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.
OPINION
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 27, 2011
Before: Diarmuid F. O’Scannlain* and Barry G. Silverman,
Circuit Judges, and Suzanne B. Conlon, District Judge.**
Per Curiam Opinion
*The Honorable Diarmuid F. O’Scannlain was drawn to replace the
Honorable Cynthia H. Hall, who died on February 26, 2011.
**The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
7041
EMERY v. CLARK 7043
COUNSEL
Vivian A. Fu, San Francisco, California, argued the cause and
filed the briefs for the petitioner-appellant.
7044 EMERY v. CLARK
James William Bilderback II, Office of the Attorney General,
Los Angeles, California, argued the cause and filed the briefs
on behalf of the respondent-appellee. With him on the briefs
were Edmund G. Brown Jr., Attorney General of California,
Pamela C. Hamanaka, Senior Assistant Attorney General, and
Deborah J. Chuang, Deputy Attorney General.
OPINION
PER CURIAM:
Ruben Anthony Emery appeals the district court’s denial of
his petition for a writ of habeas corpus. The facts of the
underlying conviction and procedural history are set forth in
detail in our previous order certifying questions of state law
to the California Supreme Court. See Emery v. Clark, 604
F.3d 1102 (9th Cir. 2010). We repeat them here only as neces-
sary.
I
Emery was convicted after a state court jury trial of
attempted second degree robbery and first degree murder of
Long Beach shop owner Henry Chow, with the special cir-
cumstance that Emery was “an active participant in a criminal
street gang,” and “the murder was carried out to further the
activities of the criminal street gang.” Cal. Penal Code
§ 190.2(a)(22). The jury also found that a principal discharged
a firearm, resulting in Chow’s death. Id. § 12022.53(d), (e)(1).
The jury imposed two gang enhancements pursuant to Cali-
fornia Penal Code § 186.22(b)(1) because it found that Emery
committed the robbery and used a firearm in the commission
of the robbery “for the benefit of, at the direction of, or in
association with [a] criminal street gang, with the specific
intent to promote, further, or assist in . . . criminal conduct by
gang members.” Id. §§ 186.22(b)(1), 12022.53(e)(1)(A).
EMERY v. CLARK 7045
Emery claims that his due process rights were violated
because there was insufficient evidence to support the special
circumstance finding pursuant to section 190.2(a)(22) and the
gang enhancements imposed pursuant to sections
186.22(b)(1) and 12022.53(d) and (e)(1). See Jackson v. Vir-
ginia, 443 U.S. 307, 319, 324 (1979).
On direct appeal, the California Court of Appeal considered
and rejected Emery’s argument regarding the sufficiency of
the evidence to support the gang enhancements and special
circumstance findings. People v. Emery, No. B180005, 2006
WL 1431193 (Cal. Ct. App. May 25, 2006). The California
Supreme Court summarily denied Emery’s petition for review
on September 13, 2006, see People v. Emery, Cal. Sup. Ct.
No. S144683, and denied his petition for a writ of habeas cor-
pus on June 24, 2009, see Emery (Ruben) on H.C., Cal. Sup.
Ct. No. S172933.
Emery filed his federal habeas petition in April 2007, but
the district court denied relief on June 21, 2007. After the dis-
trict court denied a certificate of appealability (“COA”), this
court granted a COA on July 29, 2008, as to Emery’s claims
regarding the sufficiency of the evidence to support the gang
enhancements.1
II
We review de novo a district court order denying a petition
for writ of habeas corpus. Insyxiengmay v. Morgan, 403 F.3d
657, 665 (9th Cir. 2005). The district court’s application of
the law to the facts is also reviewed de novo. Id. (citing Lam-
bert v. Blodgett, 393 F.3d 943, 965 (9th Cir. 2004)).
1
We subsequently expanded the scope of the COA to include Emery’s
claims of insufficiency of the evidence as to the “gang enhancement”
embedded in the section 190.2(a)(22) special circumstance for a murder
carried out by an active member of a criminal street gang to “further the
activities of the criminal street gang.” See Emery v. Clark, 604 F.3d at
1111 n.6.
7046 EMERY v. CLARK
A petitioner can obtain relief on federal habeas claims that
have been “adjudicated on the merits in State court proceed-
ings” only if the state court’s adjudication resulted in a deci-
sion that (1) was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States,” or (2) was “based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). Because Emery’s federal claims were presented to
the California Supreme Court, “it may be presumed that the
state court adjudicated the claim[s] on the merits in the
absence of any indication or state-law procedural principles to
the contrary.” Harrington v. Richter, 131 S. Ct. 770, 784-85
(2011). “Where a state court’s decision is unaccompanied by
an explanation, the habeas petitioner’s burden still must be
met by showing there was no reasonable basis for the state
court to deny relief.” Id. at 784.
III
A due process claim based on insufficiency 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. Jackson, 443 U.S. at 319, 324. When we
undertake collateral review of a state court decision rejecting
a claim of insufficiency of the evidence pursuant to 28 U.S.C.
§ 2254(d)(1), however, our inquiry is even more limited; that
is, we ask only whether the state court’s decision was contrary
to or reflected an unreasonable application of Jackson to the
facts of a particular case. Juan H. v. Allen, 408 F.3d 1262,
1274-75 (9th Cir. 2005).
[1] Insufficient evidence claims are reviewed by looking at
the elements of the offense under state law. Jackson, 443 U.S.
at 324 n.16; see also Bradshaw v. Richey, 546 U.S. 74, 76
(2005) (in determining whether sufficient evidence supports
a state law statutory enhancement, federal courts are bound by
EMERY v. CLARK 7047
“a state court’s interpretation of state law”). Section
186.22(b)(1)’s gang enhancement may only be applied if the
prosecution proves the following two elements beyond a rea-
sonable doubt: (1) that Emery committed a felony “for the
benefit of, at the direction of, or in association with any crimi-
nal street gang,” and (2) that he did so “with the specific
intent to promote, further, or assist in any criminal conduct by
gang members.”
A
Although Emery does not explicitly challenge the suffi-
ciency of the evidence as to the first prong of section 186.22’s
gang enhancement, he does argue that there was insufficient
evidence to prove that his crimes were “gang-related.” As the
California Supreme Court recently made clear in People v.
Albillar, 244 P.3d 1062 (Cal. 2010), however, this issue is
properly construed as a challenge to the first prong of section
186.22(b)(1)—i.e., as a claim that there was insufficient evi-
dence to prove that the crimes were committed “for the bene-
fit of, at the direction of, or in association with a criminal
street gang.”
[2] It is true, as Emery points out, that even when two or
more gang members commit a crime together, they may “be
on a frolic and detour unrelated to the gang.” Albillar, 244
P.3d at 1072 (citation omitted). Nevertheless, we are satisfied
that there was ample evidence presented to the jury that
Emery’s crimes were committed in association with a street
gang. As Abel Morales, the prosecution’s gang expert, testi-
fied at trial, shooting Chow “for just a simple deal that had
occurred with one of [his] friends . . . shows that he had to go
and do something worse than just beating him, . . . because
[Chow] disrespected . . . his gang by messing with one of his
friends . . . .” According to Morales, it was important for
Emery to retaliate against Chow to maintain the “respect” that
was essential to Emery’s identity as a “hard-core” gang mem-
ber. As Morales explained, Emery’s use of lethal force “over
7048 EMERY v. CLARK
a fight about peanuts,” would raise his status within the West-
side Longos (“WSL”), the Westside Stoners (“WSS”), and the
Eastside Longos (“ESL”), and would inspire fear in the com-
munity.
[3] Although the defense argued that Emery killed Chow
in an explosion of rage at Chow’s mistreatment of Emery’s
accomplice’s brother, and that this rage gave rise to a need to
take “personal revenge,” the jury apparently agreed with the
prosecution that this explanation for Emery’s actions was
implausible. There was ample evidence supporting the jury’s
conclusion that Emery’s use of extreme violence to avenge a
minor slight against a casual acquaintance who was a member
of an affiliated gang was “gang related.” The California
Supreme Court’s denial of Emery’s sufficiency of the evi-
dence challenge as to the first prong of section 186.22 was
not, therefore, an unreasonable application of federal law.
B
The more difficult issue presented in this appeal is whether
the California Supreme Court reasonably applied federal law
in concluding that the evidence presented at trial was suffi-
cient to support the jury’s finding that Emery committed the
attempted robbery and murder of Henry Chow “with the spe-
cific intent to promote, further, or assist in any criminal con-
duct by gang members.” Cal. Penal Code § 186.22(b)(1).
1
[4] The Ninth Circuit has twice stated that section 186.22’s
gang enhancement can only be applied when the defendant
had the specific intent to facilitate gang members’ criminal
activities other than the charged crime. See Briceno v. Scrib-
ner, 555 F.3d 1069, 1078-83 (9th Cir. 2009); Garcia v. Carey,
395 F.3d 1099, 1102-03 (9th Cir. 2005). Emery contends that
there is no evidence in the record suggesting that he murdered
Chow to further any other criminal gang activity. The Ninth
EMERY v. CLARK 7049
Circuit’s interpretation of section 186.22 is, however, at odds
with several decisions of the California Courts of Appeal.
According to the state courts, evidence that the defendant had
the specific intent to help a gang member commit the charged
crime is enough to justify application of the enhancement. See
People v. Hill, 47 Cal. Rptr. 3d 875 (Cal. Ct. App. 2006);
People v. Romero, 43 Cal. Rptr. 3d 862 (Cal. Ct. App. 2006).
To resolve this matter of interpretation, we certified the fol-
lowing question to the California Supreme Court:
Does California’s criminal street gang enhancement
statute, in particular the element of “specific intent to
promote, further, or assist in any criminal conduct by
gang members” in California Penal Code section
186.22(b)(1), require proof that the defendant specif-
ically intended to promote, further, or assist in other
criminal gang activity, apart from the offense of con-
viction?2
Emery, 604 F.3d at 1103.
[5] The California Supreme Court initially granted our
request. See Emery v. Clark, Cal. Sup. Ct. No. S182670 (June
23, 2010). Before it answered our question, however, it defin-
itively interpreted § 186.22(b)(1) in Albillar. In Albillar, the
Court expressly disapproved the Ninth Circuit’s interpretation
of section 186.22(b)(1). 244 P.3d at 1074-76. Specifically,
Albillar held that “ ‘the specific intent to promote, further, or
2
As noted supra, we expanded the COA in our certification order to
include Emery’s challenge to the special circumstance finding under Cali-
fornia Penal Code § 190.2(a)(22). We have assumed that a failure of proof
as to the “specific intent” element in the second prong of section
186.22(b)(1) would apply to the section 190.2(a)(22) special circumstance.
As there is no separate authority interpreting the language “to further the
activities of a criminal street gang,” we intend our discussion of the suffi-
ciency of the evidence as to specific intent under section 186.22(b)(1) to
pertain to the section 190.2(a)(22) special circumstance as well.
7050 EMERY v. CLARK
assist in any criminal conduct by gang members’[ ] is unam-
biguous and applies to any criminal conduct, without a further
requirement that the conduct be ‘apart from’ the criminal con-
duct underlying the offense of conviction sought to be
enhanced.”3 Id. at 1075. Accordingly, we recognize that the
California Supreme Court has overruled Briceno and Garcia’s
interpretation of section 186.22(b)(1).
The California Supreme Court consequently vacated its
grant of our request in light of Albillar. We now apply the
California Supreme Court’s authoritative interpretation of sec-
tion 186.22 to Emery’s due process claims.
2
[6] To sustain Emery’s gang enhancements, there must
have been evidence upon which a rational trier of fact could
find that Emery acted with the “specific intent to promote,
further, or assist in” some type of “criminal conduct by gang
members,” which may include the crimes of conviction. Id. In
this case, there was conflicting testimony regarding whether
Danny Alvarez, Emery’s confederate in the murder and
attempted robbery of Chow, was himself a gang member.
Defense witness Antonio Gonzalez testified that he had
known Alvarez since childhood and knew him to be a gang
member, with the gang moniker “Fear” or “Matar.” Alvarez
denied that he was a gang member, claiming to be only a
“tagger,” but admitted that he hung out with gang members
in his mother’s house, where gang members frequently gath-
ered to drink and do drugs, to commit “fraud,” and to be initi-
ated into the gangs, and that he was known as “Fear” because
he “intimidated” and “frightened” people. Alvarez also testi-
3
We note that the Court in Albillar also clarified that section
186.22(b)(1) does not require the “specific intent to promote, further, or
assist a gang-related crime.” 244 P.3d at 1075. The statute requires only
“the specific intent to promote, further, or assist criminal conduct by gang
members.” Id. at 1075-76.
EMERY v. CLARK 7051
fied that he had spent time with Emery at his mother’s house
—a well-known hangout for members of the WSL, WSS, and
ESL—on three or four occasions in the month before the mur-
der and attempted robbery of Chow. Both Alvarez and his
brother testified that they knew Emery was a member of the
WSL gang. Furthermore, in pleading guilty to voluntary man-
slaughter for his involvement in Chow’s murder, Alvarez
admitted that his participation in the crimes was in further-
ance of a street gang.4
[7] Morales testified that it was a fair inference from the
circumstances of the shooting that Emery believed Chow
needed to be “taught” that there were severe consequences for
directly disrespecting a young gang member, Alvarez’s
brother, and indirectly disrespecting Alvarez, Emery, and the
affiliated gangs. In these circumstances, it would not be
unreasonable to conclude that a rational trier of fact could
have found that when Emery and Alvarez acted together to
commit the robbery and murder, Emery specifically intended
to “assist in” criminal conduct (murder and robbery) by
known gang members (himself and Alvarez) within the mean-
ing of section 186.22(b)(1). Id. at 1076.
IV
For all the foregoing reasons, the order denying Emery’s
petition for writ of habeas corpus is AFFIRMED.
4
We are aware of no California or federal case that distinguishes
between “promoting” and “furthering” criminal conduct by gang mem-
bers, and the parties do not even attempt to parse the language of section
186.22(b)(1) in this regard. Thus, we consider Alvarez’s admission that
the murder of Chow was carried out to further gang activities relevant evi-
dence that the crime was committed with specific intent to “promote”
criminal conduct by gang members.