643 F.3d 1210
9th Cir.2011Background
- Emery convicted in state court of attempted second-degree robbery and first-degree murder of Henry Chow, with a gang-related special circumstance under §190.2(a)(22) and firearm enhancements under §12022.53.
- Jury found gang enhancements under §186.22(b)(1) and firearm enhancements under §12022.53(d)-(e)(1), premised on crime being committed for the benefit of or in association with a criminal street gang and with specific intent to promote or assist gang activity.
- California Courts rejected Emery’s sufficiency challenges; CA Supreme Court denied review; Emery challenged the federal sufficiency of the evidence in a habeas petition.
- District court denied habeas relief; Ninth Circuit granted COA on sufficiency of the evidence as to the gang enhancement.
- Ambiguity over §186.22(b)(1) interpretation was resolved by Albillar, which held the specific intent requirement applies to any criminal conduct by gang members, without requiring it to be apart from the charged offense.
- Court affirms district court, ruling there was sufficient evidence to support both the first and second prongs under Albillar.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for 186.22(b)(1) first prong | Emery contends no sufficient evidence of gang-related crime | Albillar supports gang-related purpose through expert and circumstances | Evidence adequate to show gang association |
| Interpretation of 186.22(b)(1) specific intent requirement | Requires specific intent to promote other gang activity beyond the offense | Albillar rejects any 'apart from' requirement | Albillar controls; no extra-apart-from requirement |
| Sufficiency of evidence for 186.22(b)(1) second prong | Testimony shows no specific intent to aid gang members | Morales and Alvarez evidence support intent to assist gang members | Sufficient evidence to infer specific intent to promote/assist gang conduct |
Key Cases Cited
- People v. Albillar, 51 Cal.4th 47 (Cal. 2010) (specific intent to promote, further, or assist applies to any criminal conduct by gang members)
- People v. Hill, 142 Cal.App.4th 770 (Cal.App.4th 2006) (interpretation of 186.22(b)(1) context by California courts)
- People v. Romero, 140 Cal.App.4th 15 (Cal.App.4th 2006) (interpretation of 186.22(b)(1) and gang enhancements)
- Briceno v. Scribner, 555 F.3d 1069 (9th Cir.2009) (claims 186.22(b)(1) requires intent to promote other gang activity)
- Garcia v. Carey, 395 F.3d 1099 (9th Cir.2005) (federal view on section 186.22(b)(1) interpretations)