Emery v. Clark

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RUBEN ANTHONY EMERY,  No. 08-55249
Petitioner-Appellant, D.C. No.
v.  CV-07-02237-
KEN CLARK, SJO(CT)
Respondent-Appellee.
 ORDER

Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding

Argued and Submitted
December 10, 2009—Pasadena, California

Filed May 13, 2010

Before: Cynthia Holcomb Hall and Barry G. Silverman,
Circuit Judges, and Suzanne B. Conlon, District Judge.*

COUNSEL

Vivian A. Fu, San Francisco, California, for the petitioner-
appellant.

James William Bilderback, II, Supervising Deputy Attorney
General, Los Angeles, California, for the respondent-appellee.

*The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.

6887
6888 EMERY v. CLARK
ORDER CERTIFYING DETERMINATIVE
QUESTIONS OF STATE LAW
TO THE CALIFORNIA SUPREME COURT

HALL, Circuit Judge:

We respectfully ask the Supreme Court of California to
exercise its discretion to decide the certified questions set
forth below pursuant to rule 8.548 of the California Rules of
Court.

I. Administrative Information

We provide the following information in accordance with
rule 8.548(b)(1) of the California Rules of Court:

The title of the case is Ruben Anthony Emery, Petitioner-
Appellant v. Ken Clark, Respondent-Appellee, and it is
assigned Ninth Circuit Case No. 08-55249.

The name and address of counsel for Petitioner Emery is
Vivian A. Fu, P.O. Box 460374, San Francisco, California
94146.

The name and address of counsel for Respondent Clark is
James William Bilderback, II, Supervising Deputy Attorney
General, Office of the California Attorney General, 300 S.
Spring St., Los Angeles, California 90013.

If the California Supreme Court grants this request for cer-
tification, state prisoner Ruben Anthony Emery should be
deemed the petitioner. After being convicted of special cir-
cumstances murder and attempted robbery with criminal
street gang enhancements, and exhausting his direct appeal
and state habeas remedies, Emery filed a petition for writ of
habeas corpus in the United States District Court for the Cen-
tral District of California, Case No. CV-07-02237-SJO(CT).
He thereafter obtained a certificate of appealability pursuant
 EMERY v. CLARK 6889
to 28 U.S.C. § 2253(c) and Ninth Circuit Rule 22-1(d), and
timely filed a notice of appeal in this court. Emery is, thus, the
petitioner and appellant before our court.

II. Certified Questions of State Law

We certify to the California Supreme Court the following
questions of state law that are now before us, and as to which
there is no controlling authority:

1. Does California’s criminal street gang enhancement
statute, in particular the element of “specific intent to pro-
mote, further, or assist in any criminal conduct by gang mem-
bers” in California Penal Code section 186.22(b)(1),1 require
proof that the defendant specifically intended to promote, fur-
ther, or assist in other criminal gang activity, apart from the
offense of conviction? See Garcia v. Carey, 395 F.3d 1099,
1100-01, 1103-04 (9th Cir. 2005); Briceno v. Scribner, 555
F.3d 1069, 1078-83 (9th Cir. 2009); cf. People v. Romero, 140
Cal.App.4th 15, 19 (2006); People v. Hill, 142 Cal.App.4th
770, 774 (2006); People v. Vazquez, 178 Cal.App.4th 347,
353-55 (2009).

2. Is gang expert testimony tied to the facts of the case—
regarding the centrality of “respect” in gang culture, and how
the defendant’s use of lethal force to avenge a minor slight to
a member of an affiliated gang would enhance the “respect”
he gets from other gang members, raise his status within the
gang hierarchy, and teach the community not to interfere with
even the most minor criminal activities of his fellow gang
members—sufficient to satisfy the requirement that the mur-
der was committed with the “specific intent to promote, fur-
ther, or assist in any criminal conduct by gang members”
within the meaning of section 186.22(b)(1)? See Vazquez, 178
Cal.App.4th at 350-51, 353-55; Hill, 142 Cal.App.4th at 772,
1
All further undifferentiated section references are to the California
Penal Code.
6890 EMERY v. CLARK
774; cf. People v. Gardeley, 14 Cal.4th 605, 612-13, 619
(1997); but see Briceno, 555 F.3d at 1078-79.

3. Does evidence that the defendant committed the
attempted robbery and murder in concert with the brother of
a young gang member, whom the victim allegedly “disre-
spected,” satisfy the requirement that the crimes were com-
mitted with the specific intent to “assist in any criminal
conduct by gang members” within the meaning of section
186.22(b)(1)? People v. Villalobos, 145 Cal.App.4th 310, 322
(2006); Romero, 140 Cal.App.4th at 19-20; People v. Mora-
les, 112 Cal.App.4th 1176, 1198 (2003); see also Briceno,
555 at 1084-86 (Wardlaw, J., dissenting); cf. Briceno, 555
F.3d at 1081, n.4.

The phrasing of the questions set forth above should not
restrict the California Supreme Court’s consideration of the
issues involved in this matter, and that Court may reformulate
the questions. We will accept the decision of the California
Supreme Court on any of these questions, each of which
could determine the outcome of this matter. See Aceves v. All-
state Ins. Co., 68 F.3d 1160, 1164 (9th Cir. 1995) (holding
that the Ninth Circuit is bound by the California Supreme
Court’s interpretation of California law).2
2
We realize that the California Supreme Court currently has pending on
review a case, People v. Albillar, Cal. Sup. Ct. No. S163905, in which the
Court limited review to the following issues: “Did substantial evidence
support defendants’ convictions under Penal Code section 186.22, subdivi-
sion (a), and the true findings with respect to the enhancements under
Penal Code section 186.22, subdivision (b)?” The Court also recently
requested supplemental letter briefs on the question “whether the phrase
felonious criminal conduct, appearing in Penal Code section 186.22, sub-
division (a), should be interpreted to mean felonious criminal gang-related
conduct.”
We recognize that the California Supreme Court has plenary authority
to decide any issues raised or fairly included in a petition for review or
answer and, with an opportunity for briefing and argument by the parties,
any issues presented by the case that are not raised or fairly included in
 EMERY v. CLARK 6891
III. Factual and Procedural Background

Emery was convicted after a jury trial of the attempted rob-
bery and first degree murder of Henry Chow. The jury found
true the special circumstances that: (1) Emery was an active
participant in a criminal street gang and the murder was car-
ried out to further the activities of the gang, § 190.2(a)(22));
and (2) Chow was killed during a robbery, § 190.2(a)(17)(A).
The jury also found that Emery committed both crimes for the
benefit of, and in association with, a criminal street gang, with
the specific intent to promote, further or assist in criminal
conduct by gang members. § 186.22(b)(1). Finally, the jury

the petition. Cal. R. Ct. 8.516(b). We have reviewed the petitions for
review and other briefs filed in Albillar, and further realize it is possible
the Court will soon reach and decide one or more of the issues we are pro-
posing for certification, regarding the proper interpretation and application
of the “specific intent” element of the section 186.22(b)(1) gang enhance-
ment.
As we read the parties’ briefs, however, we do not understand the appel-
lants in Albillar to be raising our first certified question, regarding the
requirement for proof that the defendant specifically intended to promote,
further, or assist in other criminal gang activity, apart from the offense of
conviction, under the holding of this court in Garcia, 395 F.3d at 1101-04,
as recently reaffirmed in Briceno, 555 F.3d at 1078-83. Moreover, while
the appellants and the respondent in Albillar discuss Briceno, and arguably
raise our second and third certified questions regarding what constitutes
relevant gang expert testimony, and whether action in concert with a
known gang member or associate can support a jury finding of “specific
intent to . . . assist in any criminal conduct by gang members,” the appel-
lants apparently disclaim any reliance on Garcia and Briceno and suggest
that the California Supreme Court need not resolve the sharp conflict
between the Ninth Circuit and California Courts of Appeal on these issues.
See Appellant’s Reply Brief on the Merits (Albert A. Albillar), 2009 WL
1387615, *11-12 (filed April 20, 2009) (the “other crime” thesis from
Garcia is not advanced by appellant); Appellant’s Reply Brief on the Mer-
its (Alex A. Albillar), 2009 WL 1541985, *1-2 (filed May 7, 2009)
(“appellant has neither relied upon [Garcia or Briceno] in arguing the
insufficiency of the evidence, nor is it necessary to do so”). Accordingly,
we would urge the California Supreme Court to answer the certified ques-
tions presented here, notwithstanding the grant of review in Albillar.
6892 EMERY v. CLARK
found that a principal discharged a firearm, resulting in
Chow’s death. §§ 12022.53(d) and (e)(1). The facts upon
which the jury rendered its verdict and findings are as fol-
lows.

A. The Attempted Robbery and Murder of Henry
Chow

On November 4, 2001, Leonardo Alvarez (“Leonardo”), a
member of the Eastside Longos criminal street gang, lived on
West Third Street in Long Beach with his brothers Danny
Alvarez (“Danny”), five other siblings, and their mother, San-
dra Rosales. The house on West Third Street was a hangout
for members of numerous gangs, including the Westside Lon-
gos. Gang members would come to the house to drink and use
drugs. Gang members would also commit acts of fraud at the
house, and were initiated into the gang at that location. In
November 2001, Danny was 18 years old and Leonardo was
16 or 17 years old.

Petitioner Emery, also known as “Little Man,” was at the
time an active member of the Westside Longos street gang.
He arrived at the house on West Third at around 12:00 to 2:00
p.m. that day, carrying a black gun and wearing a bulletproof
vest.

Rosales did not know Emery, and had never seen him
before. She noticed he was wearing a bulletproof vest, and
asked him about it. Emery had his hand in his pocket. Rosales
reached out and felt something hard, like metal. Rosales told
Danny she did not want Emery in her house, and told Emery
to leave or she would call the police. Danny said Emery
would only be there for a couple of minutes.

Emery left, but returned to the house sometime around 6:00
to 7:00 p.m. that same day. Upon Emery’s return, Danny told
Leonardo to go to the store to get some peanuts for Emery.
Leonardo went to the Moonray Market at 605 Broadway in
 EMERY v. CLARK 6893
Long Beach, which was owned by Henry Chow. Hue Bui, a
friend of Chow, was there. When Leonardo and two or three
other young Hispanic boys came to the market, Chow asked
Bui to stop them from coming in. Leonardo tried to push Bui
away, and they got into a scuffle. Bui grabbed Leonardo by
the collar and pushed him out of the store.

Leonardo returned home about ten minutes after he left,
crying and complaining that the owner of the store, an Asian
male, had pushed him to the ground. Emery became enraged
and said that he wanted to “go teach this motherfucker a les-
son,” and that he was going to rob the store owner.

On the way out of the house, Danny encountered his little
sister, Jessica. Danny did not want to pursue Emery’s pro-
posed course of action, so he asked Jessica to come along,
hoping her presence would deter Emery from going ahead
with the robbery.

Emery, Danny, and Jessica walked to the store together. On
the way, Emery reiterated that he intended to “teach this
motherfucker a lesson” and rob him. Danny asked Emery not
to do it, because Chow was his friend. Emery pulled out a gun
and threatened Danny, asking, “Are you going to ride when
I smoke the motherfucker?” Danny was afraid Emery would
kill him, so he went into the store with Emery.

Emery walked into the store, and said to Chow, “Hey bitch,
give me the money.” Emery then shot Chow three times in
rapid succession, mortally wounding him. After the shooting,
Emery ran out of the store. A Black woman tripped over
Danny. Danny tried to help her up, but she refused his help.
A Samoan male told Danny to leave the store, so he did, tak-
ing his sister with him.

Bui grabbed a golf club to protect himself, then called out,
“Hey, Henry, are you all right?” Chow said, “No, I think I got
shot in the leg.” Bui looked at Chow’s leg, but did not see a
6894 EMERY v. CLARK
hole or any blood. The paramedics came and took Chow
away, and he later died as a result of a gunshot wound to his
chest.3

Danny went home after the shooting. Emery was not there,
but his friend Bugsy, another Westside Longos gang member,
was there. Bugsy had the gun Emery used in the shooting.
Bugsy asked Danny where he should hide the gun. Danny
gave Bugsy his blue jacket, and showed him where to hide the
gun. They wrapped the gun in the jacket, and put it in an ice
cooler in the back yard. Danny took a Valium, then left the
house.

B. The Investigation of the Shooting

Long Beach Police Detective Hector Gutierrez was
assigned to investigate the shooting at the Moonray Market.
He went to the house on West Third Street looking for Emery,
who was known to him as “Little Man,” and found him out
front. Emery was wearing a bulletproof vest, but did not have
a weapon. Detective Gutierrez arrested Emery and took him
to the police station.

Sometime in the late evening hours of November 4 to the
early morning hours of November 5, 2001, Detective Gutier-
rez returned to the West Third Street house to look for wit-
nesses. He spoke with Leonardo, Danny, and Rosales.
3
According to a Los Angeles County Deputy Medical Examiner who
testified at trial, Chow had five separate gunshot wounds, which were
likely caused by three separate gunshots. The wounds were consistent with
bullets fired from a .45-caliber automatic. Chow had been shot in the
chest, back, and legs. One of the bullets caused three wounds, one to each
of Chow’s legs and another to his penis. All of the gunshot wounds were
through-and-through, meaning that the bullet entered and exited the body.
The bullet that entered Chow’s chest injured his lungs and his liver. This
was the fatal wound.
 EMERY v. CLARK 6895
Leonardo told Detective Gutierrez that he had gone to the
Moonray Market and attempted to “take some peanuts,” and
an Asian male working at the store grabbed or pushed him to
the ground. Leonardo went home to tell his “big brother,”
Danny, what happened. Emery, who was called “Little Man,”
was present, and had a semiautomatic gun with him. Leo-
nardo said Emery was a member of the Westside Longos
gang. Danny and Emery got upset and agitated, and left to go
to the Moonray Market.

Danny told Detective Gutierrez that Leonardo had been
pushed by an Asian male. He said Little Man became angry
and said something like, “Let’s go smoke that fool.” Danny,
his sister Jessica, and Little Man walked to the market. They
stopped in an alley, and Little Man pulled out a chrome
revolver. Little Man told Danny, “We’re going to take this
ride together, or I’m going to kill you.” Danny told the detec-
tive that he and Jessica stayed in the alley while Little Man
went into the market. Little Man yelled something like, “Give
me your money or I’m going to kill you, motherfucker.”
Danny heard two or three shots, then saw Little Man run out
of the market and down the alley. Danny went home, then he
and his brother went to visit a girlfriend.

Following this conversation, Detective Gutierrez placed
Danny under arrest and took him to the police station. Later,
Danny spoke with Detective Gutierrez at the jail. Danny said
Leonardo had a problem with an Asian employee at the
Moonray Market. Danny said that Leonardo told Emery and
him about the incident, and they got “pumped up” and angry
about it. Danny said that he and Emery went to the Moonray
Market, where Emery shot Chow.

Danny also spoke with Long Beach Police Detective Mark
McGuire. He told Detective McGuire that Emery shot Chow.
However, Danny also told many lies in his conversation with
Detective McGuire.4 Danny said he does not consider himself
4
At first, Danny lied when he said he did not know where the gun was,
but then he told the police where to find it. Danny lied when he said that
6896 EMERY v. CLARK
a gang member, but admitted that he did hang out with gang
members. Danny claimed to be a “tagger” with the nickname
“Fear” or “Matar,” which means “to kill” in Spanish. At least
one defense witness, testified that he has known Danny since
childhood, and he knows Danny to be a gang member.

Danny also told McGuire that he would be risking his life
by testifying against Emery. At trial, Danny testified that
Emery threatened him prior to the preliminary hearing by
writing a note saying that someone in Danny’s family would
get hurt if he testified. About six months before trial, Emery’s
mother also threatened Leonardo, and warned him not to tes-
tify.

After his conversation with Danny, Detective McGuire
went to the house on West Third Street and recovered the gun
that was used to kill Chow. It was a gray .45 caliber semiauto-
matic handgun.

C. The Joint Indictment of Emery and Danny Alvarez

By information filed on February 27, 2003, Emery and
Danny were charged with murder, § 187(a) (Count 1), and
second degree robbery, § 211 (Count 2). With respect to
Count 1, the information alleged the special circumstance that
the murder was committed while the defendants were engaged
in robbery. § 190.2(a)(17)(A). With respect to both counts, it

he was in the alley at the time of the shooting. Danny lied about taking
Valium and smoking primos (marijuana cigarettes laced with cocaine
base) with Emery. Danny lied when he said that Emery had a .38 revolver.
Danny lied about his sister’s age, saying she was eight when she was
really six. Danny lied when he said that Emery was only going to see what
was going on at the market, when he was really going to rob the store
owner. Danny lied and said the gun was not at his house. Danny talked
to Detective McGuire before he had a deal with the prosecution. Danny
thought a videotape from the Moonray Market would show Emery shoot-
ing Chow.
 EMERY v. CLARK 6897
was further alleged that Emery personally and intentionally
discharged a firearm, causing great bodily injury,
§ 12022.53(d); that he personally and intentionally discharged
a firearm § 12022.53(c); and that he personally used a fire-
arm, § 12022.53(b). It was also alleged as to both counts that
a principal personally and intentionally discharged a firearm,
causing great bodily injury, §§ 12022.53(d) & (e)(1); that a
principal personally and intentionally discharged a firearm,
§§ 12022.53(c) & (e)(1); and that a principal personally used
a firearm, §§ 12022.53(b) & (e)(1). It was further alleged as
to both counts that the offenses were committed for the bene-
fit of, at the direction of, and in association with a criminal
street gang, with specific intent to promote, further and assist
in criminal conduct by gang members. § 186.22(b)(1).

Danny’s case was severed from Emery’s before trial, and
he eventually pled guilty to voluntary manslaughter in return
for his agreement to testify against Emery. Pursuant to that
agreement, Danny testified at trial that the murder of Henry
Chow was committed in “furtherance of a criminal street
gang.” On October 7, 2004, the information was amended to
include the special circumstance allegation pursuant to section
190.2(a)(22)—i.e., that the murder was an intentional killing
by an active member of a criminal street gang, carried out to
further the activities of the gang.

D. The Testimony of Gang Expert Abel Morales

Detective Abel Morales, the prosecution’s gang expert, tes-
tified at trial about gangs in the Long Beach area. He stated
that the Westside Longos is a predominantly Hispanic gang
with territory on the west side of Long Beach with approxi-
mately 300 members. The gang’s primary criminal activities
are drive-by shootings, burglaries, armed robberies, and mur-
ders. Their symbol is WSL and they do not claim any colors,
but their preferred colors are black and white. Emery had tat-
toos representing the Westside Longos.
6898 EMERY v. CLARK
Morales further testified that Westside Stoner is a predomi-
nantly white gang in the same area with approximately 50 mem-
bers.5 Their symbol is WSS and they also prefer black and
white colors. Their primary criminal activities are shootings,
murders, burglaries, robberies, auto thefts, and selling narcot-
ics. Emery also had tattoos representing the Westside Stoners.

According to Detective Morales, Eastside Longos is the
largest Hispanic gang in Long Beach, with approximately 400
members. Their symbol is ESL and they also prefer black and
white colors. Their primary criminal activities are murder,
drive-by shootings, burglaries, robberies, extortion, witness
intimidation, drug sales, and gun possession.

When questioned about the relationship between the West-
side Longos and Eastside Longos, Morales explained that
there had been a peace treaty between the two gangs since the
early 1990s when the Mexican Mafia told them that Hispanics
have to stick together and should not be fighting amongst
themselves. Ever since then, he said, “they somewhat try to
follow that rule.” There is also some fluidity in membership
between the Westside Longos and Westside Stoners.

Morales further testified about the importance of “respect”
in a gang, saying, “The only thing you have in a gang is
respect. Once respect is getting taken away from [you], you
don’t have a second chance. People look up to you because
of the things you have done in the past. That’s how you get
respect.” If someone disrespects a gang member, the gang
member would retaliate because doing nothing would mean
that “he have no respect.” If the person disrespected was a
5
Although Rosales’s house and the Moonray Market both appear to be
located on the “west side” of Long Beach, the Attorney General conceded
at oral argument that there was no evidence or argument to the jury that
the crimes were committed to defend the “turf” of either the WSL or WSS
gang. Nor was there any showing that Emery wore gang colors, threw
gang signs, exposed his gang tattoos, or used his gang moniker, “Little
Man,” while committing the attempted robbery and murder.
 EMERY v. CLARK 6899
member of an affiliated gang or a friend, the gang member
would get even more respect by “sticking up for someone
else.”

Morales further testified that the race of the people
involved plays a “major part” and if the person who disre-
spected the gang member was from a different race, “you just
can’t let that go.” According to Morales, Westside Longos,
Eastside Longos, and Westside Stoners did not get along with
the Asian gangs.

Morales testified, without objection, that in his opinion the
murder of Henry Chow was committed in furtherance of a
criminal street gang. When asked to explain, he said:

My opinion [is] based on the fact that Mr. Emery, as
you can see from the pictures, he’s hard-core gang
member. By him shooting the [victim] for just a sim-
ple deal that had occurred with one of Emery’s
friends, that shows that he had to go and do some-
thing worse than just beating him, you know, for the
fact that shooting — hurt him real bad because he
disrespected not only his gang by messing with one
of his friends but also himself — by the person going
to Emery and saying, “hey, this was done to me,” he
was showing that you had to go do something; by
him not doing anything, he totally get disrespected.

When asked how he knew the killing was not just “a family
thing,” in which Emery was avenging an act of disrespect
toward his friend’s brother, but instead “a gang thing” in
which he was retaliating against Chow for disrespecting
another gang member, Morales explained:

[F]rom my understanding from what I know is that
the person [who] got disrespected was a gang mem-
ber from Eastside Longo gang. Therefore, he went
and told his brother, who his brother is not a gang
6900 EMERY v. CLARK
member, but who Mr. Emery is a gang member. By
them doing that, they had to go show and prove
something, that you can’t just mess with that particu-
lar gang or any of his friends from that gang.

Finally, as to the use of lethal force “over a fight about pea-
nuts,” Morales explained that Emery’s actions would inspire
fear within the WSL, the WSS, the ESL, and in the commu-
nity, such that he could henceforth act with complete impu-
nity. Indeed, it would “shoot [him] up the ladder at the top
because if [he] could just shoot somebody for something
dumb, then he can go and do anything to anybody.”

E. The Jury Verdict & Sentencing

A jury convicted Emery of the attempted robbery and first
degree murder of Henry Chow, with the special circumstances
that: (1) Emery was an active participant in a criminal street
gang and the murder was carried out to further the activities
of his gang, § 190.2(a)(22)); and (2) Chow was killed during
a robbery, § 190.2(a)(17). The jury also specifically found
that Emery committed both crimes “for the benefit of, at the
direction of, and in association with, a criminal street gang
with the intent to promote, further, or assist in criminal con-
duct by gang members pursuant to [section] 186.22(b)(1).”
Finally, the jury found that a principal discharged a firearm,
resulting in Chow’s death. §§ 12022.53(d) & (e)(1). The jury
left blank the portions of the verdict form asking whether
Emery personally fired the weapon. §§ 12022.53(b)-(d).

The state trial court sentenced appellant to life in prison
without possibility of parole for Count 1, special circum-
stances murder. The trial court also imposed a consecutive
term of 25 years to life for the gun discharge enhancement,
and an additional consecutive 10 years as a gang enhancement
for the murder. Finally, the court imposed a concurrent term
of two years for Count 2, attempted robbery. The special cir-
cumstance finding pursuant to section 190.2(a)(22), and the
 EMERY v. CLARK 6901
gang enhancements imposed pursuant to section 186.22(b)(1)
and sections 12022.53(d) and (e)(1) are at issue in this appeal.

F. Emery’s State Court Appeal

On direct appeal, the California Court of Appeal for the
Second Appellate District, Division Eight, ordered the state
trial court to strike the 10-year gang enhancement imposed as
to Count 1 pursuant to People v. Lopez, 34 Cal.4th 1002, 1004
(2005), and to correct two minor sentencing errors, but the
judgment was otherwise affirmed. People v. Emery, No.
B180005, 2006 WL 1431193 (Cal. Ct. App. May 25, 2006).
In its unpublished decision, the California Court of Appeal
rejected Emery’s argument regarding the sufficiency of the
evidence to support the gang enhancement, holding as fol-
lows:

Here, evidence allowed the jury to find appellant
murdered Chow specifically intending to promote
his gang’s criminal conduct. A street gang prospers
by cowing local residents into not challenging the
gang’s domination of the neighborhood. Killing
Chow, who had disrespectfully manhandled Leo-
nardo Alvarez, a member of a related gang, taught
neighborhood residents to fear the gang, and disci-
plined local residents to defer to gang members.
Killing for even a personal slight warned residents
not to trifle with the gang. In addition to the evi-
dence permitting the jury to affirmatively find appel-
lant committed his crimes to benefit his gang,
appellant’s contrary claim that he murdered Chow
based on a purely personal grudge suffers from its
implausibility.

Appellant had known Danny Alvarez, Leonardo’s
brother, for only one month. Leonardo did not know
appellant, having met him only once before. Despite
their very casual acquaintance, appellant claimed his
6902 EMERY v. CLARK
outrage at the personal slight to a younger brother he
did not know (Leonardo) of a companion he had
known for only one month (Danny) was sufficient to
make him want to kill Chow independently of any
gang tie, affiliation, or purpose. The jury was free to
reject that argument.

Id. at *2. The California Supreme Court summarily denied
Emery’s petition for review on September 13, 2006, see Peo-
ple v. Emery, Cal. Sup. Ct. No. S144683, and denied his final
state petition for writ of habeas corpus on June 24, 2009, see
Emery (Ruben) on H.C., Cal. Sup. Ct. No. S172933.

G. Habeas Corpus Proceedings in the District Court

Emery filed his federal habeas petition on April 4, 2007,
raising five claims. On June 21, 2007, District Court Judge
James Otero adopted a magistrate judge’s report and recom-
mendation, and denied the petition in its entirety. In rejecting
Emery’s claim of insufficiency of the evidence to support the
gang enhancements, the district court held as follows:

After a review of the record in this case, including,
but not limited to, the expert testimony of Officer
Morales, this court concurs and independently finds
that viewing the evidence in the light most favorable
to the prosecution, a rational trier of fact could have
found the elements of the gang special circumstance
finding and the gang enhancement finding beyond a
reasonable doubt.

H. Emery’s Appeal to the Ninth Circuit Court of
Appeals

On July 29, 2008, this court granted a certificate of
appealability of the issue as to the sufficiency of the evidence
to support the gang enhancements applied in this case.6 This
6
Although the certificate of appealability referred only to the sufficiency
of the evidence to support the gang enhancements as to the “robbery” and
 EMERY v. CLARK 6903
court also granted Emery’s motion for appointment of counsel
on November 3, 2008. The case was fully briefed, and was
argued and submitted on December 10, 2009. The parties
were advised during oral argument that the panel was consid-
ering certifying the questions of state law presented in this
appeal to the California Supreme Court pursuant to rule 8.548
of the California Rules of Court.

IV. Reasons for Certification

The sole issue raised in this appeal is whether the Califor-
nia state courts reasonably concluded that the evidence pre-
sented at trial was sufficient to support the jury’s findings that
Emery committed the attempted robbery and the murder of
Henry Chow “with the specific intent to promote, further, or
assist in any criminal conduct by gang members” within the
meaning of section 186.22(b)(1), and “to further the activities

the use of a firearm by a principal in the commission of the robbery, the
parties agree that the attempted robbery and murder were committed
simultaneously, and the evidence supporting the convictions on Counts 1
and 2 was virtually identical. Thus, both Emery and the Attorney General
have briefed the issue of the sufficiency of the evidence to support the
gang enhancements as to both the attempted robbery and the murder pur-
suant to §§ 186.22(b), 12022.53(d) and (e)(1). Similarly, although Emery
does not offer separate briefing or argument about the sufficiency of the
evidence to support the “gang enhancement” embedded in the murder spe-
cial circumstance for a murder carried out by an active member of a crimi-
nal street gang to “further the activities of the criminal street gang,”
§ 190.2(a)(22), the Attorney General has acquiesced in the inclusion of
that issue within the scope of Emery’s appeal. Thus, we deem the parties’
agreement on these points to be a joint motion to expand the certificate of
appealability, and hereby grant it. We have also assumed that a failure of
proof as to the “specific intent” element of section 186.22(b)(1) would
apply to the section 190.2(a)(22) special circumstance, and would require
that the jury’s findings as to both of these provisions be vacated. As there
is no separate authority interpreting the language “to further the activities
of a criminal street gang,” we intend the discussion of the sufficiency of
the evidence of section 186.22(b)(1) specific intent to pertain as well to
the § 190.2(a)(22) special circumstance.
6904 EMERY v. CLARK
of the criminal street gang” within the meaning of section
190.2(a)(22).7

For purposes of this appeal, Emery does not dispute that he
was a principal in the attempted robbery and murder of Henry
Chow, or that he was an active participant in a criminal street
gang at the time, or that a principal discharged a firearm in the
commission of those crimes. Nor does he separately dispute
that the crimes were committed “for the benefit of, at the
direction of, or in association with any criminal street gang.”
§ 186.22(b)(1).

Rather, relying exclusively on two recent Ninth Circuit
decisions, Garcia v. Carey, 395 F.3d 1099 (9th Cir. 2005),
and Briceno v. Scribner, 555 F.3d 1069 (9th Cir. 2009),
Emery contends that the prosecution was required to prove he
committed the attempted robbery and murder of Chow with
the specific intent to promote, further, or assist in other spe-
cific criminal gang activity, apart from the offenses of convic-
tion, and that no rational trier of fact could have found that
element of the section 186.22(b)(1) gang enhancement estab-
lished beyond a reasonable doubt based on the evidence pre-
sented at trial. See Garcia, 395 F.3d at 1100-01, 1103-04; Bri-
ceno, 555 F.3d at 1078-80. Relying on Briceno, 555 F.3d at
1081 n.4, Emery further contends that the jury’s specific
intent finding cannot be sustained under California case law
suggesting that by committing the crimes in concert with
Danny—who was either a gang member himself, a gang asso-
ciate, or the protective older brother of a member of a gang
7
To prevail on an insufficiency of evidence claim under federal law, a
habeas corpus petitioner must show that “upon the record evidence
adduced at the trial[,] no rational trier of fact could have found proof of
guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324
(1979). An additional layer of deference is added to this standard of
review by 28 U.S.C. § 2254(d), which obliges the petitioner, Emery, to
demonstrate that the state court’s adjudication entailed an unreasonable
application of the Jackson standard. See Juan H. v. Allen, 408 F.3d 1262,
1274 (9th Cir. 2005).
 EMERY v. CLARK 6905
affiliated with Emery’s gang—he acted with the specific
intent to “assist in any criminal conduct by gang members”
within the meaning of section 186.22(b)(1). See People v.
Vazquez, 178 Cal.App.4th 347, 353-55 (2009); People v. Vil-
lalobos, 145 Cal.App.4th 310, 322 (2006); People v. Romero,
140 Cal.App.4th 15, 19-20 (2006); People v. Morales, 112
Cal.App.4th 1176, 1198 (2003).

Since Garcia was decided in 2005, there has developed a
sharp split of authority between the California Courts of
Appeal and the Ninth Circuit regarding the proper interpreta-
tion of the “specific intent” clause in section 186.22(b)(1)—a
conflict that has been recognized by courts on both sides of
the precedential divide. See, e.g., Briceno, 555 F.3d 1078-83;
Vazquez, 178 Cal.App.4th at 353-55. California Courts of
Appeal have repeatedly complained in both published and
unpublished decisions that this court in Garcia, and later in
Briceno, has misinterpreted section 186.22(b)(1). The follow-
ing passage from People v. Romero, 140 Cal.App.4th 15
(2006) is representative:

Relying on the majority opinion in [Garcia ], appel-
lant [Romero] asserts that the statute requires a
showing of intent to promote the gang’s criminal
activity beyond the charged crime. In Garcia, the
Ninth Circuit found insufficient evidence of specific
intent to promote, further, or assist in other criminal
conduct by the defendant’s gang. We disagree with
Garcia’s interpretation of the California statute, and
decline to follow it. . . . By its plain language, the
statute requires a showing of specific intent to pro-
mote, further, or assist in “any criminal conduct by
gang members,” rather than other criminal conduct.
(§ 186.22, subd. (b)(1), italics added.)

Romero, 140 Cal.App.4th at 19 (italics in the original; case
citations omitted); accord People v. Hill, 142 Cal.App.4th
770, 774 (2006) (stating that Garcia “misinterprets California
6906 EMERY v. CLARK
law”). Most recently, in Vazquez, 178 Cal.App.4th 347, the
Court of Appeal held that:

“Like the Romero court, we reject the Ninth Cir-
cuit’s attempt to write additional requirements into
the statute. There is no statutory requirement that
this “criminal conduct by gang members” be distinct
from the charged offense, or that the evidence estab-
lish specific crimes the defendant intended to assist
his fellow gang members in committing.”

Id. at 354.

The views expressed by the Romero, Hill, and Vazquez
courts are consistent with those of the California Court of
Appeal that decided Emery’s direct appeal.8 In that unpub-
8
In addition to Romero, Hill, and Vazquez, a Westlaw search discloses
more than forty unpublished cases from the California Courts of Appeal
that “disagree with,” “decline to follow,” or “recognize the disagreement”
with the Ninth Circuit on this issue. It should also be noted that some
California-based federal district courts, in evaluating habeas claims of
insufficiency of the evidence to support section 186.22(b) gang enhance-
ments, have been struggling with Garcia and Briceno, especially with
Garcia’s requirement of evidence that the defendant intended to further,
promote, or assist in other specific criminal activity, “apart from” that of
the charged offenses. See, e.g., Lor v. Small, 2010 WL 935654 (E.D.Cal.
Mar. 10, 2010); Washington v. Small, 2010 WL 785233 (C.D.Cal. Feb. 26,
2010); Scott v. Marshall, 2010 WL 546360 (C.D.Cal. Feb. 10, 2010);
Arroyo v. Carter, 2010 WL 234819 (C.D.Cal. Jan. 12, 2010); Coutee v.
Walker, 2010 WL 128338 (C.D.Cal. Jan. 7, 2010); German v. Horel, 2009
WL 4885195 (C.D.Cal. Dec. 16, 2009); Mungia v. Hedgpeth, 2009 WL
2514188 (C.D. Cal. Aug. 13, 2009); Tarver v. Horel, 2009 WL 2448016
(C.D. Cal. Aug. 6, 2009); Mendoza v. Att’y Gen. of State of Cal., 2009 WL
926814 (E.D. Cal. Apr. 3, 2009); Osika v. Patrick, 2009 WL 485478 (C.D.
Cal. Feb. 20, 2009). A recent law review article also provides cogent anal-
ysis of the conflict between Garcia and the numerous California Court of
Appeal cases dealing with the specific intent issue since 2005, as well as
the inconsistency of results in some California cases. Martin Baker, Crips
and Nuns: Defining Gang-Related Crime in California Under the Street
Terrorism Enforcement and Prevention Act, 40 McGeorge L. Rev. 891
 EMERY v. CLARK 6907
lished opinion, the Court of Appeal concluded that “Garcia is
not persuasive” in its interpretation of the specific intent
required for imposition of gang enhancements, People v.
Emery, 2006 WL 1431193 at *2, and further noted that the
Ninth Circuit decision in Garcia was at odds with the decision
of the Court of Appeal that ruled on Garcia’s direct appeal. Id.
at n.2.

A.

A close look at the facts and holdings of Garcia and Bri-
ceno brings into focus the stark conflict between the case law
of this court and the California Courts of Appeal regarding the
element of “specific intent” to support a gang enhancement
under section 186.22(b)(1).

In Garcia, the defendant was a member of a gang known
as El Monte Flores, or E.M.F. Id. at 1101. Its “turf” or terri-
tory extended to much of the City of El Monte, including the
location of a liquor store where Garcia robbed a patron of
$14.85 and his bicycle. The victim, Ricardo Bojorquez, nod-
ded toward Garcia and said, “How do you do?” Garcia
responded, “You know me?” Bojorquez answered, “No, I’m
just saying how are you.” Garcia then said, “If you don’t
know me, don’t be talking to me.” As Bojorquez continued
walking toward the counter, Garcia asked him if he had any
change, and Bojorquez answered that he did not. Garcia then
said, “Let’s see when you come out the door.” One of Gar-
cia’s companions asked Bojorquez where he was from, but
Bojorquez did not answer. When Bojorquez tried to leave the
store, Garcia stood in front of him and said, “I’m Little Risky

(2009). Needless to say, most of these cases are working their way through
the habeas pipeline, and will soon be making their way to this court. Thus,
a definitive interpretation of the “specific intent” element of the gang
enhancement statute from the California Supreme Court would greatly
assist both the state and federal courts, and, of course, the parties to these
cases.
6908 EMERY v. CLARK
from E.M.F.,” then asked, “you want to get jacked [robbed]?”
Garcia told his companions to watch for the police, then took
$14.85 from Bojorquez’s shirt pocket. One of Garcia’s com-
panions lifted his own shirt and grabbed the handle of what
Bojorquez thought was a pistol. Garcia told one of his com-
panions to take Bojorquez’s bicycle. After his associate did
so, Garcia and his companions left the store with it. Id.

A gang expert from the El Monte Police Department testi-
fied that E.M.F. was the largest street gang in the city, that it
was “turf-oriented,” and that the robbery had occurred in the
Little Five Points Area, which was part of E.M.F.’s turf. Id.
at 1101-02. He further testified that the robbery with which
Garcia was charged was similar to a series of robberies com-
mitted by E.M.F. members in the area during the few months
before the charged robbery, and that such robberies were a
primary activity of the E.M.F. gang. Id. at 1102. Although
Bojorquez had identified Garcia to the police the day after the
robbery, he testified at trial that he did not remember what the
gang members said and further testified that Garcia was not
one of the people who accosted him. Id. at 1101. The gang
expert testified that it was common for victims of gang-
related crimes to back-track on statements they initially made
to police because of the “fear intimidation process.” Id. at
1102.

The state court jury found Garcia guilty of the robbery of
Bojorquez, and found true the gang enhancement pursuant to
section 186.22(b)(1), and the gun use enhancement pursuant
to sections 12022.53(d) and (e)(1). Garcia, 395 F.3d at 1102.
In a 2-1 decision, the California Court of Appeal affirmed
Garcia’s conviction and the 21-year sentence imposed, includ-
ing 5 years for a prior serious felony. Id. (citing § 667(a)(1)).
The Court of Appeal rejected Garcia’s claim of insufficiency
of the evidence of the “specific intent” required for the gang
and gun use enhancements, because the evidence supported a
rational inference that the robbery of Bojorquez was not “a
random street robbery,” but one in a series of robberies com-
 EMERY v. CLARK 6909
mitted in the Little Five Points Area “not only to obtain the
property of the victims, but also as a means of instilling fear
of the gang in the residents of the neighborhood, and thereby
facilitating the gang’s criminal operations in the area.” Id. at
1103.9 As the dissenting judge in Garcia noted, the California
Court of Appeal further observed that the “[r]esidents intimi-
dated in this fashion are less likely to report crime,” and that
“nefarious control of the Little Five Points Area and its resi-
dents qualifies, in our view, as criminal conduct by gang
members within the meaning of [section 186.22(b)(1)].” Id. at
1105 (Wallace, J., dissenting). The California Supreme Court
denied Garcia’s petition for review. Id. at 1102.

Upon the government’s appeal to the Ninth Circuit from a
district court order granting Garcia’s federal habeas petition,
the Garcia majority rejected the conclusion of the California
Court of Appeal, agreeing with the district court that the pros-
ecution was required to present evidence of some other spe-
cific criminal activity that was furthered by the crime of
conviction to satisfy the “specific intent” element in section
186.22(b)(1):

There is nothing in this record . . . that would support
an inference that Garcia robbed Bojorquez with the
specific intent to facilitate other criminal conduct by
the E.M.F. The evidence indicates that Garcia was a
gang member and that he robbed Bojorquez in an
area known to be in the heart of the gang’s “turf.”
Detective Hernandez, the gang expert, testified that
the gang was “turf oriented,” and he described three
other robberies committed by E.M.F. members in El
Monte during the few months prior to Garcia’s
9
The unpublished decision of the California Court of Appeal, Second
Appellate District, Division Three, in People v. Garcia, Cal. Ct. App. No.
B126441 (Jan. 13, 2000), is not available on-line. However, key rulings
of the Court of Appeal are quoted at length by the majority and the dissent
in Garcia. See 395 F.3d at 1103; id. at 1105-06 (Wallace, J., dissenting).
6910 EMERY v. CLARK
offense. But there is no evidence indicating that this
robbery was committed with the specific purpose of
furthering other gang criminal activity, and there is
nothing inherent in the robbery that would indicate
that it furthers some other crime. There is nothing on
the record that connects the “turf-oriented” nature of
the gang with the commission of robberies generally,
or, more importantly, with the commission of this
robbery in particular. The expert’s testimony is sin-
gularly silent on what criminal activity of the gang
was furthered or intended to be furthered by the rob-
bery of Bojorquez.

395 F.3d at 1103 (emphasis added).10 Specifically with respect
to the Court of Appeal’s conclusion that the jury could rea-
sonably infer the robbery by Garcia and his accomplices was
similar to the string of robberies about which the gang expert
had testified in detail, and which constituted “one of the pri-
mary activities” of the E.M.F. gang, the Garcia majority
declared that:

There was testimony that the gang committed rob-
beries, but there was nothing to indicate why those
robberies were aided or intended to be aided by this
robbery. Because there was no testimony or other
evidence to support a rational inference that the rob-
10
Although the Garcia majority did not cite them, the California cases
on which the district court relied in requiring proof of “other criminal con-
duct” apart from the offense of conviction, were People v. Beeman, 35
Cal.3d 547, 560 (1984), and People v. Green, 227 Cal.App.3d 692, 703-
04 (1991). The district court cited Beeman, which is a leading case defin-
ing “aider and abettor” liability, for the proposition that the “specific
intent” element of section 186.22(b)(1) “includes the intent to do some act
or achieve some consequence beyond the actus reus of the crime.” The
district court did not notice, however, that Green was interpreting section
186.22(a), which defines the substantive offense of “active participation”
in a criminal street gang, not the sentencing enhancement provisions in
section 186.22(b), which presuppose the commission of a specific substan-
tive offense.
 EMERY v. CLARK 6911
bery of Bojorquez was committed with the intent to
further other criminal activity of E.M.F., the ruling
of the California Court of Appeal meets the deferen-
tial AEDPA standard for federal habeas corpus
relief: the ruling is “an unreasonable application of
[ ] clearly established Federal law, as determined by
the Supreme Court of the United States

Id. at 1103-04 (quoting 28 U.S.C. § 2254(d)(1); emphasis in
original).

In reaching this conclusion, the Garcia majority attempted
to distinguish the only California Supreme Court case that has
touched upon the “specific intent” element in section
186.22(b)(1), albeit only in passing. 395 F.3d at 1104 (citing
Gardeley, 14 Cal.4th 605, 619 (1997)). In Gardeley, the Court
found the “specific intent” element established by the testi-
mony of a gang expert about how the assault in that case,
committed on the “turf” of the criminal street gang of which
the co-defendants were members, in full view of residents in
the area, “was a ‘classic’ example of gang-related activity” in
that “criminal street gangs rely on such violent assaults to
frighten the residents of an area where the gang members sell
drugs, thereby securing the gang’s drug-dealing stronghold.”
14 Cal.4th at 619. The Garcia majority held that the expert
testimony in Gardeley was sufficient to permit the jury rea-
sonably to conclude that the attack was committed with the
necessary specific intent to further other criminal activity of
the defendants’ gang, but did not otherwise explain why it
believed “[n]o comparable testimony was presented in Gar-
cia’s case.” 395 F.3d at 1104.

Finally, the Garcia majority cited examples of California
cases in which it believed there was sufficient evidence of
“other criminal gang activity” furthered by the crime of con-
viction. Id. (citing People v. Augborne, 104 Cal.App.4th 362,
372-73 (2002) (expert testified that explicitly gang-related
criminal threats made in support of a fellow gang member
6912 EMERY v. CLARK
were committed for the promotion and assistance of criminal
conduct by gang members);11 In re Ramon T., 57 Cal.App.4th
201, 207-08 (1997) (assault on peace officer who had another
gang member in custody was committed in order to assist the
gang member’s escape); People v. Ortiz, 57 Cal.App.4th 480,
484-85 (1997) (robbery and murder committed with the spe-
cific intent of framing a rival gang for the crimes).

B.

In Briceno, 555 F.3d 1069, our court recently held—again
in a 2-1 decision—that Garcia was correctly decided, not-
withstanding the fact that its interpretation of California’s
gang enhancement statute has been repeatedly rejected by
numerous California state courts. Id. at 1080-83 (declining to
follow Hill, 142 Cal.App.4th 770, and Romero, 140
Cal.App.4th 15); id. at 1081 n.4 (concluding that Morales,
112 Cal.App.4th 1176, is not an accurate statement of Califor-
nia law).

The defendant in Briceno was convicted of a string of four
armed robberies committed with a fellow gang member dur-
ing a “grinchly crime wave” between 1:00 a.m. and 3:30 a.m.
on Christmas day in 2000 in Anaheim and Garden Grove,
California. 555 F.3d at 1072. Briceno and his accomplice,
Landin, were both members of the Hard Times Street Gang,
11
It is not clear that the defendant’s “specific intent” under section
186.22(b)(1) was even at issue in Augborne. See 104 Cal.App.4th at 370,
373 (defendant challenged only findings of two or more “predicate
offenses” required to establish a “pattern of criminal gang activity” under
section 186.22(e) and his membership in a “criminal street gang” within
the meaning of section 186.22(f), claiming there was insufficient evidence
that the persons who committed prior crimes were gang members at the
time or that the predicate crimes were committed “for the benefit” of the
gang). There was also no indication that the gang expert explained how
the criminal threats made by the defendant would “promote, further or
assist” criminal gang conduct apart from the offenses of conviction. See
104 Cal.App.4th at 369-70, 372-73.
 EMERY v. CLARK 6913
which was stipulated to be a “criminal street gang” within the
meaning of section 186.22. Id. at 1072-73.

At the joint trial of Briceno and Landin, the prosecution
presented the testimony of a gang expert, Peter Vi, who had
been assigned to patrol the three block area of Garden Grove
controlled by the Hard Times gang. Id. at 1073-74. Vi testi-
fied in general about gang culture, including the central role
of “respect” as a source of power for gang members, and how
gang members use violence to increase the respect they and
their gang are given, to raise their individual status within the
gang, and to increase their recruitment of new gang members.
Id. at 1074. When given a hypothetical incorporating the facts
of the case, and asked whether he believed the four robberies
were “committed for the benefit of, at the direction of, or in
association with the criminal street gang Hard Times, and
with intent to promote, further and assist criminal conduct by
members of the Hard Times gang,” Vi did not directly
answer, but said he thought the co-defendants’ actions were
intended to “glorify” the gang, and that the crimes would raise
their status in the gang and give them increased opportunities
to participate in further crimes that other Hard Timers would
be more likely to solicit them to commit. Id. When asked if
his opinion would be any different if he knew that the rob-
beries were committed to get money with which to buy
Christmas presents (as Landin told one of the police detec-
tives) and that they yielded only a relatively small amount of
money, Vi said those facts would be of no moment; the defen-
dants’ conduct would nonetheless glorify the gang and their
status would be enhanced within the gang. Id.

Briceno and Landin were both convicted of four counts of
second degree robbery and four counts of street terrorism, and
the jury found true the section 186.22(b)(1) gang enhance-
ments alleged as to each robbery count. Id. at 1075. Because
he had two prior convictions of serious or violent felonies,
and had served a prior prison term, Briceno was sentenced
under California Three Strikes law to an indeterminate sen-
6914 EMERY v. CLARK
tence of 27 years to life, and a determinate sentence of 23
years and 4 months, including the gang enhancements for the
robberies. Id.

On direct appeal, the California Court of Appeal rejected
Briceno’s argument that the evidence was insufficient to sup-
port a finding that the crimes were committed “for the benefit
of a criminal street gang” within the meaning of the gang
enhancement statute. See People v. Briceno, No. G029525,
2003 WL 1710927 (Cal. Ct. App. Mar. 28, 2003). The Cali-
fornia Court of Appeal explained:

Defendants note there was evidence to show the
crimes were committed for personal gain (money to
buy Christmas gifts) rather than any gang-related
purpose. The problem with this argument is that it
ignores Vi’s expert testimony explaining how the
commission of these crimes would enhance the repu-
tation not only of the gang itself but of the individual
participants as well. Based on this evidence, the
jurors could reasonably have found the gang
enhancement allegations were true. It was for the
jurors to resolve any credibility issues or conflicts in
the evidence. We cannot second-guess their decision
on appeal.

Id. at *3 (quoted in Briceno, 555 F.3d at 1075). The Califor-
nia Supreme Court denied Briceno’s petition for review, but
granted the government’s petition for review on an unrelated
sentencing issue, as to which it subsequently reversed the
judgment of the Court of Appeal, but affirmed in all other
respects. See People v. Briceno, 34 Cal.4th 451, 456 (2004).

In the habeas proceedings before this court, Briceno relied
on Garcia to argue that the evidence at trial was insufficient
to support the finding that he committed the robberies with
the “specific intent to promote, further or assist in any crimi-
nal conduct by gang members” within the meaning of section
 EMERY v. CLARK 6915
186.22(b)(1). The Briceno majority agreed, and rejected the
holding of the California Court of Appeal on the gang
enhancement issue. 555 F.3d at 1078-83. First, the Briceno
majority observed that the gang expert testified only in “gen-
eralities” about how the robberies would “glorify” the defen-
dant’s gang and “sa[id] nothing about Briceno’s specific
intent in committing the robberies.” 555 F.3d at 1078-79
(emphasis in original). In addition, the Briceno majority held
that the record was “singularly silent” as to what other crimi-
nal activity of the gang, apart from the offenses of conviction,
was intended to be furthered or facilitated by the robberies, as
required by Garcia. Id. at 1079 & n.3 (emphasis added).
Finally, the Briceno majority concluded the “specific intent to
. . . assist in any criminal conduct by gang members” was not
established because “the mere fact that Briceno committed the
robberies with another gang member is insufficient to support
a gang enhancement under section 186.22(b).” 555 F.3d at
1083; id. at 1081 n.4 (distinguishing Morales).12

The Briceno majority acknowledged that, in the absence of
a pronouncement by the state’s highest court on an issue of
state law, the federal courts are bound to follow the decisions
of the intermediate state appellate courts unless there is “con-
vincing evidence” that the state’s highest court would reach
a different conclusion. 555 F.3d at 1080 (citing Owen ex rel.
Owen v. United States, 713 F.2d 1461, 1464 (9th Cir. 1983),
and In re Watts, 298 F.3d 1077, 1082-83 (9th Cir. 2002)).
Nevertheless, it rejected the government’s suggestion that
Garcia is no longer good law since the California Courts of
Appeal in Romero and Hill held that this court misinterpreted
section 186.22(b)(1) in that case. 555 F.3d at 1079-80. The
Briceno majority also declined to follow several pre- and
12
While it said so only in a footnote, the Briceno majority found that the
“only evidence” presented to the jury as to Briceno’s specific intent indi-
cated that he and Landin committed the robberies “on a frolic and detour
unrelated to the gang,” namely, to obtain money to buy Christmas pres-
ents. 555 F.3d at 1081 n.4.
6916 EMERY v. CLARK
post-Garcia decisions from the California Courts of Appeal
which have held that, under the plain language of section
186.22(b)(1), a specific intent to assist a known gang member
in committing the crime of conviction is sufficient to satisfy
the “specific intent” element. Villalobos, 145 Cal.App.4th at
322 (evidence that non-gang member defendant committed
robbery and burglary in concert with her boyfriend, a known
gang member, was substantial evidence that she acted with
the specific intent required for gang enhancement); Romero,
140 Cal.App.4th at 19-20 (evidence that the defendant drove
a fellow gang member into a rival gang’s territory to carry out
a drive-by shooting was sufficient to establish defendant’s
specific intent for gang enhancement, as it was fairly inferable
that he intended to assist his fellow gang member in commit-
ting the murder); Morales, 112 Cal.App.4th at 1198 (evidence
that defendant intended to commit robberies in association
with two fellow gang members was sufficient to prove he
intended to aid and abet the robberies and specifically
intended to assist in that criminal conduct by fellow gang
members within meaning of gang enhancement statute); see
also Vazquez, 178 Cal.App.4th at 353-55 (evidence that the
defendant and two fellow gang members killed a man they
suspected of being a member of a rival gang, and that defen-
dant was assisted by other gang members and associates as he
attempted to evade arrest, was sufficient to establish specific
intent to “promote” criminal activity of his gang).

The Briceno majority explained its refusal to follow this
substantial body of authority from the California Courts of
Appeal by saying that the Garcia panel had examined Garde-
ley, 14 Cal.4th 605, to find “the type of evidence necessary to
sustain a gang enhancement” under section 186.22(b)(1), 555
F.3d at 1080-81, and that under the “authoritative interpreta-
tion” provided by the California Supreme Court in that case,
“merely being a gang member or committing a crime in asso-
ciation with another gang member” cannot satisfy the “spe-
cific intent” element of the California gang enhancement
statute. 555 F.3d at 1080 (citing Gardeley, 14 Cal.4th at 624
 EMERY v. CLARK 6917
n.10).13 Rather, some “circumstantial evidence” of specific
intent to aid or abet the criminal conduct of the gang or other-
wise to benefit the gang—e.g., evidence that the defendant
committed the crime to protect gang “turf” or brandished
gang signs or used a gang moniker—is required. 555 F.3d at
1080-81.14

Thus, the Briceno majority concluded that Gardeley sug-
gests the California Supreme Court “would not adopt the
State’s understanding of Romero and Hill,” 555 F.3d at 1080,
and would not hold that there was sufficient evidence that Bri-
ceno committed the four Christmas day robberies—which
were not committed in Hard Times gang territory or on the
“turf’ of a rival gang, and in which neither Briceno nor
Landin flashed gang signs or tattoos or used gang monikers—
with the “specific intent to promote, further, or assist in any
criminal conduct by gang members” as required by section
186.22(b)(1). 555 F.3d at 1081-82.

C.

As the foregoing demonstrates, there is sharp divergence of
opinion between this court and the California Courts of
13
On this point, the Briceno majority believed Gardeley made clear that
the California gang statute “increased punishment only when a defendant
‘committed a felony to aid or abet criminal conduct of a group that has
as a primary function the commission of specified criminal acts and whose
members have actually committed specified crimes, and who acted with
the specific intent to do so.’ ” 555 F.3d at 1080 (quoting Gardeley, 14
Cal.4th at n.10) (emphasis added in Briceno). When read in the context,
however, the statement more accurately appears to reflect only the Garde-
ley Court’s view that section 186.22 does not punish a defendant for other
gang members’ unrelated criminal actions. See Gardeley, 14 Cal.4th at
624 n.10.
14
The Briceno majority did not explain why the use of a gang moniker
during the robbery in Garcia by members of a “turf-oriented” gang, in the
“heart of their turf,” as but one of a series of similar robberies in the same
area, see 395 F.3d at 1103, did not qualify as “circumstantial evidence”
of an intent to benefit the gang.
6918 EMERY v. CLARK
Appeal regarding the proper interpretation of the “specific
intent” element that must be proven beyond a reasonable
doubt before a criminal street gang enhancement may be
imposed pursuant to section 186.22(b)(1). The main point of
disagreement is whether an offense of conviction qualifies as
“any criminal conduct by gang members” that the defendant
must have specifically intended to “promote, further, or
assist,” or whether proof of some “other” criminal conduct,
apart from the offense of conviction, is required. A second,
but equally important matter of dispute is whether evidence
that the defendant acted in concert with another gang member,
with the specific intent to “assist” him or her in committing
the crime of conviction, will satisfy the “specific intent” ele-
ment in section 186.22(b)(1). A further point of disagreement
is about the quantum and quality of proof a “gang expert”
may provide to satisfy the “specific intent” requirement under
section 186.22(b)(1).

The conflict between the state and federal courts on these
issues will likely increase as the many dozens of pending Cal-
ifornia criminal cases with gang enhancements wend their
way through the direct appeal and collateral review processes,
and may not be resolved until the California Supreme Court
sees its way clear to take up the issue. As the gulf between
these two bodies of law widens, moreover, the tension
between California state law as declared by the California
Courts of Appeal, and the federal courts’ “best guess” as to
the circumstances under which the California Supreme Court
would uphold or strike down gang enhancements, will only
grow.

We realize that our request is a bit unusual. Indeed, we
have not found any other published order or decision in which
a federal court of appeals has asked the California Supreme
Court to interpret a provision of the California Penal Code, or
any decision in which California’s high court agreed to inter-
pret a state criminal statute at the behest of a federal court—
much less any request for an authoritative interpretation of a
 EMERY v. CLARK 6919
California criminal statute to be applied in federal habeas cor-
pus proceedings. But we see nothing in the California Rules
of Court that precludes our request, and we believe principles
of comity will be best served by our making this request now,
rather than allowing the conflict over these important ques-
tions of state law to fester.

On questions of state law we take very seriously our obliga-
tion to “follow the decision of the intermediate appellate
courts of the state unless there is convincing evidence that the
highest court of the state would decide differently.” Owen,
713 F.2d at 1464. But where, as here, there are conflicting
views within our own court as to whether the California
Supreme Court would reject the nearly unanimous decisions
of the California Courts of Appeal on these issues, see Bri-
ceno, 555 F.3d at 1080-82, cf. id. at 1086-90 (Wardlaw, J.,
dissenting), we believe the California Supreme Court should
have the opportunity to speak for itself. We would be grateful
if the Court would take that opportunity here, and grant our
request to answer the certified questions.

V. Stay and Withdrawal from Submission

All further proceedings in this case are stayed pending final
action by the California Supreme Court. This case is with-
drawn from submission until further order of this court. This
panel retains jurisdiction over any further proceedings in this
case upon receipt of a decision from the California Supreme
Court answering the certified question or a decision declining
to answer the certified question.

The parties shall notify the clerk of this court within ten
(10) days after the California Supreme Court accepts or
rejects certification. If the California Supreme Court accepts
the certified question or questions, the parties shall file a joint
status report in this court every sixty days after the date of
acceptance, or more frequently if circumstances warrant, and
6920 EMERY v. CLARK
again within ten days if the California Supreme Court renders
an opinion.

In accordance with rule 8.548 of the California Rules of
Court, the clerk of this court is hereby directed to transmit
forthwith to the California Supreme Court, under official seal
of the Ninth Circuit, the original and ten copies of this order,
along with all relevant briefs and excerpts of record. The clerk
shall also file a certificate of service on the parties to this
appeal. Cal. R. Ct. 8.548(c)-(d).

It is so ORDERED.