Johnson v. Montgomery

• Decision Date: 15 August 2018
• Docket Number: No. 15-56007,15-56007
• Citation: 899 F.3d 1052
• Parties: Ronneld JOHNSON, Petitioner-Appellant, v. W. L. MONTGOMERY, Acting Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

899 F.3d 1052

Ronneld JOHNSON, Petitioner-Appellant,

v.W. L. MONTGOMERY, Acting Warden, Respondent-Appellee.

No. 15-56007

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 13, 2018—Pasadena, California

Filed August 15, 2018

Michael T. Drake (argued), Research and Writing Attorney; Hilary L. Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Petitioner-Appellant.

Charles Shang-Rei Lee (argued) and Kathy S. Pomerantz, Deputy Attorneys General; Kenneth C. Byrne, Supervising Deputy Attorney General; Lance E. Winters, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, Los Angeles, California; for Respondent-Appellee.

Before: Marsha S. Berzon and Jay S. Bybee, Circuit Judges, and John A. Woodcock, Jr.^* , District Judge.

Partial Concurrence and Partial Dissent by Judge Berzon

WOODCOCK, District Judge:

Ronneld Johnson, a California state prisoner, appeals the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his sentencing enhancement for a prior nonjury juvenile conviction and his sentencing enhancement for a gang-related crime. Johnson argues that the evidence supporting the gang enhancement was constitutionally insufficient under Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and he argues that the enhancement for his nonjury juvenile conviction violates Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Because the evidence was sufficient to establish that the robbery was "for the benefit of" a gang, and because the juvenile conviction claim was procedurally barred and sentencing enhancements based on nonjury juvenile convictions do not violate any clearly established federal law as determined by the United States Supreme Court, we affirm.

IBackground

A. The Robbery

At roughly 9:00 AM on November 9, 2011, Ronneld Johnson and Jonathan King twice drove by a house in the area of 111th and Anzac or Grape Streets in Southeast Los Angeles. Two men were doing landscaping work at the house. Johnson and King then pulled into an alley next to the house, exited the car, and approached the other men. Johnson pointed a semiautomatic gun at the faces of the victims, first at one, and then he hopped a small fence to point the gun at the other. Johnson and King took their money, a cell phone, and a gold chain. During the robbery, either Johnson or King said, "Hurry up cuz," which was either directed at the other defendant or at one of the victims. Johnson and King then got back in the car and left.

In December 2011, the State charged both Johnson and King with two counts of robbery each, including gang and gun enhancement allegations. In March 2012, a jury convicted Johnson and King and found the gang and gun enhancements to be true.

B. The Gang Evidence

The prosecution called an expert witness, Officer Jose Carias, to testify about the nature of criminal street gangs. For example, Officer Carias explained that gang members sometimes commit crimes so that other members will "respect" them, and he testified that gangs often encourage or require their members to "put in work"—meaning commit crimes—in order to ensure the gang is respected and feared by others in the community, elevating the status of the gang and discouraging witnesses from reporting information to the police. He said that "cuz" is a term typically used by Crip gangs, and is not a term typically used by members of other gangs, like Bloods or Hispanic gangs. He also testified that it is not uncommon for members of different gangs to commit crimes together after forming ties through family, school, or juvenile detention.

King was an admitted member of a gang, the Project Watts Crips. He had numerous tattoos indicating membership in that gang, including some on his face and hands. Johnson had self-identified as a member of the 58th Street Neighborhood Crips in 2006, but the tattoos on his body, including his hands, suggest he was a member of a different gang, the East Coast Crips. Robbery is one of the primary activities of the Project Watts Crips. The robbery occurred within the area the Project Watts Crips claims as its territory.

The territory of the East Coast Crips is roughly four or five miles away.

After a lengthy hypothetical scenario corresponding to the facts of Johnson and King’s case, the gang expert opined that the individuals "committed a crime together in concert and thus in association with another gang member," and he concluded that the crime primarily benefited the Project Watts Crips. The expert relied on the following factors: that both perpetrators were members of gangs, they committed the crime within Project Watts Crips territory, they used the word "cuz," they drove by the victims multiple times indicating a level of sophistication, they seemed comfortable because they took the time to jump a fence and rob a second person, and the crime occurred in broad daylight, without any attempt to hide their identities.

C. The Post-Trial Proceedings

On April 4, 2012, the trial court sentenced Johnson to an aggregate term of imprisonment of twenty-eight years, eight months. The sentence was based on the robbery, the gang and gun enhancements, and a prior strike from a juvenile conviction, all to run consecutively. The sentencing court also found Johnson in violation of probation in another case, and sentenced him to an additional consecutive 16-month term of imprisonment.

On October 4, 2012, Johnson filed a direct appeal. The California Court of Appeal denied his appeal on May 15, 2013. Johnson sought review from the California Supreme Court, but it denied review without substantive comment on July 24, 2013.

On January 6, 2014, Johnson filed a state habeas petition. The California Court of Appeal denied the petition on January 23, 2014. On February 18, 2014, Johnson filed a habeas petition in the California Supreme Court. It denied Johnson’s petition on May 14, 2014.

On June 20, 2014, Johnson filed a petition for a writ of habeas corpus in the United States District Court for the Central District of California. The district court denied Johnson’s habeas petition on June 8, 2015.

IIThe Sufficiency of the Evidence for the Gang Enhancement

A. The Standard of Review

"Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum" or "increases the mandatory minimum [sentence] is an ‘element’ that must be submitted to the jury" and proved beyond a reasonable doubt. Apprendi , 530 U.S. at 490, 120 S.Ct. 2348 ; Alleyne v. United States , 570 U.S. 99, 103, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Under Jackson , a due process claim challenging the sufficiency 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." Emery v. Clark , 643 F.3d 1210, 1213 (9th Cir. 2011). "When assessing a petition for a writ of habeas corpus, we thus ‘look to [state] law only to establish the elements of [the crime] and then turn to the federal question of whether the [state] court was objectively unreasonable in concluding that sufficient evidence supported [its decision].’ " Boyer v. Belleque , 659 F.3d 957, 965 (9th Cir. 2011) (alterations in original) (quoting Juan H. v. Allen , 408 F.3d 1262, 1278 n.14 (9th Cir. 2005) ). In addition to Jackson ’s already deferential standard, a second level of deference applies under AEDPA. For the petitioner to prevail, we must conclude that the state court’s determination that a rational jury could have found each required element proven beyond a reasonable doubt was not just wrong but was objectively unreasonable. Boyer , 659 F.3d at 964–65.

B. The California Gang Enhancement

California’s gang enhancement applies to "any person who is convicted of 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). The first prong requires that the crime be related to a gang, and the second prong that the defendant specifically intend to assist a gang member’s crime. See People v. Albillar , 51 Cal.4th 47, 119 Cal.Rptr.3d 415, 244 P.3d 1062, 1070 (2010). Johnson does not challenge the sufficiency of the evidence regarding the specific intent prong. Rather, he challenges the California appellate court’s conclusions that there was sufficient evidence that the robbery he committed with King was "in association with" and "for the benefit of" a gang. "Because the first prong is worded in the disjunctive, [the] gang enhancement may be imposed" based on either gang association or benefit. People v. Weddington , 246 Cal.App.4th 468, 200 Cal.Rptr.3d 799, 813 (2016).

1. It was objectively unreasonable to conclude that the evidence was sufficient for a reasonable jury to find the robbery was committed "in association with" a gang.

"Committing a crime in concert with known gang members can be substantial evidence that the crime was committed in ‘association’ with a gang." People v. Garcia , 244 Cal.App.4th 1349, 199 Cal.Rptr.3d 399, 413 (2016). A crime is committed "in association with" the gang if the "defendants relied on their common gang membership and the apparatus of the gang" when they committed the crime. Id. at 414 (quoting Albillar , 119 Cal.Rptr.3d 415, 244 P.3d at 1071 ). In Albillar , the California Supreme Court focused on the act of "committing a crime with fellow gang members. ..." 119 Cal.Rptr.3d 415, 244 P.3d at 1072. Albillar teaches that it is not sufficient to simply commit any act in concert with a gang member, rather it is acting in concert with individuals of "common gang...