NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 31 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOSE CRUZ, No. 11-56045
Petitioner - Appellant, D.C. No. 2:10-cv-08392-VBF-
MLG
v.
CONNIE GIPSON, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Argued and Submitted March 5, 2014
Pasadena, California
Before: PREGERSON, PAEZ, and HURWITZ, Circuit Judges.
Jose Cruz appeals the district court’s denial of his petition under 28 U.S.C. §
2254 for a writ habeas corpus, challenging the jury’s finding that he committed a
felony “for the benefit of, at the direction of, or in association with any criminal
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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). We affirm.
Cruz argues that the jury’s finding was not sufficiently supported by the
evidence, as required by Jackson v. Virginia, 443 U.S. 307, 319 (1979). On habeas
review, sufficiency-of-the-evidence claims must overcome two layers of deference.
Juan H. v. Allen, 408 F.3d 1262, 1274–75 (9th Cir. 2005); see also Coleman v.
Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam). First, a reviewing court
defers to the factfinder’s resolution of all conflicting evidence, overturning the
jury’s verdict “only if no rational trier of fact could have agreed with the jury.”
Johnson, 132 S. Ct. at 2062. Second, a habeas court must sustain a state court
decision rejecting a sufficiency-of-the-evidence challenge unless the decision
reflects an unreasonable application of the Jackson standard. Juan H., 408 F.3d at
1274–75; see also Johnson, 132 S. Ct. at 2062.
In the last-reasoned state court decision, the California Court of Appeal
explained that the gang expert’s testimony that “it is MS13’s practice to discourage
crimes in its territory by individuals who are not members of MS13,” supported an
inference that Cruz and Vicente Perez “would have a strong interest in learning
whether the other was a gang member before committing a crime with him in gang
territory.” People v. Cruz, No. B211979, 2009 WL 4681814, at *4 (Cal. Ct. App.
2
Dec. 10, 2009). In light of the location of the crime, the jury could reasonably
infer that Cruz knew Perez was a member of MS13 and was also an MS13
member. Moreover, the jury was entitled to credit the gang expert’s explanation
that the manner in which Cruz and Perez committed the robbery indicates that Cruz
had some status over Perez within the gang because a non-member or a
subordinate would not order an MS13 member to hand over a weapon.
Furthermore, the type of crime and Cruz’s gang tattoos also buttress the conclusion
that he is a member of MS13.
It was neither contrary to, nor an unreasonable application of, the Jackson
standard to conclude, based on this evidence, that Cruz and Perez “came together
as gang members” to commit the offense, satisfying the “in association with”
provision of California Penal Code section 186.22(b)(1). People v. Albillar, 119
Cal. Rptr. 3d 415, 427 (Cal. 2010). The jury was not required to accept Cruz’s
alternative theory of the case. See Emery v. Clark, 643 F.3d 1210, 1214 (9th Cir.
2011) (explaining that the jury was entitled to disagree with the defendant’s
version of events and agree with the prosecution that the defendant’s explanation
was “implausible”).
Sufficient evidence also supports the inference that Cruz knew Perez was a
member of MS13 and intended to help Perez commit the robbery. See People v.
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Cruz, 2009 WL 4681814, at *5. Nothing more is required to satisfy the specific
intent requirement of California Penal Code section 186.22(b)(1). See Albillar,
119 Cal. Rptr. 3d at 431 (explaining that the statute requires only “the specific
intent to promote, further, or assist criminal conduct by gang members” and
“[t]here is no statutory requirement that . . . ‘criminal conduct by gang members’
be distinct from the charged offense” or that the conduct be a “gang-related
crime”); see also Emery, 643 F.3d at 1215.
AFFIRMED.
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