Opinion
Case No. CV 15-8158-JPR
06-15-2016
GUSTAVO JAVIER TAMAYO, Petitioner, v. W.L. MONTGOMERY, Warden, Respondent.
MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
PROCEEDINGS
On October 16, 2015, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody. He also consented to having a U.S. Magistrate Judge conduct all further proceedings in his case, including entering final judgment. On December 29, 2015, Respondent filed an Answer and Memorandum of Points and Authorities and consented to proceed before a Magistrate Judge. Petitioner did not file a reply.
For the reasons discussed below, the Court denies the Petition and dismisses this action with prejudice.
PETITIONER'S CLAIM
Insufficient evidence supported the gang enhancement. (Pet. at 5-7.)
Because the pages of the Petition are not sequentially numbered, the Court uses the pagination from its Case Management/Electronic Case Filing system.
BACKGROUND
On July 16, 2012, following a joint trial with codefendant Rickey Ryan Williams, Petitioner was convicted by a Los Angeles County Superior Court jury of five counts of robbery, one count of attempted robbery, and one count of conspiracy to commit robbery. (Lodged Doc. 1, 2 Clerk's Tr. at 444-59, 462-67, 491-93; Lodged Doc. 2, 4 Rep.'s Tr. at 630-35.) The jury found true various firearm and gang enhancements. (Lodged Doc. 1, 2 Clerk's Tr. at 444-59, 462-67, 491-93; Lodged Doc. 2, 4 Rep.'s Tr. at 630-35.) On September 6, 2012, the trial court sentenced Petitioner to 49 years 8 months in state prison. (Lodged Doc. 1, 2 Clerk's Tr. at 485-93; Lodged Doc. 2, 4 Rep.'s Tr. at 648-51.)
The information named two other defendants, Emmanuel Flores and Alex Salcedo (Lodged Doc. 1, 2 Clerk's Tr. at 362), but they were not tried with Petitioner and Williams.
Petitioner appealed, raising the claim in the Petition. (Lodged Doc. 4.) On July 30, 2014, the court of appeal directed the trial court to amend the abstract of judgment to reduce a sentencing enhancement on the attempted-robbery conviction from three years four months to one year eight months. (Lodged Doc. 7 at 9-10.) The court of appeal otherwise affirmed the judgment. (Id. at 10.) Petitioner filed a petition for review (Lodged Doc. 8), which the California Supreme Court summarily denied on October 15, 2014 (Lodged Doc. 9). Petitioner did not file any state habeas petition. (See Pet. at 3.)
SUMMARY OF THE EVIDENCE
Because Petitioner challenges the sufficiency of the evidence, the Court has independently reviewed the state-court record. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). Based on that review, the Court finds that the following statement of facts from the California Court of Appeal opinion fairly and accurately summarizes the evidence, except as indicated.
A. Crimes
On Independence Day, July 4, 2010, [Petitioner] and Alex Salcedo, another Inglewood 13 member, arrived at the back door of a Ross Dress for Less store (Ross) on South Alvarado in Los Angeles. [Petitioner] brandished a gun at the store's assistant manager and forced her to take him to the store's cash office. [Petitioner] and Salcedo took between $40,000 and $50,000 from the safe, bound the assistant manager with plastic ties, and left the store.
Two months later, on Labor Day, September 6, 2010, at 4:43 p.m., [Petitioner] and an unidentified associate entered a Ross store on South Figueroa in Los Angeles wearing Domino's Pizza uniforms and carrying pizza bags. They attempted to gain access to the back of the store, ostensibly to set up pizzas for the employees, but when the manager denied them access they left.
About 15 minutes later, Williams and an unidentified older associate arrived at the Ross store on Hollywood
Boulevard in Los Angeles wearing Domino's Pizza uniforms and carrying pizza bags. They told assistant manager Monica Pena they were delivering pizza ordered by the Ross corporate office to recognize the employees for working on the holiday. The older man then dialed a number on his phone and handed it to Pena, stating it was the Ross corporate office. After speaking to the person on the phone, Pena instructed security guard Joel Maldonado to take Williams and the other man to a break room at the back of the store near the cash office to set up the pizzas. When they reached the back room, the older man brandished a handgun at Maldonado and instructed him to open the cash office door, but he was unable to. He then struck Maldonado on the back of his head with the gun and told him to call another employee to open the cash office. While this was happening, Pena went to the back for her lunch break and saw the assailants holding Maldonado against a wall. There was blood on his neck and on the cash-office's keypad. The perpetrators forced Pena to open the cash office, bound Maldonado with plastic ties and duct tape, instructed Pena to open the safe, and put approximately $45,000 in the pizza bags. They then bound Pena and left.
A few minutes later, [Petitioner] and Salcedo entered a Ross store on Jefferson in Culver City dressed in Domino's Pizza uniforms, wearing latex gloves and carrying pizza bags. They spoke with supervisor Salvador Rivera, who took them to the back office. Salcedo handed
Rivera a phone on which he spoke with a man who said he was from the Ross corporate office. The man authorized the pizza order and instructed Rivera to check his email for payment instructions. Rivera told [Petitioner] and Salcedo to set up the pizza in the break room while he went into the main office to use a computer. [Petitioner] and Salcedo followed him in and closed the door, and [Petitioner] drew a handgun and pointed it at Rivera. [Petitioner] told Rivera he was being robbed and said they wanted only money, not to hurt him. Rivera informed [Petitioner] and Salcedo that the money was kept in a room adjacent to the office, and they all began to walk to that room. Loss prevention employee Vincent Gamez came to the back of the store to get a slice of pizza and was talking on his phone outside the office when [Petitioner], Salcedo, and Rivera exited. [Petitioner] pointed the gun at Gamez, and he and Salcedo took both men into the cash room and demanded that Rivera open the safe. After Rivera complied, Salcedo restrained him and Gamez with plastic ties. [Petitioner] took $30,000 from the safe and put it in a pizza bag, and he and Salcedo left.
B. Investigation
Culver City Police Detective Ryan Thompson investigated the robbery at the Ross store in Culver City. He viewed fingerprint evidence and the security camera footage from both that store and the store on Hollywood Boulevard, and based on this evidence and
information from undercover detectives, ultimately arrested [Petitioner] and Williams. A search revealed a loaded firearm, several hundred dollars in cash, and two cell phones, one of which contained contact numbers for Salcedo and Emmanuel Flores, a fourth Inglewood 13 gang member. Police later searched [Petitioner's] residence and found a Mini 14 Ruger rifle and loaded magazine, a Domino's Pizza shirt, and an insulated pizza bag. Then they searched Flores's residence and found manuals and official papers from Ross, a "porcelain-style hand" molded into a gang sign, and various gang paraphernalia, including photographs of Flores and others making gang signs.
[Petitioner], Williams, Salcedo and Flores were all charged in the same information. (Salcedo and Flores are not part of this appeal.) [Petitioner] and Williams were charged with multiple counts of robbery and kidnapping for robbery, attempted robbery, conspiracy to commit robbery, and possession of an assault weapon, and it was alleged they committed the crimes for gang purposes.
C. Expert Testimony
Inglewood Police Officer Daniel Milchovich testified as an expert about the Inglewood 13 gang, which has roughly 350 members and four or five major cliques. The gang claims all of Inglewood as its "turf." Its primary activities include vandalism, robbery, carjacking, assault, including shootings, and murder. Respect is important to the gang, and signs of disrespect would
likely result in violence. For example, Milchovich testified that if a person who was not a member were to display a gang tattoo or hand sign, the result could be "an altercation, a fight, being jumped, being assaulted, being stabbed. It could result in murder. It's that serious."(Lodged Doc. 7 at 2-5.)
Inglewood 13 gang members obtain status within the gang through various means, including committing crimes and assisting other gang members in committing crimes. Gang members commit crimes together to prove their dedication to the gang and to promoting its status, and also to decrease the chance that one perpetrator will identify another to police or testify against him at trial.
In responding to a hypothetical question based on the circumstances of this case, Milchovich opined that such a crime would have been committed for the benefit of, at the direction of, or in association with a criminal street gang. His opinion was based on the way in which the gang members worked cooperatively to accomplish the robberies, the enhancement to the gang's reputation for violence, and the gang's ability to use the proceeds from the robberies to fund its activities.
STANDARD OF REVIEW
Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996:
An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (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.
Under AEDPA, the "clearly established Federal law" that controls federal habeas review consists of holdings of Supreme Court cases "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000). As the Supreme Court has "repeatedly emphasized, . . . circuit precedent does not constitute 'clearly established Federal law, as determined by the Supreme Court.'" Glebe v. Frost, 135 S. Ct. 429, 431 (2014) (per curiam) (quoting § 2254(d)(1)).
Although a particular state-court decision may be both "contrary to" and "an unreasonable application of" controlling Supreme Court law, the two phrases have distinct meanings. Williams, 529 U.S. at 391, 412-13. A state-court decision is "contrary to" clearly established federal law if it either applies a rule that contradicts governing Supreme Court law or reaches a result that differs from the result the Supreme Court reached on "materially indistinguishable" facts. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (citation omitted). A state court need not cite or even be aware of the controlling Supreme Court cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Id.
State-court decisions that are not "contrary to" Supreme Court law may be set aside on federal habeas review only "if they are not merely erroneous, but 'an unreasonable application' of clearly established federal law, or based on 'an unreasonable determination of the facts' (emphasis added)." Id. at 11 (quoting § 2254(d)). A state-court decision that correctly identifies the governing legal rule may be rejected if it unreasonably applies the rule to the facts of a particular case. Williams, 529 U.S. at 407-08. To obtain federal habeas relief for such an "unreasonable application," however, a petitioner must show that the state court's application of Supreme Court law was "objectively unreasonable." Id. at 409-10. In other words, habeas relief is warranted only if the state court's ruling was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011).
Here, Petitioner raised his claim on direct appeal (Lodged Doc. 4), and the court of appeal rejected it in a reasoned decision (Lodged Doc. 7). The state supreme court then summarily denied Petitioner's petition for review. (Lodged Docs. 8, 9.) The Court "looks through" the supreme court's silent denial to the court of appeal's decision as the basis for the state courts' judgment. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991). Because the court of appeal adjudicated the claims on the merits, the Court's review is limited by AEDPA deference. See Richter, 562 U.S. at 100.
DISCUSSION
Petitioner's Sufficiency-of-the-Evidence Claim Does Not Warrant Habeas Relief
Petitioner contends that insufficient evidence supported the gang enhancement. (Pet. at 5-6.)
A. Applicable Law
The Due Process Clause of the 14th Amendment protects a criminal defendant from conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). Thus, a state prisoner who alleges that the evidence introduced at trial was insufficient to support the jury's findings states a cognizable federal habeas claim. Herrera v. Collins, 506 U.S. 390, 401-02 (1993).
In considering a sufficiency-of-the-evidence claim, a court must determine 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 v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). California's standard for determining the sufficiency of evidence to support a conviction is identical to the federal standard enunciated in Jackson. People v. Johnson, 26 Cal. 3d 557, 576 (1980). On federal habeas review, a state court's resolution of a sufficiency-of-the-evidence claim is evaluated under 28 U.S.C. § 2254(d)(1) rather than § 2254(d)(2). Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005) (as amended).
Jackson "makes clear that it is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence admitted at trial." Cavazos v. Smith, 132 S. Ct. 2, 3-4 (2011) (per curiam). Thus, the reviewing court "cannot second-guess the jury's credibility assessments"; such determinations are "generally beyond the scope of review." Kyzar v. Ryan, 780 F.3d 940, 943 (9th Cir.) (citation omitted), cert. denied, 136 S. Ct. 108 (2015).
The reviewing court "must look to state law for 'the substantive elements of the criminal offense,'" although the "minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law." Coleman v. Johnson, 132 S. Ct. 2060, 2064 (2012) (per curiam) (quoting Jackson, 443 U.S. at 324 n.16).
California Penal Code section 186.22(b)(1) authorizes a sentencing enhancement when a defendant commits a felony "for the benefit of, at the direction of, or in association with any criminal street gang" and does so "with the specific intent to promote, further, or assist in any criminal conduct by gang members." The mental-state element "is unambiguous and applies to any criminal conduct" by gang members, including the underlying crime of conviction. People v. Albillar, 51 Cal. 4th 47, 66 (2010) (emphasis in original); see Emery v. Clark, 643 F.3d 1210, 1215 (9th Cir. 2011) (per curiam) (acknowledging that Albillar rejected Ninth Circuit's earlier interpretation of law). Moreover, the statute does not require "specific intent to promote, further, or assist a gang"; it "requires only the specific intent to promote, further, or assist criminal conduct by gang members." Albillar, 51 Cal. 4th at 67 (emphases in original). Thus, if substantial evidence shows 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. "'Expert opinion that particular criminal conduct benefited a gang' is not only permissible but can be sufficient to support the [section 186.22(b)(1)] gang enhancement." People v. Vang, 52 Cal. 4th 1038, 1048 (2011) (quoting Albillar, 51 Cal. 4th at 63).
B. Relevant Background
The court of appeal rejected Petitioner's claim:
Substantial evidence demonstrates the Ross store robberies were committed in association with Inglewood 13 and for its benefit.
[Petitioner and Williams] concede the evidence established they were Inglewood 13 members who intentionally committed crimes with two other members. This fact alone established they acted in association with Inglewood 13 with specific intent to assist in criminal conduct by gang members, which is enough to justify the sentencing enhancement. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [jury may "reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members"].)
Substantial evidence also indicated [Petitioner and Williams] acted for the benefit of Inglewood 13. As
Officer Milchovich explained, respect and status are important elements of gang membership and can be earned by committing crimes with other gang members, as doing so demonstrates courage and dedication to the gang and to promoting its status. Respect and status earned by individual gang members strengthens the gang as a whole. Committing crimes with fellow gang members also increases the chances of success, because a participant may rely on the others' cooperation and on the gang's internal code to ensure that no participant will cooperate with the police. Because [Petitioner, Williams,] Salcedo[,] and Flores were all Inglewood 13 members they could rely on one another in committing the robberies. This evidence amply establishes that "defendants came together as gang members" to commit the Ross store robberies. (People v. Albillar, supra, 51 Cal.4th at p. 62 [evidence that rape was committed by three gang members in concert supported gang enhancement].)
[Petitioner and Williams] acknowledge the evidence showed they themselves benefitted from the crimes and associated with other gang members to commit them, but argue no benefit to the gang resulted because no evidence showed the gang received any robbery proceeds or its reputation was enhanced. They argue association with gang members is not association with the gang and money obtained by gang members cannot be said to have been obtained by the gang. [Petitioner and Williams] thus purport to draw a distinction between gang members and
the gang itself. The distinction is illusory.
A gang is an association of individuals, not a tangible entity separate from the individuals. The word "gang" is a synecdoche that identifies both the individuals and the group they make up. Association with a gang for purposes of section 186.22 is therefore satisfied by association with at least one gang member. Given that by statutory definition a gang may comprise as few as three individuals (§ 186.22, subd. (f)), association with three gang members necessarily supports a reasonable inference of association with the gang.
In a similar vein, money obtained by several gang members working in concert may be reasonably inferred to redound to the benefit of the gang itself. We acknowledge that "[n]ot every crime committed by gang members is related to a gang" (People v. Albillar, supra, 51 Cal.4th at p. 60), and "it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang" (People v. Morales, supra, 112 Cal.App.4th at p. 1198). But the "typical close case is one in which one gang member, acting alone, commits a crime." (Ibid.; see, e.g., In re Daniel C. (2011) 195 Cal.App.4th 1350, 1361 [gang enhancement reversed where perpetrator acted alone]; People v. Ochoa (2009) 179 Cal.App.4th 650 [same]; People v. Ramon (2009) 175 Cal.App.4th 843 [gang enhancement reversed where two perpetrators were gang members]; In re Frank S. (2006) 141 Cal.App.4th 1192 [one perpetrator];
see also People v. Albarran (2007) 149 Cal.App.4th 214 [shooting committed by gang member and unidentified associate did not support inference that shooting was gang motivated].) Given that a gang may consist of three individuals, evidence showing that four Inglewood 13 members received money from the Ross store robberies permitted the jury reasonably to conclude Inglewood 13 itself benefitted from them.(Lodged Doc. 10 at 7-9.)
[Petitioner and Wiliams] argue that to show a gang benefitted from money obtained by its members the prosecution must show the money was spent on or earmarked for further criminal activity. We disagree. Although by definition one or more of a gang's primary activities is crime (§ 186.22, subd. (f)), that need not be its only activity, and thus the money need not be spent only to further crime to benefit the gang.
Furthermore, substantial evidence indicated Inglewood 13 received non-monetary benefits from the Ross store robberies. As Officer Milchovich opined, robberies such as these establish and demonstrate the perpetrators' solidarity and enhance their reputations and status with one another. Solidarity and reputation are associational phenomena, and strengthening them in individuals strengthens the association.
The gang enhancement was proper.
C. Discussion
The court of appeal was not objectively unreasonable in finding that sufficient evidence supported the gang enhancement. First, ample evidence showed that Petitioner committed the robberies, attempted robbery, and conspiracy to commit robbery in "association with" other gang members. Milchovich testified that Petitioner, Williams, Saucedo, and Flores all had tattoos common to Inglewood 13 members. Photographs of Petitioner making gang signs with other Inglewood 13 members, including Williams, Salcedo, and Flores, were found in Flores's and Petitioner's residences. (Lodged Doc. 2, 2 Rep.'s Tr. at 102, 199-201, 3 Rep.'s Tr. at 208-15, 454-55.) Petitioner, Salcedo, and Flores all admitted to officers that they were members of the Inglewood 13 gang. (Lodged Doc. 2, 2 Rep.'s Tr. at 201, 3 Rep.'s Tr. at 216, 220-21.) And Milchovich opined that Williams was a member of Inglewood 13 based on his gang tattoos and the photographs of him with other gang members. (Lodged Doc. 2, 3 Rep.'s Tr. at 216.) As Milchovich testified, when "four individuals from Inglewood 13 coordinate [and] commit a crime together, the association link is fairly obvious." (Id. at 223.)
Although Flores was not physically present during the crimes, Detective Chris Caraballo testified that he searched Flores's residence and found Ross manuals, documents showing that Flores was once a Ross employee, and items showing his gang association. (Lodged Doc. 2, 2 Rep.'s Tr. at 99-102, 105.) Moreover, phone records apparently showed calls from Petitioner's cell phone to Flores's, which the prosecutor argued was the "fake corporate number," during the robbery of one of the Ross stores. (See, e.g., Lodged Doc. 2, 3 Rep.'s Tr. at 404-10, 451-54, 463-64, 472-75, 4 Rep.'s Tr. at 535-37). Thus, the evidence showed that Flores was involved in both the planning and the execution of the robberies.
(See Lodged Doc. 2, 3 Rep.'s Tr. at 211-13 (Petitioner had tattoo of symbol for "Out of the Woods" rap label, which was a "common symbol among Inglewood 13 gang members," and tattoo of Duke University symbol, signifying membership in Inglewood 13's Duke clique), 212 (Flores had "Inglewood" tattooed on stomach, which was "a common tattoo . . . among Inglewood 13 gang members"), 215-16 (Williams had tattoos of "Out of the Woods" symbol and "I.N.G.," an abbreviation for "Inglewood" and a "common tattoo used by Inglewood 13 gang members"), 217-19 (Saucedo had tattoos of "Out of the Woods" and Duke University symbols; "City of Champs," referring to Inglewood and common tattoo among Inglewood 13 gang members; "Hyde Park," referring to a street in Inglewood; and "Jimbo," his gang moniker).)
The evidence also showed that Petitioner's crimes benefited his gang. Milchovich testified that robbery was one of Inglewood 13's primary activities (Lodged Doc. 2, 2 Rep.'s Tr. at 194) and that gang members would generally commit crimes with someone they knew and trusted, who would not identify or testify against them (Lodged Doc. 2, 3 Rep.'s Tr. at 222). In response to a hypothetical tracking the circumstances of Petitioner's and Williams's crimes, Milchovich testified that Inglewood 13 would benefit from them because "[t]he more gang members in a gang . . . are known to be violent, to commit crimes, to be intimidators, the more of the overall respect the gang itself gets." (Id. at 222-23.) He explained that
[w]hen four gang members get together to . . . commit some type of crime such as a robbery, carry a gun, use that gun during the commission of that crime, those gang members . . . prove not only their dedication to the gang itself, but also their 100 percent dedication to promoting or furthering that gang's respect level or status. When I talk about promoting the respect level, I'm talking about the respect level in both the gang
world itself and also out in the community.(Id. at 224.) He explained that a "secondary benefit" to the gang was that proceeds from the crimes could be used to buy "more weapons" or narcotics that could be sold for a profit. (Id.) And a "third benefit" was that "people in the community recognize and understand the violent nature of gangs" and are afraid to report crimes, act as witnesses, identify gang members, and testify in court. (Id.) As a result, "gangs and gang members are allowed to freely commit crime without involvement from law enforcement." (Id. at 224-25.)
Sufficient evidence also showed that Plaintiff had the specific intent to promote, further, or assist criminal conduct by gang members. The evidence showed, and Petitioner does not dispute, that he was a gang member; he knew that Saucedo, Williams, and Flores were also gang members; and the four of them conspired to commit robbery, robbed three Ross stores, and attempted to rob a fourth. That was sufficient to show that Petitioner had the requisite specific intent. See Albillar, 51 Cal. 4th at 68 ("if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members"); Cruz v. Gipson, 566 F. App'x 587, 588-89 (9th Cir.) (finding that "[s]ufficient evidence . . . supports the inference that [petitioner] knew [accomplice] was a member of MS13 and intended to help [accomplice] commit the robbery," and "[n]othing more is required to satisfy the specific intent requirement of" § 186.22(b)(1)), cert. denied sub nom. Cruz v. Biter, 135 S. Ct. 89 (2014); Emery, 643 F.3d at 1216 (finding that specific intent to assist in "criminal conduct by gang members" may include the crimes of conviction); Tran v. Horel, 446 F. App'x 859, 860-61 (9th Cir. 2011) (finding sufficient evidence that petitioner acted with specific intent when "the four people with whom [petitioner] committed the offense were all members of a gang" and petitioner "knew that at least some of the four were gang members").
Petitioner nevertheless contends that the evidence was insufficient to support the gang enhancement because the "sole evidence" in support of it was "the testimony of an investigating officer who was qualified as the gang expert." (Pet. at 5; see also id. at 6 (arguing that Milchovich "never expressly testified there was an actual benefit to the gang, but rather only speculated about potential benefits to the gang premised on facts that were never proven").) But such opinion evidence can be sufficient to prove that particular conduct benefited a gang. See Vang, 52 Cal. 4th at 1048 ("'Expert opinion that particular criminal conduct benefited a gang' is not only permissible but can be sufficient to support the Penal Code section 186.22, subdivision (b)(1), gang enhancement." (quoting Albillar, 51 Cal. 4th at 63)); see also Huerta v. Adams, 545 F. App'x 671, 672 (9th Cir. 2013) ("[Petitioner] principally disputes the prosecution's use of gang-expert testimony to prove the elements of this enhancement, but the jury was entitled to consider such testimony, which focused on gang culture and also included specific hypotheticals tailored to the facts of this case."); Bonilla v. Adams, 423 F. App'x 738, 739-40 (9th Cir. 2011) (rejecting sufficiency-of-evidence challenge to gang enhancement when petitioner committed robbery with two other gang members and expert testimony "explained in hypothetical terms how such offenses could be useful to the gang as a whole"). And in any event, other evidence supported the jury's finding that Petitioner committed his crimes "for the benefit of, at the direction of, or in association with any criminal street gang," Cal. Penal. Code § 186.22(b)(1), such as the evidence that Petitioner was a member of Inglewood 13 and committed his crimes with three other gang members.
Petitioner relies on People v. Ochoa, 179 Cal. App. 4th 650, 660 (2009), which held that "[a] gang expert[']s testimony alone is insufficient to find an offense gang related." In Ochoa, however, the evidence did not support the gang expert's testimony — rather, the evidence showed that the defendant acted alone to rob a fast-food restaurant, with no other indication of gang involvement. Id. at 662-63 (finding that "gang enhancement cannot be sustained based solely on defendant's status as a member of the gang and his subsequent commission of crimes"). As discussed above, here Milchovich's testimony was based on a hypothetical that closely tracked the circumstances of Petitioner's crimes, which were committed with three other Inglewood 13 gang members. --------
Petitioner also argues that insufficient evidence supports the gang enhancement because nothing showed that he and his accomplices "made their victims aware of their gang affiliation." (Pet. at 5.) But Milchovich testified that "[j]ust because the gang didn't say their name at the time of the crime [he] wouldn't change [his] opinion" that the crimes benefited the gang. (Lodged Doc. 2, 3 Rep.'s Tr. at 225.) He explained that "the ultimate goal of somebody committing a crime . . . is not to get caught," and that "[e]ven though they didn't say the name [of the gang] to the people that are either the victims or witnesses of the crime, doesn't mean that they're still not going to gain that street credit" because gang members brag about their crimes and "[w]ord on the street spreads like wild fire." (Id. at 225-26.) see Scott v. Davey, No. ED CV 15-0879 RGK (AFM), 2015 WL 9684923, at *7 (C.D. Cal. Nov. 3, 2015) (rejecting petitioner's sufficiency-of-evidence challenge to gang enhancement, noting that "the absence of evidence of gang signs, utterances, clothing, or graffiti in connection with the robberies did not mean that they were not gang-related"), accepted by 2016 WL 107905 (C.D. Cal. Jan. 8, 2016), appeal docketed, No. 16-55205 (9th Cir. Feb. 10, 2016).
For all these reasons, the court of appeal was not objectively unreasonable in finding that sufficient evidence supported the gang enhancement. Petitioner is not entitled to habeas relief.
CONCLUSION
IT THEREFORE IS ORDERED that the Petition is DENIED and judgment be entered dismissing this action with prejudice. DATED: June 15, 2016
/s/_________
JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE