FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONNELD JOHNSON,

Petitioner-Appellant,

v.

W. L. MONTGOMERY, Acting

Warden,

Respondent-Appellee.

No. 15-56007

D.C. No.

2:14-cv-04766-

AB-VBK

OPINION 

Appeal from the United States District Court

for the Central District of California

Andre Birotte, Jr., District Judge, Presiding

Argued and Submitted February 13, 2018

Pasadena, California

Filed August 15, 2018

Before: Marsha S. Berzon and Jay S. Bybee, Circuit

Judges, and John A. Woodcock, Jr.* District Judge.

Opinion by Judge Woodcock;

Partial Concurrence and Partial Dissent by Judge Berzon

* The Honorable John A. Woodcock, Jr., United States District Judge

for the District of Maine, sitting by designation.
2 JOHNSON V. MONTGOMERY

SUMMARY**

Habeas Corpus

The panel affirmed the district court’s denial of California

state prisoner Ronneld Johnson’s habeas corpus petition

challenging enhancements applied at sentencing for his

conviction for two counts of robbery.

Johnson argued that the evidence supporting an

enhancement for a gang-related crime was constitutionally

insufficient under Jackson v. Virginia, 443 U.S. 307 (1979). 

The panel held that it was objectively unreasonable for the

California Court of Appeal to conclude that the evidence was

sufficient for a reasonable jury to find the robbery was

committed “in association with” a gang, but that any error

regarding gang “association” was harmless because the

California Court of Appeal’s alternative conclusion—that the

evidence was sufficient for a reasonable jury to find the

robbery was committed “for the benefit of” a gang—was not

objectively unreasonable. 

Johnson also argued that an enhancement for a prior

nonjury juvenile adjudication violates Apprendi v. New

Jersey, 530 U.S. 466 (2000). The panel held that even

assuming that the California Supreme Court should have

decided that Johnson’s Apprendi claims fell within an

exception to the In re Dixon procedural bar, Johnson would

not have been entitled to a reduced sentence because the

California Supreme Court would have applied People v.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
JOHNSON V. MONTGOMERY 3

Nguyen, 209 P.3d 946 (Cal. 2009) (interpreting Apprendi’s

exception for prior convictions to cover nonjury juvenile

adjudications), and reasonably upheld the sentencing

enhancement based on Johnson’s juvenile conviction. 

Concurring in part and dissenting in part, Judge Berzon

agreed with the majority as to Johnson’s Apprendi claim, but

did not agree that a rational jury could have found that

Johnson committed robbery for the benefit of a gang totally

distinct from his own.

COUNSEL

Michael T. Drake (argued), Research and Writing Attorney;

Hilary L. Potashner, Federal Public Defender; Office of the

Federal Public Defender, Los Angeles, California; for

Petitioner-Appellant.

Charles Shang-Rei Lee (argued) and Kathy S. Pomerantz,

Deputy Attorneys General; Kenneth C. Byrne, Supervising

DeputyAttorneyGeneral; Lance E. Winters, Senior Assistant

AttorneyGeneral; Gerald A. Engler, Chief Assistant Attorney

General; Xavier Becerra, Attorney General; Office of the

Attorney General, Los Angeles, California; for RespondentAppellee.
4 JOHNSON V. MONTGOMERY

OPINION

WOODCOCK, District Judge:

Ronneld Johnson, a California state prisoner, appeals the

district court’s denial of his petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254 challenging his

sentencing enhancement for a prior nonjury juvenile

conviction and his sentencing enhancement for a gang-related

crime. Johnson argues that the evidence supporting the gang

enhancement was constitutionally insufficient under Jackson

v. Virginia, 443 U.S. 307 (1979), and he argues that the

enhancement for his nonjury juvenile conviction violates

Apprendi v. New Jersey, 530 U.S. 466 (2000). Because the

evidence was sufficient to establish that the robbery was “for

the benefit of” a gang, and because the juvenile conviction

claim was procedurally barred and sentencing enhancements

based on nonjury juvenile convictions do not violate any

clearly established federal law as determined by the United

States Supreme Court, we affirm.

I

Background

A. The Robbery

At roughly 9:00 AM on November 9, 2011, Ronneld

Johnson and Jonathan King twice drove by a house in the

area of 111th and Anzac or Grape Streets in Southeast Los

Angeles. Two men were doing landscaping work at the

house. Johnson and King then pulled into an alley next to the

house, exited the car, and approached the other men. Johnson

pointed a semiautomatic gun at the faces of the victims, first
JOHNSON V. MONTGOMERY 5

at one, and then he hopped a small fence to point the gun at

the other. Johnson and King took their money, a cell phone,

and a gold chain. During the robbery, either Johnson or King

said, “Hurry up cuz,” which was either directed at the other

defendant or at one of the victims. Johnson and King then

got back in the car and left.

In December 2011, the State charged both Johnson and

King with two counts of robbery each, including gang and

gun enhancement allegations. In March 2012, a jury

convicted Johnson and King and found the gang and gun

enhancements to be true.

B. The Gang Evidence

The prosecution called an expert witness, Officer Jose

Carias, to testify about the nature of criminal street gangs. 

For example, Officer Carias explained that gang members

sometimes commit crimes so that other members will

“respect” them, and he testified that gangs often encourage or

require their members to “put in work”—meaning commit

crimes—in order to ensure the gang is respected and feared

by others in the community, elevating the status of the gang

and discouraging witnesses from reporting information to the

police. He said that “cuz” is a term typically used by Crip

gangs, and is not a term typically used by members of other

gangs, like Bloods or Hispanic gangs. He also testified that

it is not uncommon for members of different gangs to commit

crimes together after forming ties through family, school, or

juvenile detention.

King was an admitted member of a gang, the Project

Watts Crips. He had numerous tattoos indicating

membership in that gang, including some on his face and
6 JOHNSON V. MONTGOMERY

hands. Johnson had self-identified as a member of the 58th

Street Neighborhood Crips in 2006, but the tattoos on his

body, including his hands, suggest he was a member of a

different gang, the East Coast Crips. Robbery is one of the

primary activities of the Project Watts Crips. The robbery

occurred within the area the Project Watts Crips claims as its

territory. The territory of the East Coast Crips is roughly four

or five miles away.

After a lengthy hypothetical scenario corresponding to the

facts of Johnson and King’s case, the gang expert opined that

the individuals “committed a crime together in concert and

thus in association with another gang member,” and he

concluded that the crime primarily benefited the Project

Watts Crips. The expert relied on the following factors: that

both perpetrators were members of gangs, they committed the

crime within Project Watts Crips territory, they used the word

“cuz,” they drove by the victims multiple times indicating a

level of sophistication, theyseemed comfortable because they

took the time to jump a fence and rob a second person, and

the crime occurred in broad daylight, without any attempt to

hide their identities.

C. The Post-Trial Proceedings

On April 4, 2012, the trial court sentenced Johnson to an

aggregate term of imprisonment of twenty-eight years, eight

months. The sentence was based on the robbery, the gang

and gun enhancements, and a prior strike from a juvenile

conviction, all to run consecutively. The sentencing court

also found Johnson in violation of probation in another case,

and sentenced him to an additional consecutive 16-month

term of imprisonment.
JOHNSON V. MONTGOMERY 7

On October 4, 2012, Johnson filed a direct appeal. The

California Court of Appeal denied his appeal on May 15,

2013. Johnson sought review from the California Supreme

Court, but it denied review without substantive comment on

July 24, 2013.

On January 6, 2014, Johnson filed a state habeas petition. 

The California Court of Appeal denied the petition on

January 23, 2014. On February 18, 2014, Johnson filed a

habeas petition in the California Supreme Court. It denied

Johnson’s petition on May 14, 2014.

On June 20, 2014, Johnson filed a petition for a writ of

habeas corpus in the United States District Court for the

Central District of California. The district court denied

Johnson’s habeas petition on June 8, 2015.

II

The Sufficiency of the Evidence for the Gang Enhancement

A. The Standard of Review

“Other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed

statutory maximum” or “increases the mandatory minimum

[sentence] is an ‘element’ that must be submitted to the jury”

and proved beyond a reasonable doubt. Apprendi, 530 U.S.

at 490; Alleyne v. United States, 570 U.S. 99, 103 (2013). 

Under Jackson, a due process claim challenging the

sufficiency of the evidence “can only succeed when, viewing

all the evidence in the light most favorable to the prosecution,

no rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Emery v.
8 JOHNSON V. MONTGOMERY

Clark, 643 F.3d 1210, 1213 (9th Cir. 2011). “When assessing

a petition for a writ of habeas corpus, we thus ‘look to [state]

law only to establish the elements of [the crime] and then turn

to the federal question of whether the [state] court was

objectively unreasonable in concluding that sufficient

evidence supported [its decision].’” Boyer v. Belleque,

659 F.3d 957, 965 (9th Cir. 2011) (alterations in original)

(quoting Juan H. v. Allen, 408 F.3d 1262, 1278 n.14 (9th Cir.

2005)). In addition to Jackson’s already deferential standard,

a second level of deference applies under AEDPA. For the

petitioner to prevail, we must conclude that the state court’s

determination that a rational jury could have found each

required element proven beyond a reasonable doubt was not

just wrong but was objectively unreasonable. Boyer,

659 F.3d at 964–65.

B. The California Gang Enhancement

California’s gang 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

gang, with the specific intent to promote, further, or assist in

any criminal conduct by gang members.” Cal. Penal Code

§ 186.22(b)(1). The first prong requires that the crime be

related to a gang, and the second prong that the defendant

specifically intend to assist a gang member’s crime. See

People v. Albillar, 244 P.3d 1062, 1070 (Cal. 2010). Johnson

does not challenge the sufficiency of the evidence regarding

the specific intent prong. Rather, he challenges the California

appellate court’s conclusions that there was sufficient

evidence that the robbery he committed with King was “in

association with” and “for the benefit of” a gang. “Because

the first prong is worded in the disjunctive, [the] gang

enhancement may be imposed” based on either gang
JOHNSON V. MONTGOMERY 9

association or benefit. People v. Weddington, 200 Cal. Rptr.

3d 799, 813 (Cal. Ct. App. 2016).

1. It was objectively unreasonable to conclude that the

evidence was sufficient for a reasonable jury to find

the robbery was committed “in association with” a

gang.

“Committing a crime in concert with known gang

members can be substantial evidence that the crime was

committed in ‘association’ with a gang.” People v. Garcia,

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

committed “in association with” the gang if the “defendants

relied on their common gang membership and the apparatus

of the gang” when they committed the crime. Id. at 414

(quoting Albillar, 244 P.3d at 1071). In Albillar, the

California Supreme Court focused on the act of “committing

a crime with fellow gang members. . . .” 244 P.3d at 1072. 

Albillar teaches that it is not sufficient to simply commit any

act in concert with a gang member, rather it is acting in

concert with individuals of “common gang membership” that

satisfies the “in association with” element of the gang

enhancement. Id.

The California Court of Appeal concluded that the

evidence was sufficient to support the gang enhancement

based on the “in association with” component because

Johnson and King were both gang members, coupled with

“the manner in which the robberies were committed, which

indicated appellants acted in concert.” The court also pointed

to the expert’s testimony that “gang members’ personal ties

spill over into street crime.” The court’s conclusions were

unreasonable because Johnson and King did not act “in

concert” with “fellow” or “common” gang members. 
10 JOHNSON V. MONTGOMERY

Johnson and King were members of different gangs, with

different enrollment and territories.

It is also not enough to say that Johnson and King were

both Crips. Under California law, the prosecution cannot

group distinct gangs or sets within a larger criminal outfit

unless there is “some associational or organizational

connection uniting 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 group distinct gangs together a “bait-andswitch” and concluding there was insufficient evidence of

“association” when the Defendant, a member of the Jim

Town gang, committed a crime “with the assistance of three

friends who were members of other gangs, not the Jim Town

gang.”).

Nevertheless, any error regarding gang “association” was

harmless because the California Court of Appeal’s alternate

conclusion—that there was sufficient evidence the robbery

was committed “for the benefit of” a gang—was not

objectively unreasonable. See infra.

2. It was not objectively unreasonable to conclude that

the evidence was sufficient for a reasonable jury to

find the robbery was committed “for the benefit of” a

gang.

Under California law, “[e]xpert opinion that particular

criminal conduct benefited a gang by enhancing its reputation

for viciousness can be sufficient to raise the inference that the

conduct was ‘committed for the benefit of . . . a [ ] criminal

street gang’ within the meaning of section 186.22(b)(1).” 

Albillar, 244 P.3d at 1073. “[T]he typical close case is one in
JOHNSON V. MONTGOMERY 11

which one gang member, acting alone, commits a crime.” 

People v. Leon, 73 Cal. Rptr. 3d 786, 796 (Cal. Ct. App.

2008) (quoting People v. Morales, 5 Cal. Rptr. 3d 615, 632

(Cal. Ct. App. 2003)).

As in many cases, the gang expert here testified that

violent crimes benefit a gang by increasing the intimidation

in the community, lowering reporting rates among witnesses,

and allowing the criminal enterprise to continue free from

police restraint. The gang expert also opined that such crimes

bestow “respect” on the individual and elevate the status of

the gang. Even so, the testimony of a gang expert, without

more, “is insufficient to find an offense gang related.” People

v. Ochoa, 102 Cal. Rptr. 3d 108, 114 (Cal. Ct. App. 2009). 

“[T]he record must provide some evidentiary support, other

than merely the defendant’s record of prior offenses and past

gang activities or personal affiliations, for a finding that the

crime was committed for the benefit of . . . a criminal street

gang.” Id. (quoting People v. Martinez, 10 Cal. Rptr. 3d 751,

757 (Cal. Ct. App. 2004)).

Here, there was sufficient evidence to establish the

following facts supporting the gang enhancement and the

expert’s testimony: (1) the robbery was a violent crime,

committed with a gun pointed directly into the face of a

victim, (2) the robbery occurred within the territory of the

Project Watts Crips, (3) robbery is one of the primary

activities of the Project Watts Crips, (4) the robbery occurred

in broad daylight, (5) the robbery was brazen because it

involved multiple victims and occurred at a time of the day,

roughly 9:00 a.m., when neighbors were most likely to

observe the crime; (6) King had numerous tattoos, including

some visible on his face and hands, indicating membership in

the Project Watts Crips, (7) during the robbery, either
12 JOHNSON V. MONTGOMERY

Johnson or King used the term “cuz,” a term used by

members of Crips gangs, and (8) the victims were ordinary

members of the public with no personal relationship with the

defendants or gangs.

Even though Johnson and King never explicitly

mentioned King’s gang or flashed gang signs, it was not

objectively unreasonable to conclude that a rational jury

could find this cumulative evidence sufficient to show the

robbery was committed “for the benefit of” King’s gang. The

outward manifestations of gang involvement—King’s visible

tattoos, the use of gang-affiliated lingo, the brazen daylight

timing, and the apparent comfort with being observed—were

sufficient for a jury to infer that the crime was meant to send

a message to the public about gang brutality and control. 

Those outward signs also pointed to the Project Watts Crips

specifically—King’s visible tattoos indicated membership in

that gang, the lingo was associated with Crips gangs, the

crime occurred in that gang’s territory, and robberies are one

of that gang’s primary criminal activities.

A California appellate court considered Johnson’s

arguments that the robbery was not “for the benefit of”

King’s gang and concluded the underlying facts were

sufficient to support the expert testimony and establish gang

benefit under California law. Johnson does not dispute

whether the evidence was sufficient under Jackson to

establish the key facts, rather, he questions whether those

uncontested facts are legally 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. McGuire, 502 U.S. 62, 63 (1991) (“[I]t is not the

province of a federal habeas court to reexamine state-court
JOHNSON V. MONTGOMERY 13

determinations on state-law questions.”). The state court

decision was not objectively unreasonable.1

III

The Prior Nonjury Juvenile Adjudication

Apprendi held that any fact used to increase the maximum

penalty for a crime, “[o]ther than the fact of a prior

1 We note that this decision was not incompatible with other

California caselaw. Habeas relief may lie when a misapplication of state

law is weighty enough to rise to the level of a due process violation. See

Estelle, 502 U.S. at 71–73. When we “look to [state] law . . . to establish

the elements of [the crime],” Boyer, 659 F.3d at 965, that includes prior

state cases because, were a state court to misapply the elements or

reinterpret the elements in a wildly inconsistent manner, recasting

sufficiency ofthe evidence questions as matters ofstate law interpretation,

it would doubtless transgress Jackson and due process. But this was far

from such a case.

The state court’s decision was not objectively unreasonable because

even if it involved a slightly novel application of the gang enhancement

elements, that interpretation was in harmony with prior California

precedent, notso discordant as to undermine the fundamental federal right

to proof of every element beyond a reasonable doubt. Nothing in the prior

caselaw prohibited application of the enhancement when the defendant

was not a member of the gang that the crime was committed to benefit. 

See Garcia, 199 Cal. Rptr. 3d at 414–16; Morales, 5 Cal. Rptr. 3d at 632. 

Those California cases reversing the enhancement are distinguishable. 

See e.g., People v. Rios, 165 Cal. Rptr. 3d 687, 712–14 (Cal. Ct. App.

2013) (nonviolent possession crime); Ochoa, 102 Cal. Rptr. 3d at 111,

117–18 (at night, outside gang territory, no observable signs of gang

affiliation); People v. Ramirez, 198 Cal. Rptr. 3d 318, 322–23 (Cal. Ct.

App. 2016) (personal dispute between neighbors); Franklin, 203Cal.Rptr.

3d at 880–82 (prior romantic relationship with victim); People v. Perez,

226 Cal. Rptr. 3d 820, 826–27 (Cal. Ct. App. 2017) (outside gang

territory, no observable signs of gang affiliation).
14 JOHNSON V. MONTGOMERY

conviction,” must be submitted to a jury and proved beyond

a reasonable doubt. 530 U.S. at 490. The California

Supreme Court interprets Apprendi’s exception for prior

convictions to cover nonjury juvenile adjudications. People

v. Nguyen, 209 P.3d 946, 953 (Cal. 2009). This court reached

the opposite conclusion. United States v. Tighe, 266 F.3d

1187, 1194 (9th Cir. 2001). But our interpretation of

Apprendi “does not represent clearly established federal law

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

as required to overturn a state court decision regarding a

federal claim under the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA). Boyd v. Newland, 467 F.3d

1139, 1152 (9th Cir. 2006) (quoting 28 U.S.C. § 2254(d)(1)).

The California SupremeCourt denied Johnson’s Apprendi

claim in his habeas petition as procedurally barred, citing In

re Dixon, 264 P.2d 513, 514 (Cal. 1953). In California, “[t]he

general rule is that . . . the writ will not lie where the claimed

errors could have been, but were not, raised upon a timely

appeal from a judgment of conviction.” Id. The United

States Supreme Court held that California’s Dixon rule is an

adequate state ground to bar federal habeas review of a

petitioner’s claim. Johnson v. Lee, 136 S. Ct. 1802, 1804

(2016) (per curiam).

Johnson contends that the California Supreme Court

misapplied its own procedural rule because his Apprendi

claim falls within a recognized exception to Dixon.

2

Although we examine 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 reject a state court’s use of a

2

Johnson does not attempt to demonstrate cause and prejudice for the

procedural default.
JOHNSON V. MONTGOMERY 15

procedural bar on the ground that it was erroneously applied.” 

Sivak v. Hardison, 658 F.3d 898, 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 claim fell within an exception to

the Dixon bar, Johnson would not have been entitled to a

reduced sentence because the California Supreme Court

would have applied Nguyen and reasonably upheld the

sentencing enhancement based on Johnson’s juvenile

conviction.

IV

Conclusion

For the reasons set forth above, the district court is

AFFIRMED.

BERZON, Circuit Judge, concurring in part and dissenting in

part:

I agree with the majority as to Ronneld Johnson’s claim

under Apprendi v. New Jersey, 530 U.S. 466 (2000). But I do

not agree that a rational jury could have found that Johnson

committed robbery for the benefit of a gang totally distinct

from his own.

California law on sentencing enhancements for gang

activityis broad, but—as California courts have explained—it

is not boundless. Here, taking into account the “double dose

of deference” we owe to a state court’s resolution of a

sufficiency of the evidence claim, Long v. Johnson, 736 F.3d
16 JOHNSON V. MONTGOMERY

891, 896 (9th Cir. 2013), there was simply no evidence that

Johnson committed robbery either “in association with” or

“for the benefit of” his co-defendant’s gang. Cal. Pen. Code

§ 186.22(b)(1). I would thus grant Johnson’s habeas claim

under Jackson v. Virginia, 443 U.S. 307 (1979). Because the

majority does not, I dissent.

I.

I begin with some common ground. The California Court

of Appeal held that, in light of Johnson’s and his codefendant

King’s “known gang affiliation,” the fact that they “acted in

concert,” and evidence that “gang members’ personal ties

spill over into street crime, . . . [were] sufficient to establish

that each defendant committed the robberies in association

with a gang member.” In so doing, the Court misunderstood

a basic premise of the California gang enhancement statute,

as the majority opinion holds. Maj. Opn. at 9–10.

“Under Jackson, federal courts must look to state law for

‘the substantive elements of the criminal offense.’” Coleman

v. Johnson, 566 U.S. 650, 655 (2012) (internal quotation

marks omitted). Here, the “association with” prong of the

relevant California gang enhancement statute is met when

defendants “c[o]me together as gang members” to commit a

crime, thus relying on “their common gang membership.” 

People v. Albillar, 51 Cal. 4th 47, 62 (2010).

There was no “common gang membership” in this case:

Johnson was a member of the East Coast Crips, while King

was a member of the Project Watts Crips. There was no

evidence that the defendants’ gangs had any overlap in

members or activities. Instead, the gang expert testified that:

the Project Watts Crips’ “primary rivals” included three other
JOHNSON V. MONTGOMERY 17

Crips gangs; he disagreed with the proposition that “all Crip

gangs or sets get along with other Crip sets”; and he agreed

that, “even though they’ve adopted the same color, if you

will, or the same title, Crips, it’s been [his] experience that,

even within that larger group, there’s going to be some rivalry

and infighting.”

Because the defendants were in different gangs, and there

was no evidence that the different gangs associated with one

another, no rational jury could have found that King and

Johnson acted in association with a single gang.

II.

The Court of Appeal held, in the alternative, that there

was sufficient evidence under Jackson that Johnson

committed the robberies “for the benefit of” King’s gang. 

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

hold this conclusion as well objectively unreasonable.

Under California law, a crime can benefit a gang if it

“enhanc[es]” the gang’s “reputation for viciousness.” 

Albillar, 51 Cal. 4th at 63. But, here, even the evidence that

King committed the robberies to benefit his own gang’s

reputation was flimsy. The gang expert opined that the

robberies benefitted the Project Watts Crips in two ways: by

“creat[ing] a sense of fear and intimidation with the

community,” thereby “prevent[ing] citizens from coming

forward and reporting crimes like this”; and by “bestow[ing]

a certain amount of respect on” and “elevat[ing] the status of

the gang itself.” The expert rested his conclusion exclusively

on evidence that King was a member of the Project Watts

Crips, and that robberies were committed with “comfort” in

the territory of the Project Watts Crips “in broad daylight,”
18 JOHNSON V. MONTGOMERY

while one of the defendants used the word “cuz,” a word the

expert represented as particular to “Crip gang members.”

There is an obvious gap between the expert’s opinion and

the evidence introduced to support it: “[T]here was no

evidence that . . . any of the . . . persons who witnessed the

crime knew that [Project Watts Crips] gang members or

affiliates were involved. Therefore, the crime could not have

enhanced respect for the gang members or intimidated others

in their community . . . .” In re Daniel C., 195 Cal. App. 4th

1350, 1363 (2011). King or Johnson used a word generically

associated with all Crips gang subsets, including the Project

Watts Crips’ rivals. While King had Project Watts Cripsrelated tattoos, neither victim saw them. Even if the victims

had seen King’s tattoos, there was no evidence that they

would have been able to associate them with the Project

Watts Crips gang. The tattoos do not obviously mean

anything to a layperson—theycontain the words “Funny” and

“Side,” the letters “P,” “J,” and “RIP,” and abstract symbols.1

And the fact that the robbery was committed in Project Watts

Crips territory cannot, on its own, support a link between the

robbery and the gang’s reputation. See People v. Ramon,

175 Cal. App. 4th 843, 851–52 (2009). On that logic, any

robbery committed in the territory, even if it is unconnected

to a gang or connected to a rival Crips gang, enhances the

Project Watts Crips’ reputation.

1 Such tattoo evidence is fundamentally unlike that in the most

relevant California case, in which the “for the benefit” prong was met

despite “no one call[ing] out the gang’s name”; in that case, “the

assailants’ identity as Carpas gang members was obvious,” because the

“[a]ppellant had the word ‘Carpas’ tattooed across his upper lip.” People

v. Galvez, 195 Cal. App. 4th 1253, 1261 (2011).
JOHNSON V. MONTGOMERY 19

The majority places great weight on the “outward

manifestations of gang involvement” displayed by both King

and Johnson. Maj. Opn. at 12. This reasoning ignores the

fact that such signs did not, and could not, point to affiliation

with the Project Watts Crips in particular, and thus could not

benefit that gang by enhancing its reputation. To the extent

Johnson displayed signs of gang membership generally,

neither California law, nor due process, permits Johnson to be

subject to a sentence enhancement for benefitting a particular

gang by enhancing its reputation because he looked like and

sounded like someone who was in any gang. A general aura

of “gangness”—even if broken down in a numbered

list—cannot establish a particular benefit to a particular gang.

The Court of Appeal, and today’s opinion, sidestep the

fundamental question of how, exactly, the Project Watts

Crips’ reputation in particular could have been affected by the

crime when there was no evidence indicating that onlookers

could connect the Project Watts Crips to it. The majority

appears persuaded 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 gang members to get around the gang enhancement.”

To the degree this concern constitutes a factual finding, it

is flatly unreasonable. Defendants need not self-identify as

gang members to commit a crime for the benefit of a gang;

they could commit a crime to fund a gang, or to further its

other illegal activities, while maintaining steadfast secrecy. 

See, e.g., People v. Gonzales, 232 Cal. App. 4th 1449,

1466–67 (2015). But if the prosecutor’s theory is that the

defendants intended to benefit a gang by enhancing its

reputation for violence, surely there must be some way for the

violent crime’s victims or onlookers to connect the particular
20 JOHNSON V. MONTGOMERY

defendant’s actions to that gang, either through selfidentification or some other means. If the onlookers cannot

make that connection, and there is no non-reputational benefit

to the gang, due process, as well as California law, require

that defendants not receive a gang enhancement.

III.

Even if the evidence barely supported King’s sentence

enhancement, there was just no evidence introduced as to

why Johnson, a member of one gang, would seek to promote

the reputation of a different gang.

The gang expert suggested that it was “not uncommon”

for members of different gangs to commit crimes together

because they “form[] ties” at school, through family, or at

juvenile hall. In other words, he opined that members of

different gangs commit crimes together because they know

each other. That is not an opinion or evidence that they

commit crimes together because they seek to benefit one

another’s gangs.

The majority’s result implies that Johnson’s motives are

of no moment—that the government need not prove that

Johnson committed his crime for the benefit of King’s gang

so long as King did so. See Maj. Opn. at 12. That is

incorrect. The statute “does not punish a defendant for the

actions of associates.” People v. Gardeley, 14 Cal. 4th 605,

624 n.10 (1996), abrogated on other grounds by People v.

Sanchez, 63 Cal. 4th 665 (2016). “[R]ather[,] the act

increases the punishment for a defendant who committed a

felony to aid or abet criminal conduct of a group that has as

a primary function the commission of specified criminal

acts. . . .” Id. California courts have not hesitated to overturn
JOHNSON V. MONTGOMERY 21

such gang enhancements under Jackson when evidence of

such aims—i.e., evidence of a motivating beneficial

relationship between the defendant’s criminal acts and the

identified gang—is lacking. See People v. Perez, 18 Cal.

App. 5th 598, 606–14 (2017) (collecting cases); People v.

Ramirez, 244 Cal. App. 4th 800, 818–19 (2016); Ramon,

175 Cal. App. 4th at 851 (2009).

No published case has upheld a gang enhancement for a

member of one gang because his actions were taken “for the

benefit of” a gang unrelated to his own. Instead, for example,

People v. Garcia upheld a gang enhancement as to a member

of one Hispanic gang who committed a crime with two

members of another Hispanic gang, who “apparently relied

upon and trusted him as if he were one of them”; there, unlike

in Johnson’s case, “[a]n expert witnesses . . . testified that

there was a great deal of crossover between Hispanic criminal

street gangs” in the relevant area. Garcia, 244 Cal. App. 4th

1349, 1369 (2016). There was no similar testimony here. 

The gang expert stressed that King’s and Johnson’s gangs

were distinct. And, as noted, to the limited extent he

explained why the two would commit a crime together, his

explanation relied entirely on the basis of ordinary social

acquaintance, not gang membership.

IV.

This Court has an “obligation under 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 guilt beyond a reasonable doubt.” United States v.

Nevils, 598 F.3d 1158 (9th Cir. 2010) (alterations and internal

quotation marks omitted). That obligation exists even under

the deferential standards of the Anti-Terrorism and Effective
22 JOHNSON V. MONTGOMERY

Death Penalty Act, 28 U.S.C. § 2554(d)(1). And that

obligation requires granting Johnson’s habeas petition.

In short, there was no evidence indicating that Johnson’s

crime would enhance someone else’s gang’s reputation for

violence, and there was no evidence suggesting that Johnson

committed the robberies “for the benefit” of a gang to which

he did not belong. I respectfully dissent.