NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 09 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
TONY JAKE, No. 09-56417
Petitioner - Appellant, D.C. No. 2:07-cv-06208-ODW-
JTL
v.
TOM FELKER, Warden, Warden, CDC MEMORANDUM *
High Desert State Prison,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Submitted August 7, 2012 **
Pasadena, California
Before: REINHARDT, SILVERMAN, and WARDLAW, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Petitioner Tony Jake appeals the district court’s denial of his petition for a
writ of habeas corpus. Jake argued that there was insufficient evidence to support
the jury verdict that he committed a felony “committed for the benefit of, at the
direction of, or in association with any criminal street gang, with the specific intent
to promote, further, or assist in any criminal conduct by gang members.” Cal.
Penal Code § 186.22(b)(1). He argued that the imposition of the enhancement in
the absence of sufficient evidence was unconstitutional under Jackson v. Virginia,
443 U.S. 307 (1979). Although he raised additional issues in his Application for a
Certificate of Appealability, the district court granted a certificate only as to
petitioner’s claim that there was insufficient evidence to support the gang
enhancement because “reasonable jurists could debate whether the evidence was
sufficient to establish that petitioner had the specific intent to assist in criminal
conduct by gang members.”
In its interpretation of the second prong of § 186.22(b)(1), the California
courts have held that “if substantial evidence establishes that the defendant
intended to and did commit the charged felony with known members of a gang, the
jury may fairly infer that the defendant had the specific intent to promote, further,
or assist criminal conduct by those gang members.” People v. Albillar, 51 Cal. 4th
47, 68 (2010). Here, there was substantial evidence that Petitioner intended to and
did assist Underwood and Filer in murdering Bates. There was also sufficient
evidence that Underwood and Filer were Gangster Disciples members, and that the
Gangster Disciples were a criminal street gang within the meaning of Cal. Penal
Code § 186.22(f). Therefore, we find that the district court did not err in
concluding that the California Court of Appeal’s determination that there was
sufficient evidence supporting the enhancement as defined by the California courts
was not an objectively unreasonable application of Jackson.
AFFIRMED.