b)(1)."
People v. Albillar, 51 Cal.4th 47, 63, 119 Cal.Rptr.3d 415, 244 P.3d 1062 (2010); see also
People v. Xue Vang, 52 Cal.4th 1038, 1044-52, 132 Cal.Rptr.3d 373, 262 P.3d 581 (2011) (" Expert opinion that particular criminal conduct benefitted a gang is not only permissible but can be sufficient to support the Penal Code section 186.22(b)(1) gang enhancement."); People v. Hernandez, 33 Cal.4th 1040, 1047-48, 16 Cal.Rptr.3d 880, 94 P.3d 1080 (2004) (" In order to prove the elements of the criminal street gang enhancement, the prosecution may, as in this case, present expert testimony on criminal street gangs."); People v. Gardeley, 14 Cal.4th 605, 617-18, 59 Cal.Rptr.2d 356, 927 P.2d 713 (1996) (finding that, in a gang case, " an expert may render opinion testimony on the basis of facts given 'in a hypothetical question that asks the expert to assume their truth'") (citation omitted).
With respect to the second prong of Section 186.22(b)(1), the California Supreme Court held in Albillar, 51 Cal.4th at 67, that although the first prong of Section 186.22(b)(1) requires a gang nexus, the specific intent element does not. See Emery, 643 F.3d at 1215 (Albillar " definitively interpreted" the specific intent requirement of Section 186.22(b)(1)). In Albillar, the California Supreme Court explained that, because the Section 186.22(b)(1) enhancement already requires proof that the defendant committed a gang-related crime pursuant to its first prong, " [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 ." 51 Cal.4th at 66-67 (emphasis original). Albillar made clear that the specific intent requirement " applies to any criminal conduct, without a further requirement that the conduct be 'apart from' the criminal conduct underlying the offense of conviction sought to be enhanced." Id. (emphasis in original). " [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." Id. 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.").
B. The State Court Decision
The California Court of Appeal rejected Petitioner's argument that neither the first nor second prongs of Section 186.22(b)(1) was supported by sufficient evidence. The state appellate court found:
The evidence in this case supported that the theft of the Mazda was committed by [Petitioner], a CVL gang member, acting in concert with Hernandez, a Barrio Norwalk gang member. [Petitioner] drove the Mazda and had possession of the keys when he was arrested. He called Lafaye and threatened her if she reported the car had been stolen. Hernandez also threatened her by pointing a gun at her. The crimes of car theft and witness intimidation were signature crimes of the CVL gang. Additionally, the crimes were apparently committed to facilitate additional crimes involving check or DMV fraud. The evidence supported Riley's expert opinion that the two crimes were committed by defendant for the benefit of the CVL gang acting together with the Barrio Norwalk gang.
(Lodg. No. 9 at 10.)
The California Court of Appeal rejected Petitioner's argument that People v. Ochoa, 179 Cal.App.4th 650, 102 Cal.Rptr.3d 108 (2009), precludes finding that sufficient evidence supported either prong of Section 186.22(b)(1). The California Court of appeal distinguished the state appellate court decision in Ochoa and found that Petitioner's case was closer to the subsequent state high court decision in Albillar:
In Ochoa, this court reversed the true findings on a gang enhancement. But the evidence in Ochoa was not substantial since it involved one person committing armed robbery at a fast-food restaurant, indicating no gang involvement. Here, [Petitioner] acted with another gang member to commit crimes for the benefit of the CVL and Barrio Norwalk gangs. Their joint participation, combined with the expert testimony, constituted substantial evidence supporting the true findings on the gang enhancements: " [T]he jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members." . . .
In Albillar, where the crimes were committed in concert by gang members, the California Supreme Court referred twice to Ochoa, concerning general principles of law: " We therefore find substantial evidence that defendants came together as gang members to attack Amanda M. and, thus, that they committed these crimes in association with the gang." . . .
. . . .
The present case is factually more similar to Albillar -- because it involves gang members committing crimes together -- rather than to Ochoa -- which involved a single defendant committing a crime alone. Albillar does not contradict Ochoa. Both cases support our conclusions herein. Here there was ample evidence that [Petitioner] was an active member of a street gang when the Mazda was taken.
(Lodg. No. 9 at 10-11.)
C. The State Court Reasonably Determined That Sufficient Evidence Supported The Section 186.22(b)(1) Enhancement.
In Ground Two, Petitioner contends that the evidence was insufficient to support the Section 186.22(b) enhancement with respect to Counts 6 and 7 because there was no evidence Petitioner committed the offenses " to benefit [the] CVL gang" or that he had the specific intent to benefit that gang. (Petition at 5-6.) However, Petitioner's argument rests on a misunderstanding of the elements of the Section 186.22(b) enhancement.
A federal habeas 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, the Court must defer to the state court's interpretation of state law. See Wainwright v. Goode, 464 U.S. 78, 104 S.Ct. 378, 382, 78 L.Ed.2d 187 (1983) (" the views of the state's highest court with respect to state law are binding on the federal courts"). Thus, in analyzing Ground Two, the Court is required to follow the Albillar court's interpretation of Section 186.22(b). See Bradshaw v. Richey, 546 U.S. 74, 126 S.Ct. 602, 604, 163 L.Ed.2d 407 (2005) ( per curiam ) (" [w]e have repeatedly held that a state court's interpretation of state law . . . binds a federal court sitting in habeas corpus"); see also Emery, 643 F.3d at 1215-16 (applying Albillar's " authoritative interpretation of section 186.22" to a habeas petitioner's claims).
Petitioner first contends that, to support the sentencing enhancement under Section 186.22(b)(1) enhancement, the prosecutor had to prove that only gang members committed the Count 6 and Count 7 crimes and no gang member would commit the crimes for his personal benefit. However, California law does not require such a showing. To the contrary, the California Supreme Court made clear in Albillar that properly-supported expert testimony alone can constitute substantial evidence to satisfy the first prong. It is, furthermore, well-settled that the testimony of a single witness is sufficient to support a conviction under the Jackson standard. See United States v. McClendon, 782 F.2d 785, 790 (9th Cir. 1986); United States v. Larios, 640 F.2d 938, 940 (9th Cir. 1981); see also Bruce, 376 F.3d at 957-58 (finding that the testimony of a victim unsupported by any other evidence and disputed by the petitioner was sufficient under Jackson to sustain the petitioner's conviction). Thus, Riley's expert opinion that Petitioner committed the Count 6 and Count 7 crimes in association with, or for the benefit of, a criminal street gang was sufficient to satisfy the first prong of Section 186.22(b)(1). See Vang, 52 Cal.4th at 1048; Albillar, 51 Cal.4th at 63; see also Emery, 643 F.3d at 1214 (expert testimony that petitioner shot the victim -- because the victim had slighted an acquaintance of petitioner who was a member of an affiliated gang and retaliating against the victim would accord petitioner respect in his gang and the affiliated gang -- was held to be sufficient to prove that petitioner committed the crime in association with a street gang). Specifically, as discussed above, Riley testified that the crimes of vehicle theft and witness intimidation would have benefitted Petitioner and Hernandez's respective gangs by facilitating the commission of other crimes, such as check fraud.
With respect to the second prong of Section 186.22(b)(1), Petitioner contends that the prosecutor failed to show that Petitioner acted with specific intent to promote, further, or assist in criminal conduct by gang members. However, Petitioner admitted that: he knew Hernandez " well"; knew him by the moniker Weasel rather than Hernandez's real name; they met through the same circle of acquaintances; and Petitioner saw some of Hernandez's tattoos but assumed they were " music signs." The evidence showed that Petitioner effectively grew up around gang members, including his older gang member brother and the numerous gang members Petitioner was with as documented over the years in field identification cards. Further, Lafaye testified, without contradiction, that Hernandez " was always claiming Norwalk and he had it tattooed all over pretty much." (RT 136; see also RT 423-24, describing Hernandez's numerous gang tattoos.) In view of this testimony, it was reasonable for the jury to conclude that Petitioner knew Hernandez was a gang member. Further, under Albillar, the jury was entitled to infer from the evidence that Petitioner intended to and did commit crimes with Hernandez, a known gang member, that Petitioner had the specific intent to promote, further, or assist criminal conduct by a gang member, namely Hernandez. Albillar, 51 Cal.4th at 68; see also 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). Accordingly, the state court's decision that there was sufficient evidence to support Petitioner's sentencing enhancement under Section 186.22(b)(1) was not objectively unreasonable.
In sum, Petitioner has failed to show that, when the statute is interpreted in accordance with state law and the evidence is viewed in the light most favorable to the prosecution, no rational trier of fact could have found that Petitioner committed the crimes in question for the benefit of a criminal street gang and with the specific intent to promote, further, or assist in criminal conduct by a gang member. See Emery, 643 F.3d at 1213. Accordingly, the state court's rejection of Petitioner's claim cannot be said to be contrary to, or an unreasonable application of, the Jackson standard, and Ground Two of the Petition must be denied.
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.