Briceno v. Scribner

• Decision Date: 23 February 2009
• Docket Number: No. 07-55665.,07-55665.
• Citation: 555 F.3d 1069
• Parties: Alberto Francisco BRICENO, Petitioner-Appellant, v. A.K. SCRIBNER, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

555 F.3d 1069

Alberto Francisco BRICENO, Petitioner-Appellant, v. A.K. SCRIBNER, Warden, Respondent-Appellee.

No. 07-55665.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 8, 2008.

Filed February 23, 2009.

[555 F.3d 1072]

Vivian A. Fu, San Francisco, CA, 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, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California, Margaret M. Morrow, District Judge, Presiding. D.C. No. CV-05-00455-MMM.

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.

MINER, Circuit Judge:

I. Introduction

Alberto Francisco Briceno appeals from a judgment of the United States District Court for the Central District of California (Morrow, J.) denying his petition for a writ of habeas corpus. Briceno was convicted, following a jury trial, of four counts of second degree robbery and four counts of street terrorism 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 District Court. Ultimately, we granted a certificate of appealability 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, 109 Cal.App.4th 1330, 135 Cal.Rptr.2d 912, 913 (2003), rev'd in part on other grounds, 34 Cal.4th 451, 20 Cal.Rptr.3d 418, 99 P.3d 1007 (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 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 encounter, 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.

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 penalties 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 Section 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 gang membership and described the structure, operations, culture, 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 person driving approached a second person, passenger 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 driving, 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 Anaheim.

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 follows:

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 itself, because, one, they commit this crime, the possibility 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...