Alberto Francisco BRICENO, Petitioner-Appellant, v. A.K. SCRIBNER, Warden, Respondent-Appellee.
No. 07-55665.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Aug. 8, 2008. Filed Feb. 23, 2009.
555 F.3d 1069
In cases where the underlying drug offense is possession with intent to distribute, the government has provided adequate evidence of a nexus between the firearm and the drug crime by showing that the firearm is in the same room and “within easy reach” of a “substantial quantity of drugs and drug trafficking paraphernalia.” Krouse, 370 F.3d at 968; see also Lopez, 477 F.3d at 1115 (“Because Lopez‘s drug crime was possession of cocaine with intent to distribute, evidence establishing the ready accessibility of the gun while he was in possession of a distributable amount of cocaine satisfied the ‘in furtherance’ requirement.“). In this case, while the quantity of drugs is smaller and the circumstances establishing a nexus are not as clear as those in Krouse or Lopez, we cannot say that “[no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781.
The gun at issue in this case was found by the police only a few feet from evidence that the jury found sufficient to establish Norwood‘s possession of cocaine with intent to distribute conviction. Specifically, the police found a digital scale, on which drug residue and Norwood‘s fingerprints were found, and 7.7 grams of cocaine packaged in two “eight ball” sizes, which both parties stipulated is a commercial amount that could be sold on the street. In addition, the police first discovered Norwood lying on top of the mattress where the gun was hidden, with over $2500 dollars in his pocket, along with a smaller amount of cocaine, which witnesses testified could still be considered a commercial amount. Given this evidence, we affirm the district court‘s ruling that “a reasonable jury could infer that [Norwood] possessed the firearm in furtherance of the trafficking of crack, specifically to protect himself and his business.” Order Den. Mot. For J. of Acquittal, United States v. Norwood, No. 06-091, (E.D.Wash.2007).
AFFIRMED.
Ronald A. Jakob, Deputy Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Gary W. Schons, Senior Assistant Attorney General (Edmund G. Brown, Jr., Attorney General for the State of California), San Diego, CA, for the respondent-appellee.
Before: ROGER J. MINER,* KIM MCLANE WARDLAW, and MARSHA S. BERZON, Circuit Judges.
Opinion by Judge MINER; Partial Concurrence and Partial Dissent as to Part III by Judge WARDLAW.
MINER, Circuit Judge:
I. Introduction
Alberto Francisco Briceno appeals from a judgment of the United States District Court for the Central District of California (Morrow, J.) denying his petition for a writ of habeas corpus. Briceno was convicted, following a jury trial, of four counts of second degree robbery and four counts of street terrorism in the Superior Court of Orange County. The jury also found that the robberies were committed for the benefit of a criminal street gang. Briceno pursued various challenges to his convictions in the California state courts and in the District Court. Ultimately, we granted a certificate of appealability as to two issues that are now before us to resolve: “(1) whether there is sufficient evidence to support the gang enhancement convictions for each robbery; and (2) whether the trial court erred by allowing the prosecution‘s expert to testify that the gang enhancement allegations were true.” See
II. Of the Crimes
Briceno and Evaristo Landin robbed four individuals in Orange County on Christmas Day 2000 in what the California Court of Appeal aptly characterized as a “grinchly crime wave.” People v. Briceno, 109 Cal.App.4th 1330, 135 Cal.Rptr.2d 912, 913 (2003), rev‘d in part on other grounds, 34 Cal.4th 451, 20 Cal.Rptr.3d 418, 99 P.3d 1007 (2004). The two gained little from their criminal forays. Both were members of the Hard Times Street Gang, and Landin‘s forearms were marked with the gang‘s tattoos. Their first victim was Ross Lambert, whom they held at gunpoint outside a bar in Costa Mesa at about 1:00 A.M. Lambert gave them the $10.50 he had in his pocket, and he felt a sharp object placed against his neck when they demanded more. Lambert apparently had no more to give, and the two thieves drove away in a Cadillac, whose license plate Lambert recorded before contacting the police.
About an hour and a half later, Richard Jess noticed a parked sedan with its headlights on as he was walking through a Comfort Inn parking lot. Landin approached him from the rear, put his arm around Jess‘s neck, stuck a gun in his ribs, and demanded his valuables. Landin was able to extricate only $2.00 from Jess. During this time, the sedan was mоving forward slowly in an adjoining parking lot. After the encounter, Jess saw Landin, who* sitting by designation.
Within the hour, Judy Yonamine arrived at her residence in Garden Grove. As she unloaded some items from the trunk of her car, another car pulled up and stopped, with its lights on and its engine still running. Landin emerged from the front passenger side and asked for money. When Yonamine said she had none, Landin produced a gun and took her wallet, which contained $25.00. Landin then ran back to the car, which sped away. Soon thereafter, Landin approached Jesus Mendoza, who was unloading his van in Anaheim. Mendoza gave up his wallet and $18.00 in cash when Landin pointed a pistol at him.
Landin was in the passenger seat and Briceno was behind the wheel when Anaheim Officer Raymond Drabek stopped the Cadillac sedan in which they were traveling as it made a U-turn on Harbor Boulevard near Disneyland. The car and license plate number matched the description provided by the robbery victims. Discovered under the front passenger seat were $300.00 in cash and a pellet gun. A beanie cap identified by one of the victims as worn by one of the perpetrators was found in the Cadillac, and small amounts of cash were found on both Landin and Briceno.
III. Of the Trial
At trial in the Superior Court, the prosecution sought to persuade the jury that the four robberies were committed for the benefit of, at the direction of, or in association with a criminal street gang, in order to call forth the enhanced penalties attendant to such a finding under California law. See
It is stipulated between the People and Defendant Briceno that Hard Times was a criminal street gang within the meaning of
Penal Code Section 186.22 at all times relevant to this case.It is further stipulated that on 12/25/2[ ]000, that Defendant Briceno actively participated in the Hard Times criminal street gang with knowledge that the Hard Times members have engaged in a pattern of criminal gang activity, as defined in
Penal Code Section 186.22 . It is specifically not stipulated that Defendant Briceno aided and abetted another gang member in committing the crime of [robbery] on 12/25/2[ ]000.
Following the reading of the Stipulation, the court instructed the jury that the Stipulation applied to Briceno only and not to Landin, who was charged as а co-defendant and with whom Briceno was being jointly tried.
In support of the criminal street gang enhancement, the prosecution also presented the trial testimony of Peter Vi, who was employed in the position of Gang Investigator by the City of Garden Grove Police Department. Vi related his training and experience in the investigation of criminal street gangs and was offered as an expert witness by the prosecution. He testified that he had made several hundred arrests related to gang membership and described the structure, operations, culture, and criminal activities of gangs generally.
Vi related the manner in which members are inducted into gangs, the conduct required of gang members, and their duties of loyalty to the gang. He also described the symbols of gang membership, including tattoos and “monikers” (i.e., names given to gang members by other members). With regard to the role of respect in gang culture, Vi testified:
Vi testified that he was familiar with the activities of the Hard Times street gang, having been assigned to patrol its area of operations. He described Hard Times as a “territorial street gang” and as a “criminal street gang” that dominated a three-block neighborhood in Garden Grove. Vi estimated the total membership of the gang as approximately two hundred. According to Vi, gang members usually commit crimes with other gang members, and robbery is considered a status-enhancing act. The following question was put to Vi at trial:
Now, if I were to ask you to assume that we had two Hard Times criminal street gang members, one driving, one in the passenger seat, drive to Costa Mesa on December 25th of the year 2000, and then at a little after 1:00 a passenger got out, pointed a pellet gun at one and robbed him of money and got back into the car and the two Hard Time members drove off, and then at a little after 2:30 A.M., in Anaheim, same two individuals with the same person driving approached a second person, passenger getting out, pulling the pellet gun and, once again, robbing an individual of money, getting back in the car and driving off.
And then assuming further that around 3:30 that same morning, that a third individual is approached in an alley off Mallul Street in Anaheim, once again, same person driving, passenger gets out, points the pellet gun at somebody and takes money from him, and then a few minutes later, or around the same time, right around 3:30 in Garden Grove on Bayport, the same two individuals with the same person driving, the passenger gets out of the car, goes up to an individual, displays the gun in some manner and take properties from her, and then gets back into the car and drives off, and then the same two individuals are stopped five to ten minutes later at Katella and Anaheim.
Do you have an opinion as to whether or not the crimes of [robbery], each one of those four crimes were committed for the benefit of, at the direction of, or in association with the criminal street gang Hard Times, and with intent to promote, further and assist criminal conduct by members of the Hard Times gang?
Vi‘s response, following an overruled objection, was as follows:
My opinion is that, based on the scenario you gave me, the two Hard Timers, the crimes they were involved in benefit the gang itself, the action that they have done to glorify the gang.
. . . .
Not only do they glorify the gang but personally they increase the status of those two in the gang itself, because, one, they commit this crime, the possibility of them involving other crimes are or being asked to do other crimes in the gang—
. . . .
It gives them the opportunity to participate in other crimes if other Hard Timers solicit them to assist.
Subsequently, Vi was asked whether it would change his opinion to know that the robberies were committed to buy Christmas presents. He said it would not, because the status of the individuals would nevertheless be increased within the gang. On cross-examination, when asked about a robbery involving only a small amount of money, he responded that “it would glorify
On July 13, 2001, the jury convicted Briceno of four counts of second degree robbery, in violation of
The trial court found separately that Briceno had committed two prior serious or violent felonies within the meaning of the California Three Strikes Law and had previously served a prison term. Taking all factors into account and staying the imposition of the sentence for the street terrorism convictions, the court imposed upon Briceno an indeterminate sentence of 27 years to life and a determinate sentence of 23 years and 4 months. Included in the sentences were enhancements based on the criminal street gang findings.
IV. Of the State Court Appeals and the Habeas Petition
Briceno appealed his conviction to the California Court of Appeal. On June 20, 2003, the Court of Appeal issued an opinion in which it held that the criminal street gang enhancements provided under
Thereafter, Briceno filed a petition for review in the California Supreme Court, contending that the admission in evidence of the gang expert‘s opinion testimony violated his jury trial and due process rights. He also contended that there was insufficient evidence to support one of his robbеry convictions and the gang enhancements. The State of California also petitioned the California Supreme Court for review, asserting that the Court of Appeal erred in finding that felonies with gang enhancement are not serious felonies under the California Three Strikes Law. On September 24, 2003, the Supreme Court granted the State‘s petition only and, on November 4, 2004, issued its opinion in the case. People v. Briceno, 34 Cal.4th 451, 20 Cal.Rptr.3d 418, 99 P.3d 1007 (2004). In the opinion, the court determined that felonies with gang enhancements are serious felonies within the meaning of California‘s Three Strikes Law. Id. at 1014-15; see also
On May 16, 2005, Briceno filed a petition for a writ of habeas corpus pursuant to
Petitioner was denied due process and a trial by jury as a result of the gang expert‘s improper opinion testimony. . . .
Petitioner was denied due process because there was insufficient evidence to support the robbеry conviction on count 4 and the gang enhancements on Counts 1-4 beyond a reasonable doubt. . . .
Petitioner was denied due process because there was insufficient evidence that his 1998 conviction was a prior felony conviction for purposes of the 3 strikes law and the enhancement under Pen.Code sec 667(a).
On May 11, 2006, Magistrate Judge Lum issued a comprehensive Report and Recommendation recommending denial of the petition in all respects. The District Judge adopted the Report and Recommendation over Briceno‘s objections in an Order dated July 19, 2006, and directed that judgment be entered dismissing the petition with prejudice. On May 11, 2007, the District Court issued an Order denying an application filed by Briceno for a certificate of appealability, finding that Briceno “has not made a substantial showing of the denial of a constitutional right, as is required to support the issuance of a Certificate of Appealability.” An application for a certificate thereafter made to this court was granted by Order filed on August 2, 2007, with respect to the issues set forth in Part I above.
ANALYSIS
I. Of the Standards to be Applied
We are constrained to undertake a de novo review of a district court‘s decision to deny a petition for habeas cоrpus. See Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.2004). Habeas relief cannot be granted to a state prisoner “with respect to any claim that was adjudicated on the merits in State court . . . unless the adjudication of the claim . . . resulted in a decision that was contrary to, or involved an unreason-able application of, clearly established Federal law, as determined by the Supreme Court of the United States;” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
The Supreme Court has observed that
II. Of the Challenge to the Expert Testimony
Briceno contends that the state appellate court, in affirming the state trial court, unreasonably applied established federal law by allowing expert testimony
Briceno claims that Vi‘s “testimony should have been excluded because it was based on facts insufficient to support an opinion on the issue, constituted improper opinion on guilt, and essentially directed the jury to find the gang enhancements true.” In holding that the trial court did not abuse its discretion in determining that Vi‘s expert opinion would assist the jury in deciding whether the prosecution had proved the gang enhancement allegations, the appellate court referred to California precedent:
As People v. Olguin (1994) 31 Cal.App.4th 1355, 37 Cal.Rptr.2d 596[,] explains, “[t]he requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates. Such evidence is admissible even though it encompasses the ultimate issue in the case.”
People v. Briceno, Nos. G029525, G029607, 2003 WL 1710927, at *2 (Cal.Ct.App. Mar.28, 2003) (internal citations omitted). Indeed,
In any event, evidence erroneously admitted warrants habeas relief only when it results in the denial of a fundamentally fair trial in violation of the right to due process. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Federal habeas courts do not review questions of state evidentiary law. Id. Our habeas powers do not allow us to vacate a conviction “based on a belief that the trial judge incorrectly interpreted the California Evidence Code in ruling” on the admissibility of evidence. Id. at 72, 112 S.Ct. 475. With regard to expert testimony, we recently noted that we have found no cases “support[ing] the general proposition that the Constitution is violated by the admission of expert testimony concerning an ultimate issue to be resolved by the trier of fact.” Moses v. Payne, 543 F.3d 1090, 1105 (9th Cir.2008). “Although [a] witness is not permitted to give a direct opinion about the defendant‘s guilt or innocence . . . an expert may otherwise testify regarding even an ultimate issue to be resolved by the trier of fact.‘” Id. at 1106 (quoting United States v. Lockett, 919 F.2d 585, 590 (9th Cir.1990) (alteration in original)). We found this “not surprising,” id.,
The thrust of Briceno‘s evidentiary challenge is that Vi‘s testimony that the hypothetical robberies would have been gang-related should have been excluded as pertaining to an ultimate issue for the jury. Our recent decision in Moses forecloses such a challenge, as it holds that there is no clearly established constitutional right to be free of an expert opinion on an ultimate issue. See Moses, 543 F.3d at 1105-06. Accordingly, the admission of the opinion testimony of Peter Vi cannot be said to be contrary to, or an unreasonable application of, Supreme Court precedent.
III. Of the Sufficiency of the Evidence to Support the Gang Enhancement Penalties
Briceno also argues that the evidence at trial was insufficient to support the enhancements, as there was not sufficient evidence to sustain the conclusion that the robberies were committed with the specific intent to benefit a criminal street gang. We agree.
To prevail on an insufficiency of evidence claim, a habeas petitioner must show that “upon the record evidence adduced at the trial[,] no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). An additional layer of deference is added to this standard by
To warrant a gang enhancement, California law requires the prosecutor to prove two things. First, the prosecutor must demonstrate that the defendant committed a felony “for the benefit of, at the direction of, or in association with [a] criminal street gang.”
The California Court of Appeal limited its analysis of the sufficiency of the evidence supporting the criminal street gang enhancements to the following:
Defendants note there was evidence to show the crimes were committed for personal gain (money to buy Christmas gifts) rather than any gang-related purpose. The problem with this argument is that[it] ignores Vi‘s expert testimony explaining how the commission of these crimes would enhance the reputation not only of the gang itself but of the individual participants as well. Based on this evidence, the jurors could reasonably have found the gang enhancement allegations were true. It was for the jurors to resolve any credibility issues or conflicts in the evidence. We cannot second-guess their decision on appeal.
Briceno, 2003 WL 1710927, at *3. Under our case law, this analysis represents an unreasonable application of the Jackson standard, for several reasons.
First, Vi‘s testimony did not establish Briceno‘s specific intent in committing the robberies, nor could it. Vi‘s testimony dealt almost exclusively in hypotheticals; he did not provide any direct or circum-
Second, the California Court of Appeal‘s analysis runs afoul of this court‘s decision in Garcia v. Carey. In Garcia, the defendant, a known gang member, robbed the victim “in an area known to be in the heart of the gang‘s ‘turf.‘” 395 F.3d at 1103. Although a police expert testified that the defendant‘s gang was “turf-oriented,” we held that there was insufficient evidence to warrant an enhanced sentence under
The State urges us to disregard Garcia, citing two California appellate court decisions holding that Garcia misinterpreted California law. See People v. Hill, 142 Cal.App.4th 770, 47 Cal.Rptr.3d 875, 877 (2006); People v. Romero, 140 Cal.App.4th 15, 43 Cal.Rptr.3d 862, 865 (2006). Romero and Hill both held that “the specific intent element is satisfied if [the defendant] had the specific intent to ‘promote,
Although we are ordinarily bound by a state‘s highest court‘s interpretation of its own statute, see Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir.1986), none of the post-Garcia cases cited by the State were decided by the California Supreme Court, which has yet to address this issue. This panel would therefore normally be bound by the prior panel‘s decision in Garcia, which expressly rejected the same interpretation of
To the extent that the California Supreme Court has provided an authoritative interpretation of
Moreover, as this court previously recognized in Garcia, the California Supreme Court‘s analysis in Gardeley highlights the type of evidence necessary to sustain gang enhancements under
This theme also runs throughout the other California cases cited by the State, including Romero and Hill. In each case, a jury could reasonably conclude that the defendant committed the crime with the specific intent to benefit the gang, as the defendant either committed the crime to protect gang “turf” or brandished gang signs or a gang moniker during the attack. See, e.g., People v. Villalobos, 145 Cal.App.4th 310, 51 Cal.Rptr.3d 678, 681 (2007) (crime committed on gang turf); Hill, 47 Cal.Rptr.3d at 876 (defendant announced gang membership); Romero, 43 Cal.Rptr.3d at 864-65 (retaliatory shooting on a rival gang‘s turf).4 Here, by contrast, such circumstantial evidence of intent is wholly lacking: the individual robberies werе not committed in Hard Times gang territory or on the “turf” of a rival gang, neither Briceno nor Landin made their gang membership known to the robbery victims, and, indeed, there is no evidence whatsoever of any connection between the gang and the robberies.5
We conclude that on the facts of this casе, the California Supreme Court would not hold that there was sufficient evidence to establish a “specific intent to promote, further, or assist in any criminal conduct by gang members,” as required by statute. See
We disagree. In the state proceedings, both the State and Briceno filed petitions for review with the California Supreme Court. The California Supreme Court6 granted only the State‘s petition for review. That petition related to a separate legal question concerning California‘s Three Strikes law. See People v. Briceno, 5 Cal.Rptr.3d 32, 77 P.3d 3 (Cal.2003); Petition for Review, No. S117641, available at 2003 WL 23015606, at *2 (filed July 28, 2003). None of the justices voted to grant Briceno‘s petition for review as to the question of whether “the commission of a crime with a fellow gang member, without more, [is] sufficient to prove the crimes were gang related. . . .” See Briceno, 5 Cal.Rptr.3d 32, 77 P.3d at 3; Petition for Review, No. S117641, available at 2003 WL 23015605, at *2. The briefing in the case further demonstrates that the gang enhancements were not before the California Supreme Court, as the parties addressed only the Three Strikes issue. Concluding its opinion on that issue, the court wrote: “In all other respects, the judgment [of Briceno‘s conviction] is affirmed.” Briceno, 20 Cal.Rptr.3d 418, 99 P.3d at 1015. Contrary to the reasoning of the dissent, it is unlikely that the California Supreme Court, in a single boilerplate sentence at the end of its opinion on an issue that it decided to review at the behest of one party, intended to express an authoritative view on an issue presented by another party that it had in fact expressly decided not to review. See In re KF Dairies, Inc. & Affiliates, 224 F.3d 922, 925 n. 3 (9th Cir.2000); cf. Trope v. Katz, 11 Cal.4th 274, 45 Cal.Rptr.2d 241, 902 P.2d 259, 268 n. 1 (1995) (“It is well established that our refusal to grant a hearing in a particular case is to be given no weight insofar as it might be deemed that we have acquiesced in the law as enunciated in a published opinion of a Court of Appeal when such opinion is in conflict with the law stated by this
We emphasize that Garcia does not displace the Jackson standard as the proper lens with which we review state-court decisions. This court‘s decision in Garcia remains persuasive because it analyzed the only California Supreme Court decision addressing
We therefore hold that the appellate court‘s conclusion in this case represents an unreasonable application of the Jackson standard, and we grant Briceno‘s petition for a writ of habeas corpus as to the sufficiency of the evidence.
CONCLUSION
In view of the foregoing, we affirm in part, reverse in part, and remand for the District Court to grant the habeas petition as to the imposition of the criminal street gang sentence enhancements.
AFFIRMED in part; REVERSED in part; and REMANDED.
Costs are awarded to Petitioner Briceno.
WARDLAW, Circuit Judge, concurring in part and dissenting in part:
I concur in the opinion, except as to Part III of the analysis. As to Part III, I must respectfully dissent, principally due to the standards we must apply on habeas review.
In the words of the Californiа Court of Appeal, Alberto Briceno and Evaristo Landin “launched a grinchly crime wave on Christmas Day 2000,” and were ultimately convicted of four armed robberies, each committed within a three-hour time span that day. Although there was evidence at trial that the crimes were committed for personal gain (stealing money to buy Christmas gifts), the jury found that a sentencing enhancement was warranted based on the gang-related nature of the crimes. Briceno‘s sentence was enhanced under California‘s gang enhancement statute, which provides an enhancement for “any person who is convicted of a felony committed [(1)] for the benefit of, at the direction of, or in association with any criminal street gang, [ (2) ] with the specific intent to promote, further, or assist in any criminal conduct by gang members.”
Our task is to decide whether the state court‘s adjudication entailed an unreasonable application of Jackson v. Virginia, which permits reversal only when “upon the record evidence adduced at the trial[,] no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see
some way.“). Thus, the focus of our disagreement is whether sufficient evidence supports the second, specific intent, element of the statute.
the state would decide differently.” Owen ex rel. Owen v. United States, 713 F.2d 1461, 1464 (9th Cir.1983) (internal quotation marks omitted).
The three directly relevant decisions by the California Court of Appeal hold that to prove “specific intent to . . . assist in any criminal conduct by gang members,” it is sufficient to demonstrate that the “defendant intended to commit [the crimes], that he intended tо commit them in association with [his accomplices], and that he knew that[his accomplices] were members of his gang.” Morales, 5 Cal.Rptr.3d at 632; see also People v. Villalobos, 145 Cal.App.4th 310, 51 Cal.Rptr.3d 678, 687 (2007) (“Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.“); People v. Romero, 140 Cal.App.4th 15, 43 Cal.Rptr.3d 862, 866 (2006) (“There was ample evidence that appellant intended to commit a crime, that he intended to help[his accomplice] commit a crime, and that he knew[his accomplice] was a member of his gang.“);3 cf. People v. Hill, 142 Cal.
the “defendant intended to protect gang turf or facilitate gang operations.” See Maj. Op. at 1081 & n. 5 (citing Villalobos, 51 Cal.Rptr.3d at 681 (crime committed on gang turf); Romero, 43 Cal.Rptr.3d at 864-65 (retaliatory shooting on a rival gang‘s turf)). The presence of gang-related indicia may be relevant to the determination of whether the crime was committed “for the benefit of, at the direction of, or in association with” the gang. There is absolutely no indication in either opinion, however, that the Court of Appeal relied on the geographic location of the crime or the presence of gang-related indicia to support its finding of specific intent. See Villalobos, 51 Cal.Rptr.3d at 686-87; Romero, 43 Cal.Rptr.3d at 865-66. Here, only the specific intent element of the statute is at issue. Therefore, the lack of gang-related indicia is not dispositive. Further, the majority concedes that Morales “did not in-
volve a specific indicia of gang-related criminal conduct,” but argues that Briceno‘s case falls into the “frolic and detour” exception. See Maj. Op. at 1081 n. 4 (citing Morales, 5 Cal.Rptr.3d at 632 (“[I]t is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang.“)). This exception, however, also applies only to the first prong of the statute. Morales suggested only that it is possible that two gang members committing a crime together are not necessarily acting “in association” with a gang. The “frolic and detour” exception, as articulated in Morales, cannot underlie a finding that a defendant lacked specific intent to “assist in any criminal conduct by gang members.”
there was sufficient evidence to support the gang enhancement, that reliance was unnecessary to its decision.5
The reasoning in Morales, Villalobos, and Romero controls our decision because there is no “convincing evidence that the highest court of the state would decide differently.” Owen, 713 F.2d at 1464 (internal quotation marks omitted). The majority, however, declines to follow these decisions. Relying on an erroneous interpretation of People v. Gardeley, 14 Cal.4th 605, 59 Cal.Rptr.2d 356, 927 P.2d 713 (1997), the one California Supreme Court pronouncemеnt on gang enhancements, the majority concludes that the California Supreme Court would decide the specific intent question differently from the Court of Appeal. In Gardeley, the Supreme Court found sufficient evidence to support the sentencing enhancement when multiple gang members acting together violently assaulted an intruder on their turf in order “to frighten the residents of an area where the gang members sell drugs, thereby securing the gang‘s drug-dealing stronghold.” Id. at 722. In the expert‘s opinion,
committing the crime, the defendant acted with specific intent to further that activity. 47 Cal.Rptr.3d at 877. Because Hill concerns the commission of a crime by one gang member acting alone, it is least relevant here, where two gang members acted in concert. Therefore, we do not need to decide whether the Supreme Court would agree that the commission of a crime by one gang member acting alone, with the attendant mention of the gang association to the victim, is sufficient to warrant application of the gang enhancement statute.
Further, though intimidation of intruders to maintain turf dominance may be a “classic” example of gang-related activity, there is no indication that gang-related activities occurring outside the turf cannot serve as a basis for enhancement. “Classic” gang-related activity is not “necessary to sustain gang enhancements,” contrary to the majority‘s contention. See Maj. Op. at 1080-81. Thus, Gardeley does not present “convincing evidence” that would allow us to reject the reasoning of the California appellate courts. Owen, 713 F.2d at 1464.
In concluding that “on the facts of this case, the California Supreme Court would not hold that there was sufficient evidence to establish a ‘specific intent to promote, further, оr assist in any criminal conduct by gang members,‘” Maj. Op. at 1081, the majority ignores that the California Supreme Court has already considered and implicitly rejected Briceno‘s argument regarding insufficiency of the evidence to support the gang enhancement. After the Court of Appeal found that the record evidence was sufficient to support the gang enhancement, Briceno, 2003 WL 1710927, at *3, Briceno petitioned for review of that decision to the California Supreme Court, Defendant‘s Petition for Review, Briceno, 5 Cal.Rptr.3d 32, 77 P.3d 3 (No. S117641), 2003 WL 23015605, at *2. The Supreme Court rejected Briceno‘s petition, but granted the State‘s cross-petition on a separate and unrelated issue. State‘s Petition for Review, Briceno, 5 Cal.Rptr.3d 32, 77 P.3d 3 (No. S117641), 2003 WL 23015606. It reversed the Court of Appeal only with respect to its finding that Briceno did not “suffer[] a prior conviction for a serious felony.” People v. Briceno, 34 Cal.4th 451, 20 Cal.Rptr.3d 418, 99 P.3d 1007, 1008 (2004). “In all other respects, [the Supreme Court] affirm[ed] the judgment.” Id. at 1009.
The Supreme Court‘s summary affirmance has limited, but—for the purposes of this analysis—sufficient, precedential value. The summary affirmance of the judgment indicates, at most, agreement with the “precise issues framed and necessarily decided in the case below.” Hoffman v. State Bar of Cal., 113 Cal.App.4th 630, 6 Cal.Rptr.3d 592, 604 n. 10 (2003); see also Anderson v. Celebrezze, 460 U.S. 780, 784 n. 5, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) (“We have often recognized that the preсedential effect of a summary affirmance extends no further than the precise issues presented and necessarily decided by those actions. A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment.” (internal quotation marks omitted)). Thus, though “summary affirmances” are “a rather slender reed on which to rest [a] decision,” Anderson, 460 U.S. at 784 n. 5, 103 S.Ct. 1564 (internal quotation marks omitted), even this limited extent of agreement demonstrates that the Supreme Court would find that the ele-
Further, the denial of Briceno‘s petition by the Supreme Court itself suggests that the Supreme Court would not disagree with the Court of Appeal‘s conclusion. An “order [denying review of a] decision of the District Court of Appeal may be taken as an approval of the conclusion there reached, but not necessarily of all of the reasoning contained in that opinion.” DiGenova v. State Bd. of Ed., 57 Cal.2d 167, 18 Cal.Rptr. 369, 367 P.2d 865, 871 (1962) (emphasis added) (internal quotation marks omitted). Again, this limited approval is sufficient for our purposes—establishing that the Supreme Court would agree with the Court of Appeal‘s decision that record evidence in Briceno‘s case sufficiently supports the two elemеnts required for the enhancement.
The majority correctly points out that the Supreme Court‘s “refusal to grant a hearing in a particular case is to be given no weight insofar as it might be deemed that [it has] acquiesced in the law as enunciated in a published opinion of a Court of Appeal when such opinion is in conflict with the law as stated by [the Supreme C]ourt.” Trope v. Katz, 11 Cal.4th 274, 45 Cal.Rptr.2d 241, 902 P.2d 259, 268 n. 1 (1995) (emphasis and internal quotation marks omitted). I agree. No party should attempt to rely on the Court of Appeal‘s interpretation of the law in its unpublished opinion to the extent it is contradicted by a published holding of the Supreme Court. The Supreme Court does not have to agree with the Court of Appeal‘s interpretation of the statute, however. All we must determine—and the denial of review establishes this and no more—is that the Supreme Court agreed with the Court of Appeal‘s conclusion that sufficient record evidence supports the enhancement as to Briceno.6 The Supreme Court‘s agreement with the Court of Appeal in this case, therefore, presents “convincing evidence” that it would not disagree with the decisions of the California appellate courts.
The majority also purports to fоllow a Ninth Circuit decision that finds insufficient evidence for a gang enhancement when “there was no testimony or other evidence to support a rational inference that the robbery . . . was committed with the intent to further other criminal activity” of the gang. Garcia v. Carey, 395 F.3d 1099, 1104 (9th Cir.2005). This reliance is unjustified for three reasons.
First, in the habeas context, it is inappropriate to hold, as the majority does, that “the California Court of Appeal‘s analysis runs afoul of this court‘s decision in Garcia v. Carey.” Maj. Op. at 1079. The California state court was not bound by Garcia in its interpretation of section 186.22(b); nor may we analyze the state court‘s opinion for compliance therewith. We review the state court‘s decision only to determine whether it reasonably applied “clearly established Federal law,” defined as “the governing legal principle or principles set forth by the Supreme Court at the
Second, we could follow Garcia only if faced with “convincing evidence” that allows us to set aside the contrary appellate court decisions. Owen, 713 F.2d at 1464. As explained above, we are not. In Owen, we were presented with a previous Ninth Circuit decision, Commercial Union Insurance Co. v. Ford Motor Co., 640 F.2d 210 (9th Cir.1981), which interpreted California Civil Procedure Code section 877. Subsequent California Court of Appeal‘s decisions articulated a different interpretation. We stated that “[o]ur interpretation in Commercial Union was only binding in the absence of any subsequent indication from the California courts that our interpretation was incorrect.” Owen, 713 F.2d at 1464. Here, California courts could not have indicated more clearly that our interpretation of section 186.22(b) was incorrect. Garcia has been explicitly disapproved in two subsequent California Court of Appeal decisions. See Romero, 43 Cal.Rptr.3d at 865 (declining to follow Garcia because “[b]y its plain language, the statute requires a showing of specific intent to promote, further, or assist in ‘any criminаl conduct by gang members,’ rather than other criminal conduct“); Hill, 47 Cal.Rptr.3d at 877 (same). As explained above, there is no “convincing evidence” that might lead us to disregard these pronouncements; therefore, we cannot deem Garcia controlling.
Third, Garcia is not directly applicable because Garcia did not address the situation here: two gang members committing a crime together. In Garcia, the defendant committed a liquor store robbery with accomplices; it is unclear whether the accomplices were fellow gang members. The State‘s theory of specific intent in that case was the fairly vague “facilitation [of] other gang-related criminal operations within El Monte,” Garcia, 395 F.3d at 1103, a theory that could rest only on the statutory prohibition of “promot[ing] and further[ing] . . . any criminal conduct by gang members,”
The majority disregards the clear holding of the California appellate courts that a criminal act intentionally committed with another known gang member demonstrates specific intent to assist in criminal conduct by gang members—a holding that sustains the state court‘s finding of sufficient evidence to support the gang en-
Jorge Arturo SOTO-OLARTE; Maria Jesus Esteves-La Torre, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
No. 06-71822.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 9, 2008. Filed Feb. 23, 2009.