Emery v. Clark

• Citation: 643 F.3d 1210
• Decision Date: 27 May 2011
• Docket Number: No. 08–55249.,08–55249.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Parties: Ruben Anthony EMERY, Petitioner–Appellant,v.Ken CLARK, Respondent–Appellee.

643 F.3d 1210

11 Cal. Daily Op. Serv. 6414

2011 Daily Journal D.A.R. 7741

Ruben Anthony EMERY, Petitioner–Appellant,

v.Ken CLARK, Respondent–Appellee.

No. 08–55249.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 10, 2009.Filed May 27, 2011.

Vivian A. Fu, San Francisco, CA, argued the cause and filed the briefs for the petitioner-appellant.James William Bilderback II, Office of the Attorney General, Los Angeles, CA, 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.Appeal from the United States District Court for the Central District of California, S. James Otero, District Judge, Presiding. D.C. No. CV–07–02237–SJO(CT).Before: DIARMUID F. O'SCANNLAIN ^* and BARRY G. SILVERMAN, Circuit Judges, and SUZANNE B. CONLON, District Judge.^**

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 necessary.

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 circumstance 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 California 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 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. Virginia, 443 U.S. 307, 319, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (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 corpus 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 district 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 Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir.2004)).

A petitioner can obtain relief on federal habeas claims that have been “adjudicated on the merits in State court proceedings” only if the state court's adjudication resulted in a decision 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, ––– U.S. ––––, 131 S.Ct. 770, 784–85, 178 L.Ed.2d 624 (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, 131 S.Ct. 770.

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, 99 S.Ct. 2781. 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).

Insufficient evidence claims are reviewed by looking at the elements of the offense under state law. Jackson, 443 U.S. at 324 n. 16, 99 S.Ct. 2781; see also Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) (in determining whether sufficient evidence supports a state law statutory enhancement, federal courts are bound by “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 reasonable doubt: (1) that Emery committed a felony “for the benefit of, at the direction of, or in association with any criminal 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 sufficiency 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, 51 Cal.4th 47, 119 Cal.Rptr.3d 415, 244 P.3d 1062 (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 evidence to prove that the crimes were committed “for the benefit of, at the direction of, or in association with a criminal street gang.”

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, 119 Cal.Rptr.3d 415, 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, testified 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 member. As Morales explained, Emery's use of lethal force “over a fight about peanuts,” would raise his status within the Westside Longos (“WSL”), the Westside Stoners (“WSS”), and the Eastside Longos (“ESL”), and would inspire fear in the community.

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 evidence 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 sufficient to support the jury's finding that Emery committed the attempted robbery and murder of Henry Chow “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” Cal.Penal Code § 186.22(b)(1).

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. Scribner, 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 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...