NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT DAVID JOHNSON,

 Petitioner - Appellant,

v.

RAYMOND MADDEN,

 Respondent - Appellee.

No.14-55905

D.C. No. 5:12-cv-01580-JFW-SS

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

John F. Walter, District Judge, Presiding

Argued and Submitted May 2, 2016

Pasadena, California

Before: M. SMITH and NGUYEN, Circuit Judges, and WILKEN,** Senior District 

Judge.

Robert David Johnson appeals a district court order denying his habeas 

corpus petition. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

The California Supreme Court’s decision to deny Johnson’s ineffective 

 

*This disposition is not appropriate for publication and is not precedent except as 

provided by Ninth Circuit Rule 36-3.

**The Honorable Claudia Wilken, Senior District Judge for the U.S. District Court 

for the Northern District of California, sitting by designation.

FILED

JUN 24 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

assistance of counsel claim was not an unreasonable application of clearly 

established federal law. 28 U.S.C. § 2254(d). To obtain relief on his state court 

petition, Johnson was required to show “both that his counsel provided deficient 

assistance and that there was prejudice as a result.” Harrington v. Richter, 562 U.S. 

86, 104 (2011). A petitioner attempting to show that his counsel’s performance 

was deficient must overcome “a strong presumption that counsel’s representation 

was within the wide range of reasonable professional assistance.” Id. (internal 

quotation marks omitted). And to show prejudice, the petitioner must demonstrate 

that “[c]ounsel’s errors [were] so serious as to deprive the defendant of a fair trial, 

a trial whose result is reliable.” Id. (internal quotation marks omitted). Under the 

Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) , our review 

of the state court’s decision is “doubly” deferential—that is, if there is “any 

reasonable argument” that counsel’s performance was satisfactory, we must affirm.

Id. at 105.

Here, we need not determine whether Johnson’s counsel provided 

reasonable professional assistance; Johnson’s claim fails on the prejudice prong.

That is, Johnson fails to show that his counsel’s failure to consult a Riverside gang 

expert deprived him of a fair and reliable trial. Much of Johnson’s argument turns 
3

on his view that he and his co-perpetrators committed the underlying robbery not 

as gang members, but as childhood friends on their own frolic. He argues that a 

defense gang expert’s testimony about the distinctions between MDK, MD13, and 

RSSH would have undermined the state’s case that the crime was committed “in 

association with a criminal street gang.” For several reasons, the California 

Supreme Court could reasonably have rejected this argument.

First, Johnson’s habeas expert adds little to the evidence already presented at 

trial through the testimony of the state’s expert. For instance, the state’s expert 

testified about MDK’s split into MD13 and RSSH, and about the racial identities 

of the latter gangs. He further testified that MD13 and RSSH were separate gangs 

and that Johnson was a member of RSSH while his co-perpetrators were members 

of MD13. These are the same basic facts upon which Johnson now relies. Thus, the 

California Supreme Court could reasonably have concluded that additional gang 

expert testimony would not have changed the outcome of the case.

Second, and more importantly, the distinctions between the gangs are far 

from dispositive. Indeed, even if the jury had heard and credited all of the 

testimony by Johnson’s expert, it still could have found that the robbery was 

committed in association with either MDK or MD13. As for MDK, the evidence at 
4

trial undermined the habeas expert’s claim that MDK had ceased to exist by the 

time of the robbery. This evidence included the victim’s testimony that the 

perpetrators referred to MDK while committing the crime, as well as evidence that 

one perpetrator continued to sign letters with “MDK” after his name. 

Moreover, even if it were true that MDK no longer existed, the evidence also 

supported a finding that the crime was committed in association with MD13, which 

descended from MDK. Because California’s gang enhancement applies to crimes 

committed merely “in association with” a criminal street gang, it does not depend 

on Johnson’s own membership in the gang or his intent to further the gang’s 

interests. People v. Valdez, 55 Cal.4th 82, 132 (2012). Thus the jury could properly 

have found that Johnson committed the crime in association with MD13 even 

while he was a member of RSSH, and even if, as the habeas expert opines, RSSH 

never would have agreed to Johnson’s working with MD13. Indeed, the value of 

such an expert opinion is undermined by the simple fact that Johnson did commit a 

crime with MD13 members despite his own gang affiliation. And although 

Johnson portrays the robbery as a mere frolic unrelated to a gang, these coperpetrators were known by Johnson to belong to MD13. Ample evidence 

therefore supported the conclusion that Johnson’s commission of robbery with 
5

these four co-perpetrators was “in association with” MD13. The California 

Supreme Court could reasonably have determined that more expert testimony 

about the relationship between these gangs would not have altered this conclusion.

We are similarly unpersuaded by Johnson’s argument, relying on People v. 

Prunty, 355 P.3d 480 (Cal. 2015), that a defense gang expert would have 

highlighted the state’s failure to show that MD13 was a criminal street gang. While 

the predicate acts were committed only by MDK, not by MD13, the state’s expert 

testified that MD13 descended directly from MDK. In that respect, this case is 

unlike Prunty, where the state sought to deem one gang a “criminal street gang” by 

introducing evidence of predicate acts committed by gang subsets whose 

relationship to the gang at issue was unproven. Id. at 81. Under those 

circumstances, the court held that the state failed to show that the gang at issue had 

committed the predicate acts necessary to deem it a criminal street gang. Id. (“The 

critical shortcoming in the prosecution’s evidence was the lack of an associational 

or organizational connection between the two alleged Norteño subsets that 

committed the requisite predicate offenses, and the larger Norteño gang that Prunty 

allegedly assaulted Manzo to benefit.”) Here, in contrast, the relationship between 

MDK and MD13 was established at trial, and it was a direct lineage. The 
6

California Supreme Court could reasonably have determined that trial counsel’s 

failure to contest the evidence that MD13 was a criminal street gang was not 

prejudicial.

AFFIRMED.
1

Johnson v. Madden, No. 14-55905

WILKEN, District Judge, dissenting:

The California gang enhancement applies when an individual commits a 

felony “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). Notably, the first 

prong of the statute requires that the crime be committed in association with a 

“criminal street gang” while the second requires that the defendant act with the 

intent to further conduct by “gang members.” 

The fact that a defendant committed a crime with gang members does not 

satisfy the first prong. Indeed, the California Supreme Court has noted that the 

California State Legislature included the first prong to make “clear that a criminal 

offense is subject to increased punishment under the [gang enhancement] only if 

the crime is gang related.” People v. Albillar, 51 Cal. 4th 47, 60 (2010) (internal 

quotation marks omitted). “Not every crime committed by gang members is 

related to a gang” and “it is conceivable that several gang members could commit 

a crime together, yet be on a frolic and detour unrelated to the gang.” Id. at 62 

(internal citations omitted). 

While, in some cases, California courts have inferred that a crime was 

committed “in association with” a criminal street gang when the defendant 

FILED

JUN 24 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

knowingly committed the crime with a “fellow gang member,” those cases all 

involved members of the same gang acting together and many involved crimes 

against rival gang members. See, e.g., id. at 61; People v. Leon, 161 Cal. App. 4th 

149, 163 (2008); People v. Romero, 140 Cal. App. 4th 15 (2006). This case is 

different. There was no clear evidence that any of the men accompanying Johnson 

were members of the Riverside Skinheads (RSSH), the gang to which Johnson 

belonged. Moreover, there was no evidence that the victim of the crime was a 

member of a rival gang. That Johnson committed a crime with members of a 

different gang, against a non-gang member, raises no inference that the crime was 

gang-related.

An expert witness the defense could have engaged would have testified that 

members of the Riverside Skinheads and MD13, the gang affiliated with the 

Mexican Mafia to which Johnson’s co-perpetrators belonged, might have 

socialized with each other because they were childhood friends, but that members 

of one of the gangs would never commit a crime in association with or for the 

benefit of the other gang. 

Further, the prosecution made numerous erroneous statements of law with 

respect to the “in association with” requirement in its closing arguments, 

suggesting that the state need only prove that Johnson committed the crime in 

association with gang members instead of in association with a criminal street 
3

gang. Defense counsel failed to explain the difference in her closing argument. 

The majority appears to repeat the prosecutor’s mistake when it states that the 

value of any expert testimony on behalf of the defense “is undermined by the 

simple fact that Johnson did commit a crime with MD13 members despite his own 

gang affiliation.”

Even if the prosecution proved that Johnson committed the robbery in 

association with a gang, it had to prove that the gang at issue met the statutory 

requirements. The California Supreme Court has held that the gang enhancement 

requires that 

the “criminal street gang” the prosecution proves to exist be the 

same gang that the defendant sought to benefit (or which directed 

or associated with the defendant in connection with the crime.) 

This “sameness” requirement means that the prosecution must 

show that the group the defendant acted to benefit [and] the group 

that committed the predicate offenses . . . is one and the same.

People v. Prunty, 62 Cal. 4th 59, 80-81 (2015). Here, the predicate acts were 

committed by MDK and Johnson was a member of the Riverside Skinheads acting 

with members of MD13. Accordingly, for Johnson’s offense to qualify for the 

gang enhancement, the prosecution was required to prove “some associational or 

organizational connection” uniting MDK and MD13. Id. at 72. 

The majority assumes that “direct lineage” between MDK and MD13 is 

enough to satisfy Prunty’s sameness requirement. But the prosecution is required 

to present evidence that they have an “ongoing relationship--the kind of 
4

relationship that amounts to being part of the same group.” Id. at 83. Such an 

ongoing relationship would be impossible if, as a defense expert would have 

testified unequivocally, MDK had ceased to exist as early as 2000, three years 

before the robbery. Contrary to the majority’s view, this basic fact was not 

provided by the prosecution’s expert. Nonetheless, his testimony that MDK did 

exist at the time of the crime was weak. When asked, the expert said only that 

MDK “still exists because the MD13 came from MDK and RSSH came from 

MDK.” If the state's case is weak there is a greater likelihood that the result of the 

trial would have been different. 

The other evidence of MDK’s continuing existence that the majority points 

out was also weak. The robbery victim testified that at some point during the 

approximately four and a half hours that Johnson and the other men were in his 

apartment, one or more of the men “made reference to MDK.” This is not 

evidence that MDK still existed. Nor is an undated letter signed by one of the 

perpetrators with “MDK” after his name.

 It was crucial for effective counsel to oppose the gang enhancement 

because its application had extreme consequences for Johnson’s sentence. It 

increased the maximum sentence from a nine-year determinate sentence to a 

fifteen-year to life indeterminate sentence, which in turn was doubled to a thirty-
5

year to life sentence because the robbery was Johnson’s second “strike.” 

Johnson’s total sentence was forty-three years to life. 

It would not have been inconsistent for the defense to argue both that 

Johnson was factually innocent of the robbery and that the robbery was not 

committed in association with a street gang, especially not with his former gang 

MDK, which no longer existed. Johnson did not argue that he was not present at 

the time of the robbery, but rather that he went to the victim’s apartment with his 

friends to “party.” An argument that the gang enhancement should not apply 

would similarly be based on an argument that Johnson was “partying” with his 

friends, not intending to commit a crime in association with a criminal street gang. 

I would hold that it was both deficient and prejudicial for counsel to fail to

engage a gang expert familiar with gangs in Riverside and to fail to argue that the 

crime was not committed in association with any criminal street gang, particularly 

one that no longer existed. Any finding to the contrary would be an objectively 

unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984). 

Therefore, I would reverse the district court’s denial of the § 2254 petition and 

remand with instructions to grant the writ unless the state retries the gang 

enhancement issue or resentences without the enhancement.