F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

R O N N E L D J O H

N S O N , Petitioner-Appellant
,

v.

W

. L

. M O N T G O M E R

Y , Acting W arden, Respondent-Appellee. No. 15-56007

D.C. No. 2:14-cv-04766- AB -VB K

OPI NI ON

A ppeal from the United States District Court for the Central District of California Andre B irotte, J r., District J udg e, Presiding

Arg ued and Submitted F ebruary 13, 2018 Pasadena, California

F iled Aug ust 15, 2018

B e fore: Marsha S. B erz on and J ay S. B y bee, Circuit J u dg e s, and J ohn A. W oodcock, J r. * District J udg e.

Opinion by J udg e W oodcock; Partial Concurrence and Partial Dissent by J udg e B erz on

* T h e Ho n o rab le J o h n A

. Wo o d co ck
, J r., Un ited States District J u dg e f o r th e District o f

Main e, sittin g b y

d esig n atio n

.J O H N S O N V

. M O N T G O M E R Y 2

SUMMARY * *

Habeas Corpus

The panel affirmed the district c ourt’s denial of California
state prisoner Ronneld J ohnson’s habeas corp us petition challeng ing enhancements applie d a t sentencing for his conviction for two counts of robbery

.

J ohnson a

rg ued that the evidence supporting an enhancement for a g ang -related crime was constitutionally insufficient under Jackson v. Virginia , 443 U.S. 307 (1979). The p a n el held that it was objectively unreasonable f o r the California Court of Appeal to conclude that the evidence was sufficient for a reasonable jury to f i n d t he robbery was committed “in association with” a g ang , but that a n y error reg arding g ang “association” w as harmless b ecause th e California Court of Appeal’s alternative conclusion—that the evidence was sufficient for a r easonable jury t o find the robbery was committed “ for the benefit of” a g ang —was not objectively unreasonable.

J ohnson also arg ued that a n enhancement for a p r i o r nonjury juvenile adjudication violates App r e n di v. New Jersey
, 5 30 U .S. 466 (2000). The panel held that even assuming that the California Supreme Court should have decided that J ohnson’s Apprendi clai m s fell within an

ex c e ption to the In re Dixon procedu ral bar, J ohnson would
not h ave been entitled to a reduced sentence because the California S u p reme Court would have applied People v

.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.J O H N S O N V

. M O N T G O M E R Y 3

Nguyen
, 209 P.3d 946 (Cal. 2009) (interpreting A p prendi ’s

ex c e ption for prior c o n v ictions to cover nonjury juvenile adjudications), and r easonably upheld the s e ntencing enhancement based on J ohnson’s juvenile conviction.

Concurring in part and dissentin g in part, J udg e B erz on ag reed with the majority as to J ohnson’s Apprendi claim, but did n ot ag ree that a rational jury could have found that J ohnson commi t t e d robbery for the benefit of a g ang totally distinct from his own.

COUNSEL

Michael T. Drake ( arg ued), Research and W riting Attorney ; H ilary L

. Potashner, F ederal Public Defender; Office of th e F ederal Public Defender, L os A ng eles, Calif ornia; for Petitioner-Appellant.

Charles S h a n g -Rei L ee (arg ued) and Kathy S. Pomerantz
, Depu t y A ttorney s G eneral; Kenneth C. B y rne, Supervising Deputy Attorney General; L ance E. W inters, Senior Assistant Attorney General; Gerald A. Eng ler, Chief Assistant Attorney Gener a l ; Xavier B ecerra, Attorney General; Office o f the Attorney General, L os Ang eles, California; for RespondentAppellee.J O H N S O N V

. M O N T G O M E R Y 4

OP INION

W O ODCOCK, District J udg e:

Ronneld J o hnson, a California state p risoner, appeals the district c ourt’s denial of his petition f o r a writ of h abeas
corpus pursuant to 2 8 U

. S

. C. § 2254 c halleng ing his sentencing enhancement for a prio r n onjury juvenile conviction and his sentencing enhancement for a g ang -related crime. J ohnson arg ues that the evidence supporting the g ang enhancement was constitutionally insufficient under Jackson

v. Virginia
, 443 U

. S

. 307 (1979), and he arg ues that the enhancement for h is n o njury juvenile conviction violates Apprendi v. New Jersey
, 530 U.S. 466 (2000). B ecause the evidence was sufficient to establish that the robbery was “for the b enefit of” a g ang , and because the juvenile conviction claim was procedurally barred and sentencing enhancements based on nonjury juvenile conviction s d o not violate any clearly e stablished federal law a s d etermi n e d by the United States Supreme Court, we affirm.

I

Background

A. The Robbery

At roug hly 9:00 AM on November 9, 2 0 11, Ronneld J ohnson and J onathan King twice d rove b y a house in the

area of 111th and Anz ac or Grape Streets in South e ast L os Ang eles. Two men w ere d oing landscapin g work at the house. J o hnson and King then pulled into an alley nex t to the house, ex ited the car, a

n d approached the other men. J ohnson pointed a semiautomatic g un at the f aces of the victims, firstJ O H N S O N V

. M O N T G O M E R Y 5

at one, and then he hopped a small fence to point the g un at the other. J ohnson and King took their money , a cell phone, and a g old chain. During the robbery
, either J ohnson or King

sa id, “Hurry u

p cuz ,” which was either directed at the other d e f e ndant or at one of the victims. J o hnson and King t h e n g ot back in the car and left.

I n December 2011, the State charg ed both J ohnson a nd King with t w o counts of robbery each, including g ang a nd
g un enha n c e ment alleg ations. I n March 2012, a jury convicted J ohnson and K ing and foun d t h e g ang a nd g un enhancements to be true.

B. The Gang Evidence

The prosecution called an ex pert witness, Officer J ose Carias, t o t e s tify a

bout the nature of criminal street g ang s. F or ex a mple, Officer Carias ex plained that g ang members sometimes commit crimes so that other members will “respect” them, and he testified that g ang s often encourag e o r require their membe rs t o “put in work”—meaning commit crimes—in order to ensure the g ang i s r e s p e cted a nd feared by others in the community
, e l e v a t i ng the status of the g ang and discourag ing witnesses from reporting information to the police. He said t h at “ c u z ” is a term ty pically u sed by Crip
g ang s, and is not a t e r m ty pically u sed by members of other
ga n gs , like B loods or H ispanic g ang s. H e also testified th at it is not uncommon for members of different g ang s to commit crimes tog ether after forming ties throug h family
, school, o r juvenile detention.

King was an a dmitted member of a ga n g, the Project W a tts Crips. He had numerous tattoos indicating members h i p in that g ang , including some on his face a ndJ O H N S O N V

. M O N T G O M E R Y 6

hands. J ohnson had self-identified as a member of the 58th Street N eig hborhood C r i p s in 2006, but the tattoos on his body
, including h is hands, sug g est he was a member of a different g ang , the East Coast Crips. Robbery is o ne of the primary activities of the P roject W atts Crips. The robbery occurred within the a

rea the Project W atts Crips claims as its territory

. The territory of the East Coast Crips is roug hly four or five miles away

.

After a leng thy hy

pothetical scenario corresponding to the facts of J ohnson and King ’s case, the g ang ex pert opined that the individuals “committed a crime tog ether in concert a nd thus in association with another g ang member,” and he concluded that the crime p rimarily benefited the Project W a tts Crips. T he ex p ert relied on the following factors: that both perpetrators were members of g a ng s, they committed the crime within Project W atts Crips territory
, they used the word “cuz ,” they drove by the victims multiple times indi cating a level of sophistication, they seemed comfortable because they took the time to jump a fence and rob a s e c o n d person, a nd the crime occurred in broad day lig ht, without a

ny attempt to hide their identities.

C. The Post-Trial Proceedings

On April 4, 2012, the trial court sentenced J ohnson to an ag g r eg ate term of imprisonment of twenty -eig ht y ears, eig ht months. T h e sentence w as b ased on the robbery
, the g ang and g un enhan c ements, and a prior strike from a juvenile convictio n , a ll to run c onsecutively

. The sentencing court also found J ohnson in violation o f probation in another c ase, and sentenced him to an additional consecutive 16-mo n th term of imprisonment.J O H N S O N V

. M O N T G O M E R Y 7

On Octo b e r 4
, 2012, J ohnson filed a direct a ppeal. The California C o u r t o f Appeal denied his appeal on May 15, 2013. J ohnson soug ht review from the Californi a Supreme Court, but it denied review without substantive comment on J uly 24, 2013.

On J a nuary 6, 2 0 14, J ohnson filed a state habeas petition. The Cali f

o r n i a Court of Appeal denied the petition on J anuary 2 3
, 2 0 1 4

. On F ebruary 18, 2014, J ohnson filed a habeas pet i t i o n in the California Supreme Court. I t denied J ohnson’s petition on May 14, 2014.

On J une 20, 2014, J oh n s o n f i l ed a petition for a writ o f habeas corpus in the United State s Di s t r ict Court for the Central District of California. The distri c t court denied J ohnson’s habeas petition on J une 8, 2015.

I I

The Sufficiency of the Evidence for the Gang Enhancement

A. The Standard of Review

“Other than the fact of a prior c onviction, a n y f a ct that increases the pen a l t y f

or a crime bey ond the prescribed statutory max imum” or “increases the mandatory minimum [ sentence] is an ‘element’ that must be submitted to the jury ” and p roved bey ond a reasonable doubt. Apprendi
, 5 3 0 U.S.
at 490; A lleyne v. U

nited S ta t es , 570 U.S. 99, 103 (2013). Un d e r Jackson
, a due process claim c halleng ing the sufficiency of the evidence “can only succeed w hen, viewing all the e vidence in the lig ht most favorable to the prosecution,

no r ational trier of fact could h ave found the essential elements of the crime bey ond a reasonable doubt.” Emery v

.J O H N S O N V

. M O N T G O M E R Y 8

Clark
, 6 4 3 F .3d 1 210, 1213 (9th Cir. 2 011). “ W hen assessing

a petition for a writ of h abeas c orpus, we thus ‘ look to [ state] law only to establish the elements of [ the crime] and then turn t o the federal question of whether the [ state] cou rt w a s objectively unreasonable in c oncluding that sufficient

e vidence supported [ its decision] .’” Boyer v. Belleque
, 659 F .3d 957, 965 ( 9 t h Cir. 2 011) (alterations in orig inal) (quoting Juan H. v. Allen
, 4 08 F

. 3d 1262, 1278 n.14 (9th Cir. 2005)). I n addition to Jackson ’s a lready deferential standard,

a second level of deference a p p l i e s under AEDPA. F o r the petitioner to prevail, we must conclude that the state court’s determination that a rational jury c o uld have found e ach required element proven bey ond a reasonable doubt w as not just wro n g but was objectively unreasonable. Boyer
, 659 F .3d at 964–65.

B. The California Gang Enhancement

California’ s g ang enhancement applies to “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street g ang , with the specific intent to promote, further, or assist in
any cri minal conduct by g a n g members.” Cal. Penal Code § 186.22(b)(1). The f

irst p r o n g r equires that the crime be related to a g ang , and the second prong that the defendant specifically intend to a ssist a g ang member’s c r ime. See People v. Albillar
, 244 P.3d 1062, 1070 ( Cal. 2010). J ohnson does not challeng e the sufficiency of the evidence reg arding the specific intent prong

. Rather, he challeng es the California appellate court’s conclusions that there w a s sufficient evidence that the r o b bery he committed with King was “in association w ith” and “for the benefit of” a ga n g. “B ecause the first prong is w orded i n the disjunctive, [the] g ang enhancement may be i m p o s e d” based on either g angJ O H N S O N V

. M O N T G O M E R Y 9

association or benefit. People v. W eddington
, 200 Cal. Rptr. 3d 799, 813 (Cal. Ct. App. 2016).

1. It was objectively u nreasonable to conclude that the evidence was suf

f i ci e n t for a reasonable jury to find the robbery was committed “in asso c i a tion with” a gang.
“Committing a crime i n concert with known g ang members can be substantial evidence th a t t h e crime was committed in ‘association’ with a g ang .” People v

. G a rcia
, 199 Cal. Rptr. 3d 399, 413 (Cal. Ct. App. 2016). A crime is

c o m mitted “in association with” the g ang if the “defendants relied on their common g ang membership and the apparatus of the g ang ” when they committed the crime. Id. at 414 (quoting Albillar
, 244 P.3d a t 1071). I n Albillar
, the California Supreme Court focused on the act of “committing

a crime with fellow g a

ng members.

. . .” 244 P.3d at 1072. Albillar teaches that it is not sufficient to simply commit any act in concert with a g ang member, rath e r i t i s acting in
concert with individuals o f “common g ang membership” that

sa t i s fi es the “ in association with” element of the g ang enhancement. Id.

The Cali f

o rnia Court of Appeal concluded that the evidence was sufficien t to support the g ang enhancement based on the “in association with” component be c a u s e J ohnson and King were both g ang members, coupled with “the manner i n w h i ch the robberies were committed, which indicated appellants acted in concert.” The court also pointed
to the ex pert’s testimony that “g ang members’ personal ties spill over into street crime.” The c ourt’ s c o n clusions were unreasonable because J ohnson and King did not act “in concert” with “fellow” or “common” g a ng members.J O H N S O N V

. M O N T G O M E R Y 10

J ohnson a

nd King were members o f different g ang s, with different enrollment and territories.

I t is also not enoug h to say that J ohnson and K ing were both Crips. Under Calif o r n i a law, the prosecution cannot g roup distinct g ang s or sets within a larg er crimina l o utfit

u n less there is “some associational or org aniz ationa l connecti o n u niting those subsets.” People v. Prunty
, 355 P.3d 480, 486 ( Cal. 2015); see also People v. Franklin
, 203 Cal. Rptr. 3d 876, 886 (Cal. Ct. App. 2016) (labeling the State’s attempt to g roup d istinct g ang s tog ether a “bait-andswitch” and c oncluding there wa s insufficient evidence o f “association” when the Defendant, a member of the J im Town g ang , committed a crime “with the assistance of three friends w ho were members of other g ang s, not the J im T o wn g ang .”).

Nevertheless, any error reg arding g ang “association” was harmless because the California Court of Appeal’s alternate conclusion—that there was sufficient ev i d e n c e the robbery

was committed “for the b enefit of” a g ang —was not objectively unreasonable. See infra.

2. It was not obj e c tively u nreasonable to conclude that the e vidence was sufficient for a reasonable jury to find the robbery was committed “for the benefit of” a gang.

Under California law, “[ e] x pert opini o n t hat particular criminal conduct benefited a g ang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct w a s ‘ c o m m i t ted for the benefit of

. . . a [ ] criminal
street g ang ’ within the meaning of section 186.22(b) (1).” Albillar
, 244 P.3d a t 1 073. “[ T] h e ty pical close case is one inJ O H N S O N V

. M O N T G O M E R Y 11

which one g ang member, acting a lone, commits a crime.” People v. Leon
, 73 Cal. Rptr. 3d 786, 796 ( C al

. Ct. App. 2008) (quoting People v. Morales
, 5 Cal. Rptr. 3d 615, 6 3 2 (Cal. Ct. App. 2003)).

As in many cases, the g a ng ex pert here test i f

i ed that violent crimes benefit a g ang by increasing the intimidation in the community
, lowering reporting rates among witnesses, and allowing the criminal enterprise to continue free from police restraint. The g ang ex pert also opined that such crimes bestow “respect” o n the ind i v i d u al and elevate the status o f the ga n g

. E ven so, the testimony of a g ang ex pert, without
more, “is insufficient to find an offense g ang related.” People

v. O c hoa
, 102 Cal. Rptr. 3d 108, 114 (Cal. C t

. A p p

. 2009). “[ T] he record must provide some evidentiary s upport, other than merely the d efendant’s r ecord of prior offenses and past g ang activities or personal affiliations, for a f i n d i ng that the crime was committed for the benefit of

. . . a criminal street g ang .” Id. (quoting People v. Martinez
, 10 Cal. Rptr. 3 d 751, 757 (Cal. Ct. App. 2004)).

Here, there was sufficient evidence to estab l i s h the followi n g facts supporting the g ang enhancement and the

ex p ert’s testimony : (1) the robbery was a violent crime,

c o m m i t t e d with a g un p ointed directly into the face of a victim, (2) t h e robbery occurred w ithin the territory of the Project W atts Crips, (3) robbery is one of the pr i m ary activities of the Project W atts Crips, (4) the robbery occurred in broad d ay l i gh t, (5) the r obbery was braz en because it involved multiple victims and occurred at a time of t h e day
, rou ghly 9:00 a.m., w hen neig hbors were most likely to observe the crime; (6) King had numerous tattoos, including

some v isible on his face and h ands, indicating membership in the Pro j e c t W atts Crips, (7) during the robbery
, eitherJ O H N S O N V

. M O N T G O M E R Y 12

J ohnson or King used the term “cuz ,” a term u sed b y members of Crips g angs , and (8) the victims were ordinary members of the p ublic with no personal relationship with the defendants or g ang s.

Even thoug h J ohnson and King never ex plicitly mentioned King ’s g a

ng or flashed g a

n g s i gns, it was not objectively u nreasonable to conclude that a rational jury could f ind this cumulative evidence sufficient to s h o w the robbery w as committed “for the benefit of” King ’s g a ng

. The outward manifestations of g ang involvement—King ’s visible
ta t t oos, the use o f g a

ng -affiliated ling o, the braz e n day lig ht timing
, and the apparent comfort with being observed—were sufficient for a jury to infer that the crime was meant to send

a messag e to the public about g ang b ru t a lity and c ontrol. Those o u tward sig ns also pointed to the Project W atts Crips specifically

—King ’s visible tattoos indicated membership in that g ang , the ling o was associated w i t h C r i ps g a ng s, the crime occurred in that g ang ’s territory
, and r obberies are o ne of that g a ng ’s primary

criminal activities.

A California appellate court considered J ohnson’s
arg umen t s t hat the robbery was not “for the benefit of” King ’s g ang and concluded the underly i n g f acts were sufficient to support the ex pert testimony and establish g ang benefit u nder Californ ia law. J ohnson does not dispute whether the evidence was sufficient under Jacks o n to establish the k ey facts, r ather, he questions w hether those uncontested facts are leg a lly sufficient to satisfy the requirements of this California law. That is a question about what state law requires, on which the state court has spoken. Estelle v. M

cGuire
, 502 U.S. 62, 63 ( 1991) ( “ [ I ] t is not the province of a federal habeas court to reex amine state-courtJ O H N S O N V

. M O N T G O M E R Y 13

d e t erminations on state-law questions.”). The state cour t decision was not objectively unreasonable. 1

I I I

The Prior Nonjury Juvenile Adjudication

Apprendi held that any f

act used to increase the max imum penalty for a c rime, “[ o] ther t h a n t he fact of a prior

1 W e n o te th at th is d ecisio n w as n o t in co m p a t i b le w ith o th er Calif o rn ia caselaw

. Hab eas relief m ay lie w h en a m isap p licatio n o f state law is w eig h t

y en o u g h to rise to th e lev el o f a d u e p ro cess v io latio n

. S ee Estelle
, 5 0 2 U.S. at 7 1

– 7 3

. W h en w e “ lo o k to [state] law

. . . to estab lish th e elem en ts o f [th e crim e],” Bo yer , 6 5 9 F.3 d at 9 6 5
, t

h at in clu d es p rio r state cases b ecau se, w ere a state c o ur t t o m isap p l y th e elem en ts or rein terp ret t

h e elem en ts in a w i ld ly i n co n sisten t m an n er, reca st in g

su f f icien cy of th e ev id en ce qu estio n s as m atters o f state law in terp retatio n , it w o u ld d ou

b tless tran sg res s Ja ckso n an d du e p ro cess. B u t th is w as f ar f ro m su ch a case.

T h e state co u

rt’ s decisio n w as n o t ob

j ectiv ely u n reaso n ab le b ecau s e

ev en if it in v o lv ed a slig h tly n o v el ap p licatio n o f th e g an g en h an cem en t elem en ts, th at in terp retatio n w as in h arm o n y w ith p r io r C alif o rn ia
p reced en t, n o t so d isco rd an t as to u n d erm in e th e f

u n d am en tal f

ed eral rig h t to p ro o f o f ev ery elem en t b ey o n d a reaso n ab le d o u b t. No th in g in th e p rio r caselaw p ro h i b ited ap p licatio n o f th e en h an cem en t w h en th e d ef

en d an t

w as n o t a m em

b er o f th e g an g th at th e crim e w as co m m itted t o b e n e f

it. S ee Ga rcia
, 19 9 Cal. Rp tr. 3d at 4 1 4

– 1 6 ; Mo ra les
, 5 Cal. Rp tr. 3 d at 6 3 2

. T h o se Calif

o rn ia cases rev ersin g th e en h an cem en t are d istin g u ish ab le. S ee e

. g

. , Peo

p le v. Rio s , 1 6 5 Cal. R

p tr. 3 d 6 8 7
, 7 1 2

– 1 4 (Cal. Ct. A p p

. 2 0 1 3 ) (n on v io len t p o ssess i o n crim e); O ch o a , 1 02 Cal. Rp tr. 3 d at 1 1 1
, 1 1 7

– 1 8 (at n i g h t, o u tsid e g an g territo ry , n o o b serv a b l e sig n s o f g an g af f iliatio n ); Peo

p le v

. R a mirez
, 1 9 8 Cal. Rp tr. 3 d 3 1 8
, 3 2 2

– 2 3 (Cal. Ct. A p p. 20 1 6 ) (p erso n al d isp u te b etw een n eig h bo rs); Fr a n k l i n , 2 0 3 C a l

. Rp tr. 3 d at 8 8 0

– 8 2 (p rio r ro m an tic relatio n sh ip w ith v ictim ); Peo

p le v. Perez
, 2 2 6 Cal. Rp tr. 3 d 8 2 0
, 8 2 6

– 2 7 (Cal. Ct. A p p

. 20 1 7 ) (o u tsid e g a ng territo ry , n o o b serv ab le sig n s o f g an g af f iliatio n ).J O H N S O N V

. M O N T G O M E R Y 14

conviction,” must be submitted to a jury and proved bey ond

a r easo n able doubt. 530 U.S. at 4 90. The California Supreme Court int e rprets Apprendi ’ s ex ception f or prior convictions to cover nonjury juvenile adjudications. People

v. Nguyen
, 209 P.3d 9 46, 953 (Cal. 2009). This c ourt reached the opposite conclusion. United States v. Tighe
, 26 6 F .3d 1187, 1194 (9th C ir. 2 001). B ut our interpretation o f Apprendi “does not represent clearly established f

ederal law ‘as determined by the Supreme Court of the United States,’”

as required to overturn a state court d ecision r eg arding a federal claim under the Antite r r orism and Effective Death Penalty A c t o f 1996 (AEDPA). Boyd v. Newland
, 467 F .3d 1139, 1 152 (9th Cir. 2 006) (quoting 28 U.S.C. § 2254(d)(1)).

The California Supr e m e C o u r t d e n i e d Jo h n s o n ’s Apprendi claim in his h a

beas petition as procedurally barred, c iting I

n

re Dixon
, 264 P.2d 5 13, 514 (Cal. 1 953). I n California, “[ t] he
g eneral rule is that

. . . the writ will not lie where the claimed

errors could have been, but were not, r a i s e d upon a timely appeal from a judg ment o f conviction.” Id. Th e U n i ted States Supreme Court h eld that California’s D ixon rule is an ad eq u a t e state g round to bar federal h abeas review of a petitioner’s claim. J

ohnson v. Lee
, 1 36 S. Ct. 1802, 1804 (2016) (per curiam).

J ohnson contends that the California Supreme Court misapplied its own procedur al rule b ecause his Apprendi cl a i m falls within a recog niz e d ex ception to Dixon

. 2 Althoug h we e x a mine the application of state rules that bar review of federal claims, Cone v. Bell
, 556 U.S. 449, 468–69 (2009), “it is unusual to r eject a state court’s u s e o f a

2 J oh n so n d o es n o t attem

p t t o dem o n s trate cau se an d p rej u d ice f or th e p ro ced u ral d ef

au lt.J O H N S O N V

. M O N T G O M E R Y 15

procedural bar on the g round that it was e rroneously applied.” Sivak v. H ardison
, 658 F .3d 8 98, 907 (9th Cir. 2011); accord Lopez v. Schriro
, 491 F .3d 1029, 1043 (9th Cir. 2007). Even assuming that the California Supreme Court should have decided that the Apprendi c l aim fell within an ex ception to t h e D i xon bar, J ohnson would not have been entitled to a

r e d u ced sentence because the California Supreme Cour t would have applied Nguyen and rea s o n ably upheld the sentencing enhancement based on J ohns o n ’s juvenile conviction.

I V

Conclusion

F or the reasons set forth above, the district c ourt is AF F IRMED.

B ERZ ON, Circuit J udg e, concurring in part and dissenting in part:

I ag ree with the majority a s to Ronneld J ohnson’s claim under Apprendi v. New Jersey
, 530 U.S. 466 (2000). B u t I do
not ag ree that a rational j u r y c o u l d h ave found that J ohnson committed robbery for t h e benefit o f a g ang totally d istinct from his own.

California law on sentencing enhancements for g ang activity is broad, but—as California c ourts ha v e e xp l a i n e d

— i t is not boundless. Here, taking into account the “double dose of deference” we o we t o a state court’s resolution of a sufficiency of the e v idence claim, Long v. Johnson
, 736 F .3dJ O H N S O N V

. M O N T G O M E R Y 16

891, 896 ( 9th Cir. 2013), there was s i m p l y n o evidence that J ohnson committed robbery either “in a ssociation with” o r “for the benefit of” his co-defendant’s g ang

. Cal. Pen. Code § 1 86.22(b)(1). I would thus g r a n t J o hnson’s habeas c l a i m under Jackson v. Virginia
, 443 U.S. 3 07 (1979). B e cause the majority does not, Idissent.

I.

I beg in with some common g round. The California Court of Appeal held that, in lig ht of J ohnson’s and his codefendant King ’s “ known g ang affiliation,” the f act t hat they “acted in concert,” a

nd evidenc e t h at “g a

ng members’ personal ties spill over into street c rime, .

. . [ w ere] sufficient to establish that each defendant committed the r obberies in a ssociation with a g ang member.” I n so d oing
, the Court misunderstood

a basic premise o f the California g ang enhanceme n t s tatute, as the majority

opinion holds. Maj. Opn. at 9–10.

“Under Jackson
, f

ederal courts must look to state law for ‘the substantive elements o f the c riminal offense.’” Coleman

v. Johnson
, 566 U.S. 650, 6 55 ( 2 012) (internal q u otation marks omitted). Here, the “associa t i o n w i th” prong of the

r elevant California g ang enhancement statute is met wh e n defendants “c[ o] me tog ether as g ang members ” to commit a crime, thus r ely ing on “their c o mmon g ang m e m bership.” People v. Albillar , 51 Cal. 4th 47, 62 (2010).

There was no “common g ang membership” in this case: J ohnson was a me m b e r o f the East Coast Crips, w hile King

was a member o f the Pro j ec t W atts Crips. There was no evidence that the defendants’ g ang s had any overlap in members or activities. I nstead, the g ang ex pert testified that: the Project Watts Crips’ “primary r ivals” included three otherJ O H N S O N V

. M O N T G O M E R Y 17

Crips g a ng s; he disag reed with the proposition that “all Crip
g ang s or set s g et along with other Crip sets”; and he ag reed that, “even thoug h the y ’ v e adopted the same color, if y ou will, or the same title, C r i p s , i t’s b een [ his] ex perience that,

even within that larg er g roup, there’s g oing to be some rivalry and infig hting .”

B e cause the defendants were in different g ang s, and there

was no evidence that the different g a ng s associated w ith o ne another, no r a t i o n a l jury could have found that King a nd J ohnson acted in association with a sing le g ang

.

II.

The Court of A ppeal held, i n t h e alternative, that there

was sufficient evidence under Jackson that J ohnson committed the robberies “for the ben efit of” King ’s g ang

. Cal. Pen. Code § 186.22(b)(1). Unlike the majority

, I would hold this conclusion as well objectively unreasonable.

Under C a l i f

o r n ia law, a c rime can benefit a g a ng if it “enhanc[ es] ” the g ang ’s “rep u t ation for viciousness.” Albillar , 51 Cal. 4th at 63. B ut, here, even the evidence that King c ommitted the robberies t o benefit his o wn g ang ’s reputation was f

l i m s y

. The g ang ex pert opined that the robberies b enefitted the Project W atts Crips in two way s: b y “creat[ ing ] a sense o f f ear and intimidation with the community ,” thereby “prevent[ ing ] c itiz ens from coming forward a nd reporting crimes like this”; and by “bestow[ ing ]

a certain amount of respect on” a nd “elevat[ ing ] the status o f the g ang itself.” T he e x pert r ested his conclusion ex clusively

o n e v i dence that King was a member of the Project Wa t t s Crips, and that robberies w e re committed with “ comfort” in the territ o r y of the Project W a tts Crips “in broad day lig ht,”J O H N S O N V

. M O N T G O M E R Y 18

while one o f the defendants used the word “cuz ,” a word the

ex p ert represented as particular to “Crip g ang members.”

There is an obvious g ap between the e x pert’s opinion a nd the e vidence introduced to s u p port it: “[ T] here was no evidence that

. . . any o f the

. . . persons who witness ed the

c r i me knew that [ Project W atts Crips] g ang members o r affiliates were involved. Therefore, the crime could n ot have enhanced respect for the g ang members or intimidated others in their community

. . . .” In re Daniel C.
, 195 Cal. App. 4th 1350, 1 363 (2011). King or J ohnson used a word g enerically associated with all Crips g ang subsets, including the Project W a tts Crips’ rivals. W hile King h a d P r oject W atts Cripsrelated tattoos, neither victim saw them. Even if the v ictims had seen King ’s tattoos, th e re was n o evidence that they would have been able to associate them with the Project W a tts Crips g ang

. The tattoos d o not obv i o u s l y mean any thing to a lay

person—they c ontain the words “F unny ” a nd “Side,” the letters “P,” “ J ,” and “RI P,” and abstract sy mbols. 1 And the fact that the robbery was committed in Project W atts Crips territory cannot, on its own, support a link between the robbery and the g ang ’s reputation. S ee People v

. R a m o n , 175 Cal. App. 4th 843, 851–52 (2009). On t h at log ic, a ny robbery committed i n t h e territory
, even if it is unconnected
to a g ang o r c onnected to a rival C ri p s ga ng , e nhances the Project W atts Crips’ reputation.

1 Su ch tatto o ev id en ce is f u n dam en tally u n lik e th at in th e m ost relev an t Ca l i fo rn ia case, in w h ich th e “ f

o r th e b en ef

it” p ro n g w as m et d esp ite “ n o o n e call[in g ] o u t th e g an g ’ s n am e ” ; i n th at case, “ th e assailan ts’ id en tity as Carp as g an g m em bers w as o b v io u s,” b eca u s e th e

“ [a]p p ellan t h ad t

h e w ord ‘ C arp as’ tatto o ed acro ss h is u p p er lip .” Peo

p le v. Ga lvez , 1 9 5 Cal. A pp . 4 th 1 2 5 3 , 1 2 6 1 (2 0 1 1 ).J O H N S O N V

. M O N T G O M E R Y 19

The majority places g reat w eig ht on the “outward manifestations of g ang involvement” display ed by both King and J ohnson. Maj. Opn. at 12. This reasoning ig n ores the fact that such sig ns did not, and could not, point to affiliation with the Project W atts Crips in particular, and thus could not benefit that g ang by e n h a n c i ng its reputation. To the ex tent J ohnson display ed sig ns of g ang membership g enerally
, neither California law, nor due process, permits J ohnson to be subject to a sentence enhancement for benefitting a particular
gang by enhancing its reputation b ecause he looked like and sounded like someone who w as in any gang

. A g eneral aura of “g ang ness”—even if broken down in a n u m b ered list—cannot establish a particular b enefit to a particular g ang

.

The Court of Appeal
, a n d today ’s opinion, sidestep the fundamental question of how
, ex actly
, the Project W atts Crips’ reputation in particular c ould h ave been a ffected by the crime when there was no evidence indicating that onlookers could connect the Project W atts Crips t o it. The majority
appears p ersuaded by the Court of Appeal’s concern that if it held “self-identification during the commission of a crime [ to be] an essential requirement,” “such a requirement would allow g ang members to g et around the g ang enhancement.”

To the deg ree this concern constitutes a factual finding
, it is fl a t l y unreasonable. Defendants need not self-identify a s g ang members to commit a crime for the benefit o f a g ang ; they could comm i t a c r i m e to fund a g ang , or to f urther its other illeg a l activities, while maintaining steadfast secrecy

. See, e.g. , Peopl e v. G onzales
, 2 32 Cal. App. 4th 1449, 1466–6 7 ( 2 0 1 5 ). B ut if the prosecutor’s theory is that the defendants intended to benefit a g a ng by enhancing its reputation for v iolence, surely there must be some way for the violent c rime’s victims or o nlookers to connect the particularJ O H N S O N V

. M O N T G O M E R Y 20

defendant’s actions to that ga n g , either throug h selfidentificati o n o r s o me other means. I f the onlookers cannot make that connection, and there is no non-reputational benefit
to the g ang , due process, a s well a s California law, require that defendants not receive a g a n g enhancement.

III.

Even if the e vide n ce barely supported King ’s sentence enhancement, t h ere was just no e vidence introduced as to why J ohnson, a member of o n e g ang , w ould seek to promote the reputation of a different g ang

.

The g ang e x p ert sug g ested that it was “not u n common” for members of different g a n gs to commit crimes tog ether because they “form[ ] ties” at school, throug h famil y , o r at juvenile hall. I n other words, he o p i ned that members o f different g ang s commit crimes tog eth e r b ecause they know each o ther. That is not an opinion or e vidence that they commit crimes tog ether because they seek to ben e f i t o ne another’s g ang s.

The majority ’s result implies that J ohnson’s motives a re of no moment—t h a t the g overnment n eed not p r ove that J ohnson committed h is c rime for t h e benefit of King ’s g ang

so long as King d id so. See Maj. Opn. at 1 2

. T h a t i s incorre c t

. T h e statute “does not punish a defendant for the actions of associates.” People v

. Gardeley
, 14 Cal. 4th 605, 624 n .10 (199 6 )
, a brogated on other grounds by People v

. Sanchez
, 63 Cal. 4th 665 (2016). “[ R] ather[ ,] the act increases the punis hment for a defendant who committed a felony to aid or abet cr iminal conduct o f a g roup that has a s

a p ri m a ry function the commission of specified criminal
acts.

. . .” Id. California courts have not hesitated to overturnJ O H N S O N V

. M O N T G O M E R Y 21

such g ang enhancements u nder J ackson when evidence o f such aims— i.e.
, evidence of a motivating beneficial relationship between the d efendant’s criminal a cts and t h e identified g ang

—is lack i n g. S

ee P eople v. Perez
, 18 Cal. App. 5th 598, 606–14 (20 1 7 ) (collecting cases); People v

. Ramirez
, 244 Cal. App. 4th 800, 818–19 (201 6 ) ; R a mon , 175 Cal. App. 4th at 851 (2009).

No published case h as upheld a g ang enhancement f or a member of one g ang because his actions were taken “for the benefit of” a g ang unrelated to his own. I nstead, for ex ample, People v

. Garcia upheld a g ang enhancement a s to a member of one Hispanic g ang who committed a crime with t w o members of another Hispa n ic g a ng , w ho “apparently relied
upon and trusted him as if he were o ne o f them”; there, unlike in J ohnson’s c ase, “[ a] n ex p e r t w i t n esses

. . . testified that there w as a g reat deal of crossover b etween Hispanic criminal
street g ang s” in the relevant area. Garcia
, 244 Cal. App. 4th 1349, 1369 (2016). There w as no simila r t e s t imony h ere. The g ang ex pert stressed that King ’s and J o hnson’s g a ng s

w e r e distinct. And, as noted, to the limited ex tent h e

ex p lained why the two would commit a crime tog et h e r , his

ex p lanation relied entirely o n t he b asis of ordinary social acquaintance, not g ang membership.

IV.

This Court has an “oblig ation un d er Jackson to identify those rare occasions in which a properly instructed jury

may convict even when it can be said that no rational trier of fact could find g uilt bey ond a reasonable doubt.” United States v

. Nevils
, 5 98 F .3d 1158 (9th Cir. 2010) (alterations and internal quotation marks omitted). That oblig ation ex ists even under the deferential standards of the Anti-Terrorism and EffectiveJ O H N S O N V

. M O N T G O M E R Y 22

Death Penalty A ct, 28 U.S.C. § 2554(d)(1). And that oblig ation requires g ranting J ohnson’s habeas petition.

I n short, there was n o evidence indicating that J ohnson’s

c r i me would enhance someone else’s g ang ’s reputation f o r violence, and there was no evidence sug g esting that J ohnson committed the robberies “for the benefit” of a g ang to which he did not belong . I respectfully dissent.