Briceno v. Scribner

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ALBERTO FRANCISCO BRICENO,  No. 07-55665
Petitioner-Appellant, D.C. No.
v.  CV-05-00455-
A. K. SCRIBNER, Warden, MMM
Respondent-Appellee.
 OPINION

Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding

Argued and Submitted
August 8, 2008—Pasadena, California

Filed February 23, 2009

Before: Roger J. Miner,* Kim McLane Wardlaw, and
Marsha S. Berzon, Circuit Judges.

Opinion by Judge Miner;
Partial Concurrence and Partial Dissent as to Part III by
Judge Wardlaw

*The Honorable Roger J. Miner, Senior United States Circuit Judge for
the Second Circuit, sitting by designation.

2077
2080 BRICENO v. SCRIBNER

COUNSEL

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

Ronald A. Jakob, Deputy Attorney General; Dane R. Gillette,
Chief Assistant Attorney General; Gary W. Schons, Senior
Assistant Attorney General (Edmund G. Brown, Jr., Attorney
General for the State of California), San Diego, California, for
the respondent-appellee.
 BRICENO v. SCRIBNER 2081
OPINION

MINER, Circuit Judge:

I. Introduction

Alberto Francisco Briceno appeals from a judgment of the
United States District Court for the Central District of Califor-
nia (Morrow, J.) denying his petition for a writ of habeas cor-
pus. Briceno was convicted, following a jury trial, of four
counts of second degree robbery and four counts of street ter-
rorism in the Superior Court of Orange County. The jury also
found that the robberies were committed for the benefit of a
criminal street gang. Briceno pursued various challenges to
his convictions in the California state courts and in the Dis-
trict Court. Ultimately, we granted a certificate of appeala-
bility as to two issues that are now before us to resolve: “(1)
whether there is sufficient evidence to support the gang
enhancement convictions for each robbery; and (2) whether
the trial court erred by allowing the prosecution’s expert to
testify that the gang enhancement allegations were true.” See
28 U.S.C. § 2253(c)(3). After setting forth the background
facts, we analyze these issues in reverse order, answering both
in the negative.

II. Of the Crimes

Briceno and Evaristo Landin robbed four individuals in
Orange County on Christmas Day 2000 in what the California
Court of Appeal aptly characterized as a “grinchly crime
wave.” People v. Briceno, 135 Cal. Rptr. 2d 912, 913 (Ct.
App. 2003), rev’d in part on other grounds, 99 P.3d 1007
(Cal. 2004). The two gained little from their criminal forays.
Both were members of the Hard Times Street Gang, and
Landin’s forearms were marked with the gang’s tattoos. Their
first victim was Ross Lambert, whom they held at gunpoint
outside a bar in Costa Mesa at about 1:00 A.M. Lambert gave
them the $10.50 he had in his pocket, and he felt a sharp
2082 BRICENO v. SCRIBNER
object placed against his neck when they demanded more.
Lambert apparently had no more to give, and the two thieves
drove away in a Cadillac, whose license plate Lambert
recorded before contacting the police.

About an hour and a half later, Richard Jess noticed a
parked sedan with its headlights on as he was walking through
a Comfort Inn parking lot. Landin approached him from the
rear, put his arm around Jess’s neck, stuck a gun in his ribs,
and demanded his valuables. Landin was able to extricate
only $2.00 from Jess. During this time, the sedan was moving
forward slowly in an adjoining parking lot. After the encoun-
ter, Jess saw Landin, who was wearing a stocking cap and
designer jeans, run over to, and enter, the sedan.

Within the hour, Judy Yonamine arrived at her residence in
Garden Grove. As she unloaded some items from the trunk of
her car, another car pulled up and stopped, with its lights on
and its engine still running. Landin emerged from the front
passenger side and asked for money. When Yonamine said
she had none, Landin produced a gun and took her wallet,
which contained $25.00. Landin then ran back to the car,
which sped away. Soon thereafter, Landin approached Jesus
Mendoza, who was unloading his van in Anaheim. Mendoza
gave up his wallet and $18.00 in cash when Landin pointed
a pistol at him.

Landin was in the passenger seat and Briceno was behind
the wheel when Anaheim Officer Raymond Drabek stopped
the Cadillac sedan in which they were traveling as it made a
U-turn on Harbor Boulevard near Disneyland. The car and
license plate number matched the description provided by the
robbery victims. Discovered under the front passenger seat
were $300.00 in cash and a pellet gun. A beanie cap identified
by one of the victims as worn by one of the perpetrators was
found in the Cadillac, and small amounts of cash were found
on both Landin and Briceno.
 BRICENO v. SCRIBNER 2083
III. Of the Trial

At trial in the Superior Court, the prosecution sought to
persuade the jury that the four robberies were committed for
the benefit of, at the direction of, or in association with a
criminal street gang, in order to call forth the enhanced penal-
ties attendant to such a finding under California law. See CAL.
PENAL CODE § 186.22(b). In this connection, counsel for the
prosecution and counsel for Briceno agreed to the following
oral stipulation, which was read to the jury:

It is stipulated between the People and Defendant
Briceno that Hard Times was a criminal street gang
within the meaning of Penal Code Section 186.22 at
all times relevant to this case.

It is further stipulated that on 12/25/2[ ]000, that
Defendant Briceno actively participated in the Hard
Times criminal street gang with knowledge that the
Hard Times members have engaged in a pattern of
criminal gang activity, as defined in Penal Code Sec-
tion 186.22. It is specifically not stipulated that
Defendant Briceno aided and abetted another gang
member in committing the crime of [robbery] on
12/25/2[ ]000.

Following the reading of the Stipulation, the court instructed
the jury that the Stipulation applied to Briceno only and not
to Landin, who was charged as a co-defendant and with
whom Briceno was being jointly tried.

In support of the criminal street gang enhancement, the
prosecution also presented the trial testimony of Peter Vi, who
was employed in the position of Gang Investigator by the City
of Garden Grove Police Department. Vi related his training
and experience in the investigation of criminal street gangs
and was offered as an expert witness by the prosecution. He
testified that he had made several hundred arrests related to
2084 BRICENO v. SCRIBNER
gang membership and described the structure, operations, cul-
ture, and criminal activities of gangs generally.

Vi related the manner in which members are inducted into
gangs, the conduct required of gang members, and their duties
of loyalty to the gang. He also described the symbols of gang
membership, including tattoos and “monikers” (i.e., names
given to gang members by other members). With regard to the
role of respect in gang culture, Vi testified:

Respect means everything to a gang member. You
know, he lives and dies by this term, respect.
Respect means power and they gain respect by using
violence to gain their power. And not only respect of
self, for the gang, gain their status in the gang,
increase their recruitment of gang members into that
gang.

Vi testified that he was familiar with the activities of the
Hard Times street gang, having been assigned to patrol its
area of operations. He described Hard Times as a “territorial
street gang” and as a “criminal street gang” that dominated a
three-block neighborhood in Garden Grove. Vi estimated the
total membership of the gang as approximately two hundred.
According to Vi, gang members usually commit crimes with
other gang members, and robbery is considered a status-
enhancing act. The following question was put to Vi at trial:

Now, if I were to ask you to assume that we had
two Hard Times criminal street gang members, one
driving, one in the passenger seat, drive to Costa
Mesa on December 25th of the year 2000, and then
at a little after 1:00 a passenger got out, pointed a
pellet gun at one and robbed him of money and got
back into the car and the two Hard Time members
drove off, and then at a little after 2:30 A.M., in
Anaheim, same two individuals with the same per-
son driving approached a second person, passenger
 BRICENO v. SCRIBNER 2085
getting out, pulling the pellet gun and, once again,
robbing an individual of money, getting back in the
car and driving off.

And then assuming further that around 3:30 that
same morning, that a third individual is approached
in an alley off Mallul Street in Anaheim, once again,
same person driving, passenger gets out, points the
pellet gun at somebody and takes money from him,
and then a few minutes later, or around the same
time, right around 3:30 in Garden Grove on Bayport,
the same two individuals with the same person driv-
ing, the passenger gets out of the car, goes up to an
individual, displays the gun in some manner and take
properties from her, and then gets back into the car
and drives off, and then the same two individuals are
stopped five to ten minutes later at Katella and Ana-
heim.

Do you have an opinion as to whether or not the
crimes of [robbery], each one of those four crimes
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’s response, following an overruled objection, was as fol-
lows:

My opinion is that, based on the scenario you gave
me, the two Hard Timers, the crimes they were
involved in benefit the gang itself, the action that
they have done to glorify the gang.

....

Not only do they glorify the gang but personally
they increase the status of those two in the gang
2086 BRICENO v. SCRIBNER
itself, because, one, they commit this crime, the pos-
sibility of them involving other crimes are or being
asked to do other crimes in the gang —

....

It gives them the opportunity to participate in
other crimes if other Hard Timers solicit them to
assist.

Subsequently, Vi was asked whether it would change his
opinion to know that the robberies were committed to buy
Christmas presents. He said it would not, because the status
of the individuals would nevertheless be increased within the
gang. On cross-examination, when asked about a robbery
involving only a small amount of money, he responded that
“it would glorify the gang not in the amount taken but it
would glorify the gang that the actions were taken by the gang
members.”

On July 13, 2001, the jury convicted Briceno of four counts
of second degree robbery, in violation of California Penal
Code § 211, and four counts of street terrorism, in violation
of California Penal Code § 186.22(a). The jury also found that
all four robberies were committed for the benefit of, at the
direction of, or in association with a criminal street gang
within the meaning of California Penal Code § 186.22(b)(1).
The jury made the same findings as to Landin.

The trial court found separately that Briceno had committed
two prior serious or violent felonies within the meaning of the
California Three Strikes Law and had previously served a
prison term. Taking all factors into account and staying the
imposition of the sentence for the street terrorism convictions,
the court imposed upon Briceno an indeterminate sentence of
27 years to life and a determinate sentence of 23 years and 4
months. Included in the sentences were enhancements based
on the criminal street gang findings.
 BRICENO v. SCRIBNER 2087
IV. Of the State Court Appeals and the Habeas Petition

Briceno appealed his conviction to the California Court of
Appeal. On June 20, 2003, the Court of Appeal issued an
opinion in which it held that the criminal street gang enhance-
ments provided under § 186.22 “cannot be used to transform
an unenumerated offense into a ‘serious’ felony” under the
California Penal Code. See Briceno, 135 Cal. Rptr. 2d at 913.
Accordingly, the Court of Appeal found that one of Briceno’s
prior convictions did not qualify as a serious or violent felony
under California’s Three Strikes Law, and remanded his case
for resentencing. The Court of Appeal affirmed Briceno’s
judgment in all other respects. Id.

Thereafter, Briceno filed a petition for review in the Cali-
fornia Supreme Court, contending that the admission in evi-
dence of the gang expert’s opinion testimony violated his jury
trial and due process rights. He also contended that there was
insufficient evidence to support one of his robbery convic-
tions and the gang enhancements. The State of California also
petitioned the California Supreme Court for review, asserting
that the Court of Appeal erred in finding that felonies with
gang enhancement are not serious felonies under the Califor-
nia Three Strikes Law. On September 24, 2003, the Supreme
Court granted the State’s petition only and, on November 4,
2004, issued its opinion in the case. People v. Briceno, 99
P.3d 1007 (Cal. 2004). In the opinion, the court determined
that felonies with gang enhancements are serious felonies
within the meaning of California’s Three Strikes Law. Id. at
1014-15; see also Cal. Penal Code § 667. The court therefore
reversed the judgment of the Court of Appeal insofar as it
found that one of Briceno’s convictions did not qualify as a
serious felony, and affirmed the judgment in all other
respects. Briceno, 99 P.3d at 1015.

On May 16, 2005, Briceno filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 in the United
States District Court for the Central District of California. In
2088 BRICENO v. SCRIBNER
his petition, Briceno advanced the following three grounds for
relief:

Petitioner was denied due process and a trial by
jury as a result of the gang expert’s improper opinion
testimony. . . .

....

Petitioner was denied due process because there
was insufficient evidence to support the robbery con-
viction on count 4 and the gang enhancements on
Counts 1-4 beyond a reasonable doubt. . . .

....

Petitioner was denied due process because there
was insufficient evidence that his 1998 conviction
was a prior felony conviction for purposes of the 3
strikes law and the enhancement under Pen. Code
sec 667(a).

On May 11, 2006, Magistrate Judge Lum issued a compre-
hensive Report and Recommendation recommending denial
of the petition in all respects. The District Judge adopted the
Report and Recommendation over Briceno’s objections in an
Order dated July 19, 2006, and directed that judgment be
entered dismissing the petition with prejudice. On May 11,
2007, the District Court issued an Order denying an applica-
tion filed by Briceno for a certificate of appealability, finding
that Briceno “has not made a substantial showing of the denial
of a constitutional right, as is required to support the issuance
of a Certificate of Appealability.” An application for a certifi-
cate thereafter made to this court was granted by Order filed
on August 2, 2007, with respect to the issues set forth in Part
I above.
 BRICENO v. SCRIBNER 2089
ANALYSIS

I. Of the Standards to be Applied

We are constrained to undertake a de novo review of a dis-
trict court’s decision to deny a petition for habeas corpus. See
Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir. 2004).
Habeas relief cannot be granted to a state prisoner “with
respect to any claim that was adjudicated on the merits in
State court . . . unless the adjudication of the claim . . .
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States;” or
“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). Briceno seeks habeas relief from the
state-court adjudication in his case on the basis of the first of
these standards.

The Supreme Court has observed that § 2254(d) established
a “highly deferential standard for evaluating state court rul-
ings.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (quoting
Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)). A state
court’s decision is “contrary to” clearly established federal
law only where “the state court arrives at a conclusion oppo-
site to that reached by [the Supreme] Court on a question of
law or if the state court decides a case differently than [the
Supreme] Court has on a set of materially indistinguishable
facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
There is an “unreasonable application” of clearly established
federal law when a state court “correctly identifies the gov-
erning legal rule but applies it unreasonably to the facts of a
particular prisoner’s case.” Id. at 407-08. A state court deci-
sion can also involve an unreasonable application of clearly
established precedent “if the state court either unreasonably
extends a legal principle from [the Supreme Court’s] prece-
dent to a new context where it should not apply or unreason-
ably refuses to extend that principle to a new context where
2090 BRICENO v. SCRIBNER
it should apply.” Id. at 407. The state court’s error must be
one that the habeas court concludes is objectively unreason-
able, not merely erroneous or incorrect. Id. at 409-11.

II. Of the Challenge to the Expert Testimony

Briceno contends that the state appellate court, in affirming
the state trial court, unreasonably applied established federal
law by allowing expert testimony violative of his constitu-
tional right to due process and a fair trial. Specifically, Bri-
ceno asserts that a reasonable application of settled law would
result in a finding of constitutional error in admitting Peter
Vi’s testimony that the robberies for which Briceno was con-
victed were committed for the benefit of a criminal street
gang. It will be remembered that Vi was given a hypothetical
question asking him to assume the precise facts of the rob-
beries and, based on these facts, to tell the jury whether each
crime was 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 . . . gang.” Vi’s response, the object of this
challenge, was to give his “opinion . . . that . . . the two Hard
Timers, the crimes they were involved in benefit the gang
itself, the action that they have done to glorify the gang.”

Briceno claims that Vi’s “testimony should have been
excluded because it was based on facts insufficient to support
an opinion on the issue, constituted improper opinion on guilt,
and essentially directed the jury to find the gang enhance-
ments true.” In holding that the trial court did not abuse its
discretion in determining that Vi’s expert opinion would assist
the jury in deciding whether the prosecution had proved the
gang enhancement allegations, the appellate court referred to
California precedent:

As People v. Olguin (1994) 31 Cal. App. 4th 1355,
37 Cal. Rptr. 2d 596[,] explains, “[t]he requirements
for expert testimony are that it relate to a subject suf-
 BRICENO v. SCRIBNER 2091
ficiently beyond common experience as to assist the
trier of fact and be based on matter that is reasonably
relied upon by an expert in forming an opinion on
the subject to which his or her testimony relates.
Such evidence is admissible even though it encom-
passes the ultimate issue in the case.”

People v. Briceno, Nos. G029525, G029607, 2003 WL
1710927, at *2 (Cal. Ct. App. Mar. 28, 2003) (internal cita-
tions omitted). Indeed, California Evidence Code § 801(a)
provides that an expert witness may give opinion testimony if
the opinion is “[r]elated to a subject that is sufficiently beyond
common experience that the opinion of an expert would assist
the trier of fact.” Applying its precedent, the Court of Appeal
found that “Vi’s expert testimony focused on whether these
particular incidents were ‘gang-related activity.’ . . . Vi did
not offer opinions on the definitions of crimes, whether a
crime had been committed, or on defendant’s guilt.” Briceno,
2003 WL 1710927, at *2 (internal citations omitted).

[1] In any event, evidence erroneously admitted warrants
habeas relief only when it results in the denial of a fundamen-
tally fair trial in violation of the right to due process. See
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Federal
habeas courts do not review questions of state evidentiary
law. Id. Our habeas powers do not allow us to vacate a con-
viction “based on a belief that the trial judge incorrectly inter-
preted the California Evidence Code in ruling” on the
admissibility of evidence. Id. at 72. With regard to expert tes-
timony, we recently noted that we have found no cases “sup-
port[ing] the general proposition that the Constitution is
violated by the admission of expert testimony concerning an
ultimate issue to be resolved by the trier of fact.” Moses v.
Payne, 543 F.3d 1090, 1105 (9th Cir. 2008). “Although ‘[a]
witness is not permitted to give a direct opinion about the
defendant’s guilt or innocence . . . . an expert may otherwise
testify regarding even an ultimate issue to be resolved by the
trier of fact.’ ” Id. at 1106 (quoting United States v. Lockett,
2092 BRICENO v. SCRIBNER
919 F.2d 585, 590 (9th Cir. 1990) (alteration in original)). We
found this “not surprising,” id., in light of the well-established
rule permitting opinion testimony on ultimate issues, see Han-
garter v. Provident Life & Accident Ins. Co., 373 F.3d 998,
1016 (9th Cir. 2004).

[2] The thrust of Briceno’s evidentiary challenge is that
Vi’s testimony that the hypothetical robberies would have
been gang-related should have been excluded as pertaining to
an ultimate issue for the jury. Our recent decision in Moses
forecloses such a challenge, as it holds that there is no clearly
established constitutional right to be free of an expert opinion
on an ultimate issue. See 543 F.3d at 1105-06. Accordingly,
the admission of the opinion testimony of Peter Vi cannot be
said to be contrary to, or an unreasonable application of,
Supreme Court precedent.

III. Of the Sufficiency of the Evidence to Support the Gang
Enhancement Penalties

Briceno also argues that the evidence at trial was insuffi-
cient to support the enhancements, as there was not sufficient
evidence to sustain the conclusion that the robberies were
committed with the specific intent to benefit a criminal street
gang. We agree.

To prevail on an insufficiency of evidence claim, a habeas
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 by 28 U.S.C. § 2254(d), which obliges
Briceno to demonstrate that the state court’s adjudication
entailed an unreasonable application of the quoted Jackson
standard. See Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir.
2005).

[3] To warrant a gang enhancement, California law requires
the prosecutor to prove two things. First, the prosecutor must
 BRICENO v. SCRIBNER 2093
demonstrate that the defendant committed a felony “for the
benefit of, at the direction of, or in association with [a] crimi-
nal street gang.” Cal. Penal Code § 186.22(b)(1). Second, the
prosecutor must show that the defendant committed the crime
“with the specific intent to promote, further, or assist in any
criminal conduct by gang members.” Id. We have previously
recognized the importance of keeping these two requirements
separate, and have emphasized that the second step is not sat-
isfied by evidence of mere membership in a criminal street
gang alone. See Garcia v. Carey, 395 F.3d 1099, 1102-03 &
n.5 (9th Cir. 2005).

The California Court of Appeal limited its analysis of the
sufficiency of the evidence supporting the criminal street gang
enhancements to the following:

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.

Briceno, 2003 WL 1710927, at *3. Under our case law, this
analysis represents an unreasonable application of the Jackson
standard, for several reasons.

[4] First, Vi’s testimony did not establish Briceno’s specific
intent in committing the robberies, nor could it. Vi’s testi-
mony dealt almost exclusively in hypotheticals; he did not
provide any direct or circumstantial evidence of Briceno and
2094 BRICENO v. SCRIBNER
Landin’s own intent. Even when asked whether he had “an
opinion as to whether or not [the robberies] . . . were commit-
ted . . . with intent to promote, further and assist criminal con-
duct by members of the Hard Times gang,” Vi did not provide
such an opinion. Instead, he responded in generalities, stating
that such crimes “glorif[ied]” the gang and increased the sta-
tus of the offenders.1 Although we need not decide whether
there was sufficient evidence with regard to the first prong of
the gang enhancement, Vi’s testimony might have helped to
establish the first element of the gang enhancement, i.e., that
the crime ultimately benefitted the gang in some way. But it
says nothing about Briceno’s specific intent in committing the
robberies.2

[5] Second, the California Court of Appeal’s analysis runs
afoul of this court’s decision in Garcia v. Carey. In Garcia,
the defendant, a known gang member, robbed the victim “in
an area known to be in the heart of the gang’s ‘turf.’ ” 395
F.3d at 1103. Although a police expert testified that the defen-
dant’s gang was “turf-oriented,” we held that there was insuf-
ficient evidence to warrant an enhanced sentence under
§ 186.22(b)(1) because there was no evidence, aside from the
gang expert’s generic testimony, “that would support an infer-
ence that Garcia robbed [the victim] with the specific intent
to facilitate other criminal conduct by the [gang].” Id. Aside
from evidence of Garcia’s gang membership, the record was
“singularly silent” as to “what criminal activity of the gang
1
An affirmative response by Vi, combined with his expressed judgment
that the crimes were committed for the benefit of the gang, would proba-
bly have amounted to an expert opinion that Briceno was guilty, and so
would have been improper. See Moses, 543 F.3d at 1106; Lockett, 919
F.2d at 590. We need not so decide, however, as Vi did not in fact testify
as to Briceno’s specific intent.
2
Moreover, Vi was precluded from testifying about the intent issue.
Under California law, a gang expert cannot testify as to a defendant’s spe-
cific intent in committing a crime. See In re Frank S., 46 Cal. Rptr. 3d
839, 842-44 (Ct. App. 2006); People v. Killebrew, 126 Cal. Rptr. 2d 876,
886 (Ct. App. 2002).
 BRICENO v. SCRIBNER 2095
was . . . intended to be furthered by the robbery.” Id. We con-
cluded that this lack of evidence triggered application of the
Jackson standard, as “[w]ithout this evidentiary link, it is
unreasonable to conclude that a rational jury could find that
Garcia committed [this robbery] with the specific intent to
facilitate other gang crimes. There was simply a total failure
of proof of the requisite specific intent.”3 Id. at 1104.

The State urges us to disregard Garcia, citing two Califor-
nia appellate court decisions holding that Garcia misinter-
preted California law. See People v. Hill, 47 Cal. Rptr. 3d
875, 877 (Ct. App. 2006); People v. Romero, 43 Cal. Rptr. 3d
862, 865 (Ct. App. 2006). Romero and Hill both held that “the
specific intent element is satisfied if [the defendant] had the
specific intent to ‘promote, further, or assist’ [a fellow gang
member] in [any criminal conduct].” Romero, 43 Cal. Rptr.
3d at 866; Hill, 47 Cal. Rptr. 3d at 877. The State argues that
we are bound by this construction of the statute, under which
the gang enhancements are warranted so long as Briceno
intended to assist Landin in the commission of the crime and
knew that Landin was a gang member.

[6] Although we are ordinarily bound by a state’s highest
court’s interpretation of its own statute, see Dimidowich v.
Bell & Howell, 803 F.2d 1473, 1482 (9th Cir. 1986), none of
the post-Garcia cases cited by the State were decided by the
3
The dissent draws a distinction between this appeal, which involves the
commission of a crime with another gang member, and Garcia, which
involved the commission of a crime by one gang member and another who
may or may not have been a gang member, to conclude that our reliance
on Garcia is misplaced. Diss. Op. at 2109-10. This distinction is irrele-
vant. Garcia concluded only that the specific intent required under
§ 186.22(b) must be to facilitate other criminal activities by gang mem-
bers. See Garcia, 395 F.3d at 1103-04. The court’s reading of § 186.22(b)
in Garcia does not depend upon whether the defendant acted alone or with
another gang member. A defendant acting alone is capable of as much
intent to facilitate gang activities as two defendants acting in concert. That
Briceno committed the crimes alone, with Landin, or with ten other gang
members is not dispositive in identifying the necessary specific intent.
2096 BRICENO v. SCRIBNER
California Supreme Court, which has yet to address this issue.
This panel would therefore normally be bound by the prior
panel’s decision in Garcia, which expressly rejected the same
interpretation of § 186.22(b) advanced by the State in this
case. The State argues, however, that intervening case law in
the lower state courts, i.e., Romero and Hill, has cast doubt on
Garcia. “In the absence of a pronouncement by the highest
court of a state, the federal courts must 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 ex rel. Owen v. United States, 713
F.2d 1461, 1464 (9th Cir. 1983) (internal quotation marks
omitted); see also In re Watts, 298 F.3d 1077, 1082-83 (9th
Cir. 2002); Dimidowich, 803 F.2d at 1482. Our task is there-
fore to determine whether, after Romero and Hill, there
remain convincing reasons to believe that the California
Supreme Court would hold the sentencing enhancements
available under § 186.22(b) inapplicable to Briceno’s case.

[7] To the extent that the California Supreme Court has
provided an authoritative interpretation of § 186.22(b), that
interpretation suggests that the Court would not adopt the
State’s understanding of Romero and Hill. In People v.
Gardeley, 927 P.2d 713 (Cal. 1997) (as modified), the Cali-
fornia Supreme Court noted that the statute “does not crimi-
nalize mere gang membership; rather, it imposes increased
criminal penalties only when the criminal conduct is felonious
and committed not only ‘for the benefit of, at the direction of,
or in association with’ a [gang], but also with the ‘specific
intent to promote, further, or assist in any criminal conduct by
gang members.’ ” Id. at 725. The court further explained that
these “detailed requirements” were designed to ensure that the
statute increased punishment only when a defendant “commit-
ted 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.” Id.
at 725 & n.10 (emphasis added). In contrast to the State’s
 BRICENO v. SCRIBNER 2097
interpretation of Romero and Hill, Gardeley suggests that
merely being a gang member, or committing a crime in asso-
ciation with another gang member, is not enough to trigger
the sentencing enhancements of § 186.22(b). Rather, the
defendant must commit the crime with the specific intent to
aid or abet the criminal conduct of the gang. This is precisely
the evidence lacking in Briceno’s case.

Moreover, as this court previously recognized in Garcia,
the California Supreme Court’s analysis in Gardeley high-
lights the type of evidence necessary to sustain gang enhance-
ments under § 186.22(b). In Gardeley, the California Supreme
Court found sufficient evidence of gang-related criminal con-
duct where two gang members severely beat and robbed their
victim in full view of neighboring apartment residents. A
gang expert testified that such an assault on the gang’s own
“turf,” where they had effectively monopolized the drug trade,
was committed to intimidate local residents and dissuade
them from reporting the gang’s activities. Id. at 716-18. The
court recognized the assault as a “ ‘classic’ example of gang-
related activity,” holding that such testimony allowed the jury
to reasonably conclude that the assault was committed “with
a specific intent to promote, further, or assist in . . . criminal
conduct by gang members.” Id. at 722.

[8] This theme also runs throughout the other California
cases cited by the State, including Romero and Hill. In each
case, a jury could reasonably conclude that the defendant
committed the crime with the specific intent to benefit the
gang, as the defendant either committed the crime to protect
gang “turf” or brandished gang signs or a gang moniker dur-
ing the attack. See, e.g., People v. Villalobos, 51 Cal. Rptr. 3d
678, 681 (Ct. App. 2007) (crime committed on gang turf);
Hill, 47 Cal. Rptr. 3d at 876 (defendant announced gang
membership); Romero, 43 Cal. Rptr. at 864-65 (retaliatory
shooting on a rival gang’s turf).4 Here, by contrast, such cir-
4
The one case relied upon by the State that did not involve a specific
indicia of gang-related criminal conduct was decided prior to our decision
2098 BRICENO v. SCRIBNER
cumstantial evidence of intent is wholly lacking: the individ-
ual robberies were not committed in Hard Times gang
territory or on the “turf” of a rival gang, neither Briceno nor
Landin made their gang membership known to the robbery
victims, and, indeed, there is no evidence whatsoever of any
connection between the gang and the robberies.5

in Garcia, and specifically distinguished a case like Briceno’s. In People
v. Morales, 5 Cal. Rptr. 3d 615 (Ct. App. 2003), three gang members com-
mitted a robbery during a drug deal gone bad. The Court of Appeal sus-
tained gang enhancements because “there was evidence that defendant
intended to commit robberies, that he intended to commit them in associa-
tion with Flores and Moreno, and that he knew that Flores and Moreno
were members of his gang.” Id. at 632. The court noted, however, that
“[a]dmittedly, it is conceivable that several gang members could commit
a crime together, yet be on a frolic and detour unrelated to the gang. Here,
however, there was no evidence of this. Thus, the jury could reasonably
infer the requisite association from the very fact that defendant committed
the charged crimes in association with fellow gang members.” Id.
Given our analysis of Gardeley, we doubt that Morales is an accurate
statement of California law, and the Garcia panel must be taken to have
so determined. But even if it were, Briceno correctly points out that the
only evidence presented to the jury as to his specific intent indicated that
he and Landin committed the robberies “on a frolic and detour unrelated
to the gang,” namely, to buy Christmas presents.
5
Given this lack of evidence, Briceno presents an even stronger case
than the defendant in Garcia. In that case, the defendant committed a rob-
bery on gang turf and announced himself to the victim as “Little Risky
from [El Monte Flores, his gang].” 395 F.3d at 1101. Although the State
argued on appeal that the turf-oriented nature of the crime and the use of
a gang moniker demonstrated that Garcia intended to instill fear of the
gang in residents of the neighborhood to facilitate gang operations, the
panel majority rejected “this theory of specific intent” because it “had
never been argued to the jury by the prosecution and the jury had not been
asked to make such an inference.” Id. at 1103. In dissent, Judge Wallace
argued that “[a] rational juror could infer from [the use of a gang moniker]
that Garcia intended to intimidate [the victim] and the store owner by let-
ting them know that they were dealing with an E.M.F. member on E.M.F.
turf, so that . . . a perceived challenger to the gang’s authority[ ] would
know not to intrude on E.M.F. turf in the future and so that the store owner
would submit to the gang’s dominance.” Id. at 1107 (Wallace, J., dissent-
 BRICENO v. SCRIBNER 2099
Finally, even if we were to defer to the post-Garcia deci-
sions of the California Courts of Appeal, not all of those deci-
sions have adopted the expansive reading of § 186.22(b)
advanced by the State. In In re Frank S., for example, the
State sought gang enhancements based solely on an expert
witness’s testimony that the defendant was a gang member
and that his criminal conduct would benefit the gang. 141 Cal.
Rptr. 3d at 841. The Court of Appeal held this evidence insuf-
ficient, explaining that while “a trier of fact may rely on
expert testimony about gang culture and habits to reach a
finding on a gang allegation,” such testimony is insufficient
to establish “that a specific individual possessed a specific
intent.”6 Id. at 842; see also Killebrew, 126 Cal. Rptr. 2d at
886-87. In Briceno’s case, of course, the testimony of a gang
expert was all that the State presented to establish specific
intent. Thus, even if we were to defer to the state courts’ post-
Garcia interpretation of § 186.22(b), it is not at all clear that
a gang enhancement could be sustained in this case.

[9] We conclude that on the facts of this case, the Califor-
nia Supreme Court would not hold that there was sufficient
evidence to establish a “specific intent to promote, further, or
assist in any criminal conduct by gang members,” as required
by statute. See CAL. PENAL CODE § 186.22(b)(1). According to
the dissent, however, the California Supreme Court “has
already considered and implicitly rejected Briceno’s argument
regarding insufficiency of the evidence[.]” Diss. Op. at 2107.

ing). In Judge Wallace’s view, such evidence was sufficient to establish
specific intent. But neither the majority nor the dissenting opinions in Gar-
cia support sustaining a gang enhancement in the absence of any evidence
that the defendant intended to protect gang turf or facilitate gang opera-
tions.
6
The court expressly noted that it was publishing its decision to rein in
an overly expansive reading of § 186.22(b): “We publish this case to
emphasize that crimes may not be found to be gang-related based solely
upon a perpetrator’s criminal history and gang affiliation.” 46 Cal. Rptr.
3d at 841.
2100 BRICENO v. SCRIBNER
We disagree. In the state proceedings, both the State and Bri-
ceno filed petitions for review with the California Supreme
Court. The California Supreme Court granted only the State’s
petition for review. That petition related to a separate legal
question concerning California’s Three Strikes law. See Peo-
ple v. Briceno, 77 P.3d 3 (Cal. 2003); Petition for Review,
No. S117641, available at 2003 WL 23015606, at *2 (filed
July 28, 2003). None of the justices voted to grant Briceno’s
petition for review as to the question of whether “the commis-
sion of a crime with a fellow gang member, without more, [is]
sufficient to prove the crimes were gang related . . . .” See
Briceno, 77 P.3d at 3; Petition for Review, No. S117641,
available at 2003 WL 23015605, at *2. The briefing in the
case further demonstrates that the gang enhancements were
not before the California Supreme Court, as the parties
addressed only the Three Strikes issue. Concluding its opinion
on that issue, the court wrote: “In all other respects, the judg-
ment [of Briceno’s conviction] is affirmed.” Briceno, 99 P.3d
at 1015. Contrary to the reasoning of the dissent, it is unlikely
that the California Supreme Court, in a single boilerplate sen-
tence at the end of its opinion on an issue that it decided to
review at the behest of one party, intended to express an
authoritative view on an issue presented by another party that
it had in fact expressly decided not to review. See In re KF
Dairies, Inc. & Affiliates, 224 F.3d 922, 925 n.3 (9th Cir.
2000); cf. Trope v. Katz, 902 P.2d 259, 268 n.1 (Cal. 1995)
(“It is well established that our refusal to grant a hearing in
a particular case is to be given no weight insofar as it might
be deemed that we have acquiesced in the law as enunciated
in a published opinion of a Court of Appeal when such opin-
ion is in conflict with the law stated by this [C]ourt.” (internal
quotation marks omitted; emphasis in original)). We think
that the portion of the gang enhancement statute requiring
specific intent has a plain meaning, that our interpretation is
consistent with Garcia and Gardeley, and that the California
Supreme Court is likely to conclude that the mere fact that
Briceno committed the robberies with another gang member
 BRICENO v. SCRIBNER 2101
is insufficient to support a gang enhancement under
§ 186.22(b).

We emphasize that Garcia does not displace the Jackson
standard as the proper lens with which we review state-court
decisions. This court’s decision in Garcia remains persuasive
because it analyzed the only California Supreme Court deci-
sion addressing § 186.22(b), i.e., Gardeley, 927 P.2d 713, to
guide this court’s interpretation of the elements of
§ 186.22(b). See Garcia, 395 F.3d at 1103-04. Moreover,
Garcia interpreted the substantive elements of § 186.22(b)
based on legal considerations that remain valid in this appeal,
namely, the California Supreme Court’s decision in Gardeley,
and the specific-intent language in § 186.22(b), which has not
been amended since Gardeley. See Garcia, 395 F.3d at 1103-
04. Indeed, the California Supreme Court has not, to date,
invalidated this court’s interpretation of § 186.22(b) or other-
wise disagreed with Garcia in any decision.

[10] We therefore hold that the appellate court’s conclusion
in this case represents an unreasonable application of the
Jackson standard, and we grant Briceno’s petition for a writ
of habeas corpus as to the sufficiency of the evidence.

CONCLUSION

In view of the foregoing, we affirm in part, reverse in part,
and remand for the District Court to grant the habeas petition
as to the imposition of the criminal street gang sentence
enhancements.

AFFIRMED in part; REVERSED in part; and
REMANDED.

Costs are awarded to Petitioner Briceno.
2102 BRICENO v. SCRIBNER
WARDLAW, Circuit Judge, concurring in part and dissenting
in part:

I concur in the opinion, except as to Part III of the analysis.
As to Part III, I must respectfully dissent, principally due to
the standards we must apply on habeas review.

In the words of the California Court of Appeal, Alberto
Briceno and Evaristo Landin “launched a grinchly crime wave
on Christmas Day 2000,” and were ultimately convicted of
four armed robberies, each committed within a three-hour
time span that day. Although there was evidence at trial that
the crimes were committed for personal gain (stealing money
to buy Christmas gifts), the jury found that a sentencing
enhancement was warranted based on the gang-related nature
of the crimes. Briceno’s sentence was enhanced under Cali-
fornia’s gang enhancement statute, which provides an
enhancement for “any person who is convicted of a felony
committed [(1)] for the benefit of, at the direction of, or in
association with any criminal street gang, [(2)] 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)
(emphasis added). The two prongs are considered separately.
See, e.g., People v. Morales, 5 Cal. Rptr. 3d 615, 632 (Ct.
App. 2003); see also Maj. Op. at 2092-93.1 The majority
holds that “there was not sufficient evidence to sustain the
conclusion that the robberies were committed with the spe-
cific intent to benefit a criminal street gang.” Maj. Op. at 2092.2
1
I agree with the majority that we need not decide whether Peter Vi’s
expert testimony was sufficient evidence from which a rational trier of fact
could find that the first element of the statute was proven beyond a reason-
able doubt. See Maj. Op. at 2094 (“[Vi’s] testimony might have helped to
establish the first element of the gang enhancement, i.e., that the crime
ultimately benefitted the gang in some way.”). Thus, the focus of our dis-
agreement is whether sufficient evidence supports the second, specific
intent, element of the statute.
2
The majority opinion intermittently conflates the analysis of the two
prongs, as does the Court of Appeal’s decision. The second prong requires
 BRICENO v. SCRIBNER 2103
I disagree that the state court unreasonably interpreted its own
law in finding that the gang enhancement was supported by
sufficient evidence, and would affirm the district court.

Our task is to decide whether the state court’s adjudication
entailed an unreasonable application of Jackson v. Virginia,
which permits reversal only when “upon the record evidence
adduced at the trial[,] no rational trier of fact could have
found proof of guilt beyond a reasonable doubt.” 443 U.S.
307, 324 (1979); see 28 U.S.C. § 2254(d)(1); Juan H. v. Allen,
408 F.3d 1262, 1274 (9th Cir. 2005). In determining whether
sufficient evidence supports the state law statutory enhance-
ment, we are bound by “a state court’s interpretation of state
law.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005). If, as here,
there is no controlling “pronouncement by the highest court
of a state, the federal courts must 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 ex rel. Owen v. United States, 713
F.2d 1461, 1464 (9th Cir. 1983) (internal quotation marks
omitted).

The three directly relevant decisions by the California
Court of Appeal hold that to prove “specific intent to . . .
assist in any criminal conduct by gang members,” it is suffi-
cient to demonstrate that the “defendant intended to commit
[the crimes], that he intended to commit them in association
with [his accomplices], and that he knew that [his accom-
plices] were members of his gang.” Morales, 5 Cal. Rptr. 3d
at 632; see also People v. Villalobos, 51 Cal. Rptr. 3d 678,
687 (Ct. App. 2007) (“Commission of a crime in concert with
known gang members is substantial evidence which supports

proof not that defendant had specific intent to “benefit” the gang, but that
he had specific intent to “promote, further, or assist in any criminal con-
duct by gang members.” Compare Cal. Penal Code § 186.22(b)(1), with
Maj. Op. at 2092-93, 2097-98, and People v. Briceno, Nos. G029525,
G029607, 2003 WL 1710927, at *3 (Cal. Ct. App. Mar. 28, 2003).
2104 BRICENO v. SCRIBNER
the inference that the defendant acted with the specific intent
to promote, further or assist gang members in the commission
of the crime.”); People v. Romero, 43 Cal. Rptr. 3d 862, 866
(Ct. App. 2006) (“There was ample evidence that appellant
intended to commit a crime, that he intended to help [his
accomplice] commit a crime, and that he knew [his accom-
plice] was a member of his gang.”);3 cf. People v. Hill, 47 Cal.
Rptr. 3d 875, 877 (Ct. App. 2006) (finding specific intent to
enable gang-related activity when one gang member commits
a crime).4 Under this unequivocal state law, it follows that a
3
The majority attempts to assign significance to the factual circum-
stances of Villalobos and Romero, suggesting that to support a finding of
specific intent, it is necessary to find that the “defendant intended to pro-
tect gang turf or facilitate gang operations.” See Maj. Op. at 2097-98 &
n.5 (citing Villalobos, 51 Cal. Rptr. 3d at 681 (crime committed on gang
turf); Romero, 43 Cal. Rptr. 3d at 864-65 (retaliatory shooting on a rival
gang’s turf)). The presence of gang-related indicia may be relevant to the
determination of whether the crime was committed “for the benefit of, at
the direction of, or in association with” the gang. There is absolutely no
indication in either opinion, however, that the Court of Appeal relied on
the geographic location of the crime or the presence of gang-related indi-
cia to support its finding of specific intent. See Villalobos, 51 Cal. Rptr.
3d at 686-87; Romero, 43 Cal. Rptr. 3d at 865-66. Here, only the specific
intent element of the statute is at issue. Therefore, the lack of gang-related
indicia is not dispositive. Further, the majority concedes that Morales “did
not involve a specific indicia of gang-related criminal conduct,” but argues
that Briceno’s case falls into the “frolic and detour” exception. See Maj.
Op. at 2097-98 n.4 (citing Morales, 5 Cal. Rptr. 3d at 632 (“[I]t is con-
ceivable that several gang members could commit a crime together, yet be
on a frolic and detour unrelated to the gang.”)). This exception, however,
also applies only to the first prong of the statute. Morales suggested only
that it is possible that two gang members committing a crime together are
not necessarily acting “in association” with a gang. The “frolic and
detour” exception, as articulated in Morales, cannot underlie a finding that
a defendant lacked specific intent to “assist in any criminal conduct by
gang members.” Cal. Penal Code § 186.22(b).
4
The Court of Appeal in Hill found that specific intent was established
because the “defendant’s own criminal threat qualified as the gang-related
criminal activity”; therefore, by committing the crime, the defendant acted
with specific intent to further that activity. 47 Cal. Rptr. 3d at 877.
Because Hill concerns the commission of a crime by one gang member
 BRICENO v. SCRIBNER 2105
rational jury could conclude beyond a reasonable doubt that
Briceno had the specific intent to assist in criminal conduct by
gang members because he intended to commit the four rob-
beries in the short time span using the same modus operandi,
intended to commit them in association with Landin, and
knew that Landin was also an active member of the Hard
Times criminal street gang. In other words, under the reason-
ing in Morales, Villalobos, and Romero, Landin’s crimes
qualify as “any criminal conduct by gang members,” and Bri-
ceno’s purposeful assistance to Landin in this criminal con-
duct qualifies as “specific intent to . . . assist” that criminal
conduct. Briceno does not dispute that he intended to commit
at least three of the crimes, that he intended to commit the
crimes in association with Landin, and that he knew Landin
was a gang member. Although the Court of Appeal also relied
upon Peter Vi’s expert testimony to conclude that there was
sufficient evidence to support the gang enhancement, that reli-
ance was unnecessary to its decision.5

The reasoning in Morales, Villalobos, and Romero controls
our decision because there is no “convincing evidence that the
highest court of the state would decide differently.” Owen,
713 F.2d at 1464 (internal quotation marks omitted). The
majority, however, declines to follow these decisions. Relying
on an erroneous interpretation of People v. Gardeley, 927
P.2d 713 (Cal. 1997), the one California Supreme Court pro-

acting alone, it is least relevant here, where two gang members acted in
concert. Therefore, we do not need to decide whether the Supreme Court
would agree that the commission of a crime by one gang member acting
alone, with the attendant mention of the gang association to the victim, is
sufficient to warrant application of the gang enhancement statute.
5
The majority correctly points out that Vi did not, and could not, pro-
vide an opinion regarding Briceno’s specific intent. Therefore, In re Frank
S., 46 Cal. Rptr. 3d 839, 842-44 (Ct. App. 2006), and People v. Killebrew,
126 Cal. Rptr. 2d 876, 886 (Ct. App. 2002), are inapposite because those
cases address the impropriety of expert testimony to establish specific
intent.
2106 BRICENO v. SCRIBNER
nouncement on gang enhancements, the majority concludes
that the California Supreme Court would decide the specific
intent question differently from the Court of Appeal. In
Gardeley, the Supreme Court found sufficient evidence to
support the sentencing enhancement when multiple gang
members acting together violently assaulted an intruder on
their turf in order “to frighten the residents of an area where
the gang members sell drugs, thereby securing the gang’s
drug-dealing stronghold.” Id. at 722. In the expert’s opinion,
this was a “ ‘classic’ example of gang-related activity.” Id.
The majority points out that Gardeley holds that the statute
enhances the sentence only when the defendant commits “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.” Id.
at 725 n.10. The majority’s point is correct but inapposite.
Gardeley stands for the proposition that the statute “does not
criminalize mere gang membership.” Id. at 725. It does not
support the contention that the majority purports to make—
that the Supreme Court would hold that the commission of a
crime with another gang member is insufficient to establish
specific intent to “assist in any criminal conduct by gang
members.”

Further, though intimidation of intruders to maintain turf
dominance may be a “classic” example of gang-related activ-
ity, there is no indication that gang-related activities occurring
outside the turf cannot serve as a basis for enhancement.
“Classic” gang-related activity is not “necessary to sustain
gang enhancements,” contrary to the majority’s contention.
See Maj. Op. at 2097. Thus, Gardeley does not present “con-
vincing evidence” that would allow us to reject the reasoning
of the California appellate courts. Owen, 713 F.2d at 1464.

In concluding that “on the facts of this case, the California
Supreme Court would not hold that there was sufficient evi-
dence to establish a ‘specific intent to promote, further, or
 BRICENO v. SCRIBNER 2107
assist in any criminal conduct by gang members,’ ” Maj. Op.
at 2099, the majority ignores that the California Supreme
Court has already considered and implicitly rejected Bri-
ceno’s argument regarding insufficiency of the evidence to
support the gang enhancement. After the Court of Appeal
found that the record evidence was sufficient to support the
gang enhancement, Briceno, 2003 WL 1710927, at *3, Bri-
ceno petitioned for review of that decision to the California
Supreme Court, Defendant’s Petition for Review, Briceno, 77
P.3d 3 (No. S117641), 2003 WL 23015605, at *2. The
Supreme Court rejected Briceno’s petition, but granted the
State’s cross-petition on a separate and unrelated issue.
State’s Petition for Review, Briceno, 77 P.3d 3 (No.
S117641), 2003 WL 23015606. It reversed the Court of
Appeal only with respect to its finding that Briceno did not
“suffer[ ] a prior conviction for a serious felony.” People v.
Briceno, 99 P.3d 1007, 1008 (Cal. 2004). “In all other
respects, [the Supreme Court] affirm[ed] the judgment.” Id. at
1009.
The Supreme Court’s summary affirmance has limited, but
—for the purposes of this analysis—sufficient, precedential
value. The summary affirmance of the judgment indicates, at
most, agreement with the “precise issues framed and neces-
sarily decided in the case below.” Hoffman v. State Bar of
Cal., 6 Cal. Rptr. 3d 592, 604 n.10 (Ct. App. 2003); see also
Anderson v. Celebrezze, 460 U.S. 780, 784 n.5 (1983) (“We
have often recognized that the precedential effect of a sum-
mary affirmance extends no further than the precise issues
presented and necessarily decided by those actions. A sum-
mary disposition affirms only the judgment of the court
below, and no more may be read into our action than was
essential to sustain that judgment.” (internal quotation marks
omitted)). Thus, though “summary affirmances” are “a rather
slender reed on which to rest [a] decision,” Anderson, 460
U.S. at 784 n.5 (internal quotation marks omitted), even this
limited extent of agreement demonstrates that the Supreme
2108 BRICENO v. SCRIBNER
Court would find that the elements of section 186.22(b) were
met in Briceno’s case.
Further, the denial of Briceno’s petition by the Supreme
Court itself suggests that the Supreme Court would not dis-
agree with the Court of Appeal’s conclusion. An “order
[denying review of a] decision of the District Court of Appeal
may be taken as an approval of the conclusion there reached,
but not necessarily of all of the reasoning contained in that
opinion.” Di Genova v. State Bd. of Ed., 367 P.2d 865, 871
(Cal. 1962) (emphasis added) (internal quotation marks omit-
ted). Again, this limited approval is sufficient for our
purposes—establishing that the Supreme Court would agree
with the Court of Appeal’s decision that record evidence in
Briceno’s case sufficiently supports the two elements required
for the enhancement.

The majority correctly points out that the Supreme Court’s
“refusal to grant a hearing in a particular case is to be given
no weight insofar as it might be deemed that [it has] acqui-
esced in the law as enunciated in a published opinion of a
Court of Appeal when such opinion is in conflict with the law
as stated by [the Supreme C]ourt.” Trope v. Katz, 902 P.2d
259, 268 n.1 (Cal. 1995) (emphasis and internal quotation
marks omitted). I agree. No party should attempt to rely on
the Court of Appeal’s interpretation of the law in its unpub-
lished opinion to the extent it is contradicted by a published
holding of the Supreme Court. The Supreme Court does not
have to agree with the Court of Appeal’s interpretation of the
statute, however. All we must determine—and the denial of
review establishes this and no more—is that the Supreme
Court agreed with the Court of Appeal’s conclusion that suffi-
cient record evidence supports the enhancement as to Briceno.6
6
While the majority purports to strictly follow some Ninth Circuit pre-
cedent, like Garcia, it completely ignores other precedent, like Roman v.
Estelle, in which we held that “when the California Supreme Court denies
a petition for hearing without citation or comment, it will be assumed that
 BRICENO v. SCRIBNER 2109
The Supreme Court’s agreement with the Court of Appeal in
this case, therefore, presents “convincing evidence” that it
would not disagree with the decisions of the California appel-
late courts.

The majority also purports to follow a Ninth Circuit deci-
sion that finds insufficient evidence for a gang enhancement
when “there was no testimony or other evidence to support a
rational inference that the robbery . . . was committed with the
intent to further other criminal activity” of the gang. Garcia
v. Carey, 395 F.3d 1099, 1104 (9th Cir. 2005). This reliance
is unjustified for three reasons.

First, in the habeas context, it is inappropriate to hold, as
the majority does, that “the California Court of Appeal’s anal-
ysis runs afoul of this court’s decision in Garcia v. Carey.”
Maj. Op. at 2094. The California state court was not bound by
Garcia in its interpretation of section 186.22(b); nor may we
analyze the state court’s opinion for compliance therewith.
We review the state court’s decision only to determine
whether it reasonably applied “clearly established Federal
law,” defined as “the governing legal principle or principles
set forth by the Supreme Court at the time the state court ren-
ders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72
(2003). Clearly, Garcia does not fit this definition. “While
circuit law may be persuasive authority for purposes of deter-
mining whether a state court decision is an unreasonable
application of Supreme Court law, only the Supreme Court’s

the state supreme court has been given a fair opportunity to review the
merits of the petitioner’s claim.” 917 F.2d 1505, 1506 (9th Cir. 1990)
(internal quotation marks omitted). There is no doubt that in Briceno’s
petition for review, the California Supreme Court was presented with the
exact question we are answering today and, thus, had the opportunity to
review the claim on the merits. See Defendant’s Petition for Review, Bri-
ceno, 77 P.3d 3 (No. S117641), 2003 WL 23015605, at *2 (“Is the com-
mission of a crime with a fellow gang member, without more, sufficient
to prove the crimes were gang related . . . ?”).
2110 BRICENO v. SCRIBNER
holdings are binding on the state courts and only those hold-
ings need be reasonably applied.” Clark v. Murphy, 331 F.3d
1062, 1069 (9th Cir. 2003) (citation and internal quotation
marks omitted). The applicable federal law is the Jackson
standard, and there is no indication that the state court unrea-
sonably held that a rational trier of fact could have found the
gang enhancement true beyond a reasonable doubt. Our rea-
soning in Garcia, then, is only persuasive authority that
should be rejected when, as here, it is contrary to the state’s
own interpretation of its statute. See Dimidowich v. Bell &
Howell, 803 F.2d 1473, 1482 (9th Cir. 1986).

Second, we could follow Garcia only if faced with “con-
vincing evidence” that allows us to set aside the contrary
appellate court decisions. Owen, 713 F.2d at 1464. As
explained above, we are not. In Owen, we were presented
with a previous Ninth Circuit decision, Commercial Union
Insurance Co. v. Ford Motor Co., 640 F.2d 210 (9th Cir.
1981), which interpreted California Civil Procedure Code sec-
tion 877. Subsequent California Court of Appeal’s decisions
articulated a different interpretation. We stated that “[o]ur
interpretation in Commercial Union was only binding in the
absence of any subsequent indication from the California
courts that our interpretation was incorrect.” Owen, 713 F.2d
at 1464. Here, California courts could not have indicated
more clearly that our interpretation of section 186.22(b) was
incorrect. Garcia has been explicitly disapproved in two sub-
sequent California Court of Appeal decisions. See Romero, 43
Cal. Rptr. 3d at 865 (declining to follow Garcia because “[b]y
its plain language, the statute requires a showing of specific
intent to promote, further, or assist in ‘any criminal conduct
by gang members,’ rather than other criminal conduct”); Hill,
47 Cal. Rptr. 3d at 877 (same). As explained above, there is
no “convincing evidence” that might lead us to disregard
these pronouncements; therefore, we cannot deem Garcia
controlling.

Third, Garcia is not directly applicable because Garcia did
not address the situation here: two gang members committing
 BRICENO v. SCRIBNER 2111
a crime together. In Garcia, the defendant committed a liquor
store robbery with accomplices; it is unclear whether the
accomplices were fellow gang members. The State’s theory of
specific intent in that case was the fairly vague “facilitat[ion
of] other gang-related criminal operations within El Monte,”
Garcia, 395 F.3d at 1103, a theory that could rest only on the
statutory prohibition of “promot[ing] and further[ing] . . . any
criminal conduct by gang members,” Cal. Penal Code
§ 186.22(b). Here, by contrast, the State’s theory of specific
intent is predicated upon two gang members committing a
crime together—a theory that rests on the statutory prohibi-
tion against “assist[ing] in any criminal conduct by gang
members,” id., and a theory that Garcia did not directly
address. Therefore, there is no basis for holding, as the major-
ity does, that Garcia “expressly rejected the same interpreta-
tion of § 186.22(b) advanced by the State in this case.” Maj.
Op. at 2096.

The majority disregards the clear holding of the California
appellate courts that a criminal act intentionally committed
with another known gang member demonstrates specific
intent to assist in criminal conduct by gang members—a hold-
ing that sustains the state court’s finding of sufficient evi-
dence to support the gang enhancement in Briceno’s case. The
majority’s disregard of the Court of Appeal’s decisions is
unwarranted because there is no convincing evidence suggest-
ing that the Supreme Court would decide the question differ-
ently, and because the California Supreme Court has already
placed its stamp of approval on the Court of Appeal’s conclu-
sion in this case that, no matter the interpretation of the stat-
ute, Briceno’s crimes warrant the sentencing enhancement.
Because the Court of Appeal was not unreasonable in finding
that a rational trier of fact applying state law could find the
sentencing enhancement was proven beyond a reasonable
doubt, I must dissent.