Emery v. Clark

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RUBEN ANTHONY EMERY,  No. 08-55249

Petitioner-Appellant, D.C. No.

v.  CV-07-02237-

KEN CLARK, SJO(CT)

Respondent-Appellee.

 ORDER

Appeal from the United States District Court

for the Central District of California

S. James Otero, District Judge, Presiding

Argued and Submitted

December 10, 2009—Pasadena, California

Filed May 13, 2010

Before: Cynthia Holcomb Hall and Barry G. Silverman,

Circuit Judges, and Suzanne B. Conlon, District Judge.*

COUNSEL

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

appellant.

James William Bilderback, II, Supervising Deputy Attorney

General, Los Angeles, California, for the respondent-appellee.

*The Honorable Suzanne B. Conlon, United States District Judge for

the Northern District of Illinois, sitting by designation.

6887

6888 EMERY v. CLARK

ORDER CERTIFYING DETERMINATIVE

QUESTIONS OF STATE LAW

TO THE CALIFORNIA SUPREME COURT

HALL, Circuit Judge:

We respectfully ask the Supreme Court of California to

exercise its discretion to decide the certified questions set

forth below pursuant to rule 8.548 of the California Rules of

Court.

I. Administrative Information

We provide the following information in accordance with

rule 8.548(b)(1) of the California Rules of Court:

The title of the case is Ruben Anthony Emery, Petitioner-

Appellant v. Ken Clark, Respondent-Appellee, and it is

assigned Ninth Circuit Case No. 08-55249.

The name and address of counsel for Petitioner Emery is

Vivian A. Fu, P.O. Box 460374, San Francisco, California

94146.

The name and address of counsel for Respondent Clark is

James William Bilderback, II, Supervising Deputy Attorney

General, Office of the California Attorney General, 300 S.

Spring St., Los Angeles, California 90013.

If the California Supreme Court grants this request for cer-

tification, state prisoner Ruben Anthony Emery should be

deemed the petitioner. After being convicted of special cir-

cumstances murder and attempted robbery with criminal

street gang enhancements, and exhausting his direct appeal

and state habeas remedies, Emery filed a petition for writ of

habeas corpus in the United States District Court for the Cen-

tral District of California, Case No. CV-07-02237-SJO(CT).

He thereafter obtained a certificate of appealability pursuant

EMERY v. CLARK 6889

to 28 U.S.C. § 2253(c) and Ninth Circuit Rule 22-1(d), and

timely filed a notice of appeal in this court. Emery is, thus, the

petitioner and appellant before our court.

II. Certified Questions of State Law

We certify to the California Supreme Court the following

questions of state law that are now before us, and as to which

there is no controlling authority:

1. Does California’s criminal street gang enhancement

statute, in particular the element of “specific intent to pro-

mote, further, or assist in any criminal conduct by gang mem-

bers” in California Penal Code section 186.22(b)(1),1 require

proof that the defendant specifically intended to promote, fur-

ther, or assist in other criminal gang activity, apart from the

offense of conviction? See Garcia v. Carey, 395 F.3d 1099,

1100-01, 1103-04 (9th Cir. 2005); Briceno v. Scribner, 555

F.3d 1069, 1078-83 (9th Cir. 2009); cf. People v. Romero, 140

Cal.App.4th 15, 19 (2006); People v. Hill, 142 Cal.App.4th

770, 774 (2006); People v. Vazquez, 178 Cal.App.4th 347,

353-55 (2009).

2. Is gang expert testimony tied to the facts of the case—

regarding the centrality of “respect” in gang culture, and how

the defendant’s use of lethal force to avenge a minor slight to

a member of an affiliated gang would enhance the “respect”

he gets from other gang members, raise his status within the

gang hierarchy, and teach the community not to interfere with

even the most minor criminal activities of his fellow gang

members—sufficient to satisfy the requirement that the mur-

der was committed with the “specific intent to promote, fur-

ther, or assist in any criminal conduct by gang members”

within the meaning of section 186.22(b)(1)? See Vazquez, 178

Cal.App.4th at 350-51, 353-55; Hill, 142 Cal.App.4th at 772,

1

All further undifferentiated section references are to the California

Penal Code.

6890 EMERY v. CLARK

774; cf. People v. Gardeley, 14 Cal.4th 605, 612-13, 619

(1997); but see Briceno, 555 F.3d at 1078-79.

3. Does evidence that the defendant committed the

attempted robbery and murder in concert with the brother of

a young gang member, whom the victim allegedly “disre-

spected,” satisfy the requirement that the crimes were com-

mitted with the specific intent to “assist in any criminal

conduct by gang members” within the meaning of section

186.22(b)(1)? People v. Villalobos, 145 Cal.App.4th 310, 322

(2006); Romero, 140 Cal.App.4th at 19-20; People v. Mora-

les, 112 Cal.App.4th 1176, 1198 (2003); see also Briceno,

555 at 1084-86 (Wardlaw, J., dissenting); cf. Briceno, 555

F.3d at 1081, n.4.

The phrasing of the questions set forth above should not

restrict the California Supreme Court’s consideration of the

issues involved in this matter, and that Court may reformulate

the questions. We will accept the decision of the California

Supreme Court on any of these questions, each of which

could determine the outcome of this matter. See Aceves v. All-

state Ins. Co., 68 F.3d 1160, 1164 (9th Cir. 1995) (holding

that the Ninth Circuit is bound by the California Supreme

Court’s interpretation of California law).2

2

We realize that the California Supreme Court currently has pending on

review a case, People v. Albillar, Cal. Sup. Ct. No. S163905, in which the

Court limited review to the following issues: “Did substantial evidence

support defendants’ convictions under Penal Code section 186.22, subdivi-

sion (a), and the true findings with respect to the enhancements under

Penal Code section 186.22, subdivision (b)?” The Court also recently

requested supplemental letter briefs on the question “whether the phrase

felonious criminal conduct, appearing in Penal Code section 186.22, sub-

division (a), should be interpreted to mean felonious criminal gang-related

conduct.”

We recognize that the California Supreme Court has plenary authority

to decide any issues raised or fairly included in a petition for review or

answer and, with an opportunity for briefing and argument by the parties,

any issues presented by the case that are not raised or fairly included in

EMERY v. CLARK 6891

III. Factual and Procedural Background

Emery was convicted after a jury trial of the attempted rob-

bery and first degree murder of Henry Chow. The jury found

true the special circumstances that: (1) Emery was an active

participant in a criminal street gang and the murder was car-

ried out to further the activities of the gang, § 190.2(a)(22));

and (2) Chow was killed during a robbery, § 190.2(a)(17)(A).

The jury also found that Emery committed both crimes for the

benefit of, and in association with, a criminal street gang, with

the specific intent to promote, further or assist in criminal

conduct by gang members. § 186.22(b)(1). Finally, the jury

the petition. Cal. R. Ct. 8.516(b). We have reviewed the petitions for

review and other briefs filed in Albillar, and further realize it is possible

the Court will soon reach and decide one or more of the issues we are pro-

posing for certification, regarding the proper interpretation and application

of the “specific intent” element of the section 186.22(b)(1) gang enhance-

ment.

As we read the parties’ briefs, however, we do not understand the appel-

lants in Albillar to be raising our first certified question, regarding the

requirement for proof that the defendant specifically intended to promote,

further, or assist in other criminal gang activity, apart from the offense of

conviction, under the holding of this court in Garcia, 395 F.3d at 1101-04,

as recently reaffirmed in Briceno, 555 F.3d at 1078-83. Moreover, while

the appellants and the respondent in Albillar discuss Briceno, and arguably

raise our second and third certified questions regarding what constitutes

relevant gang expert testimony, and whether action in concert with a

known gang member or associate can support a jury finding of “specific

intent to . . . assist in any criminal conduct by gang members,” the appel-

lants apparently disclaim any reliance on Garcia and Briceno and suggest

that the California Supreme Court need not resolve the sharp conflict

between the Ninth Circuit and California Courts of Appeal on these issues.

See Appellant’s Reply Brief on the Merits (Albert A. Albillar), 2009 WL

1387615, *11-12 (filed April 20, 2009) (the “other crime” thesis from

Garcia is not advanced by appellant); Appellant’s Reply Brief on the Mer-

its (Alex A. Albillar), 2009 WL 1541985, *1-2 (filed May 7, 2009)

(“appellant has neither relied upon [Garcia or Briceno] in arguing the

insufficiency of the evidence, nor is it necessary to do so”). Accordingly,

we would urge the California Supreme Court to answer the certified ques-

tions presented here, notwithstanding the grant of review in Albillar.

6892 EMERY v. CLARK

found that a principal discharged a firearm, resulting in

Chow’s death. §§ 12022.53(d) and (e)(1). The facts upon

which the jury rendered its verdict and findings are as fol-

lows.

A. The Attempted Robbery and Murder of Henry

Chow

On November 4, 2001, Leonardo Alvarez (“Leonardo”), a

member of the Eastside Longos criminal street gang, lived on

West Third Street in Long Beach with his brothers Danny

Alvarez (“Danny”), five other siblings, and their mother, San-

dra Rosales. The house on West Third Street was a hangout

for members of numerous gangs, including the Westside Lon-

gos. Gang members would come to the house to drink and use

drugs. Gang members would also commit acts of fraud at the

house, and were initiated into the gang at that location. In

November 2001, Danny was 18 years old and Leonardo was

16 or 17 years old.

Petitioner Emery, also known as “Little Man,” was at the

time an active member of the Westside Longos street gang.

He arrived at the house on West Third at around 12:00 to 2:00

p.m. that day, carrying a black gun and wearing a bulletproof

vest.

Rosales did not know Emery, and had never seen him

before. She noticed he was wearing a bulletproof vest, and

asked him about it. Emery had his hand in his pocket. Rosales

reached out and felt something hard, like metal. Rosales told

Danny she did not want Emery in her house, and told Emery

to leave or she would call the police. Danny said Emery

would only be there for a couple of minutes.

Emery left, but returned to the house sometime around 6:00

to 7:00 p.m. that same day. Upon Emery’s return, Danny told

Leonardo to go to the store to get some peanuts for Emery.

Leonardo went to the Moonray Market at 605 Broadway in

EMERY v. CLARK 6893

Long Beach, which was owned by Henry Chow. Hue Bui, a

friend of Chow, was there. When Leonardo and two or three

other young Hispanic boys came to the market, Chow asked

Bui to stop them from coming in. Leonardo tried to push Bui

away, and they got into a scuffle. Bui grabbed Leonardo by

the collar and pushed him out of the store.

Leonardo returned home about ten minutes after he left,

crying and complaining that the owner of the store, an Asian

male, had pushed him to the ground. Emery became enraged

and said that he wanted to “go teach this motherfucker a les-

son,” and that he was going to rob the store owner.

On the way out of the house, Danny encountered his little

sister, Jessica. Danny did not want to pursue Emery’s pro-

posed course of action, so he asked Jessica to come along,

hoping her presence would deter Emery from going ahead

with the robbery.

Emery, Danny, and Jessica walked to the store together. On

the way, Emery reiterated that he intended to “teach this

motherfucker a lesson” and rob him. Danny asked Emery not

to do it, because Chow was his friend. Emery pulled out a gun

and threatened Danny, asking, “Are you going to ride when

I smoke the motherfucker?” Danny was afraid Emery would

kill him, so he went into the store with Emery.

Emery walked into the store, and said to Chow, “Hey bitch,

give me the money.” Emery then shot Chow three times in

rapid succession, mortally wounding him. After the shooting,

Emery ran out of the store. A Black woman tripped over

Danny. Danny tried to help her up, but she refused his help.

A Samoan male told Danny to leave the store, so he did, tak-

ing his sister with him.

Bui grabbed a golf club to protect himself, then called out,

“Hey, Henry, are you all right?” Chow said, “No, I think I got

shot in the leg.” Bui looked at Chow’s leg, but did not see a

6894 EMERY v. CLARK

hole or any blood. The paramedics came and took Chow

away, and he later died as a result of a gunshot wound to his

chest.3

Danny went home after the shooting. Emery was not there,

but his friend Bugsy, another Westside Longos gang member,

was there. Bugsy had the gun Emery used in the shooting.

Bugsy asked Danny where he should hide the gun. Danny

gave Bugsy his blue jacket, and showed him where to hide the

gun. They wrapped the gun in the jacket, and put it in an ice

cooler in the back yard. Danny took a Valium, then left the

house.

B. The Investigation of the Shooting

Long Beach Police Detective Hector Gutierrez was

assigned to investigate the shooting at the Moonray Market.

He went to the house on West Third Street looking for Emery,

who was known to him as “Little Man,” and found him out

front. Emery was wearing a bulletproof vest, but did not have

a weapon. Detective Gutierrez arrested Emery and took him

to the police station.

Sometime in the late evening hours of November 4 to the

early morning hours of November 5, 2001, Detective Gutier-

rez returned to the West Third Street house to look for wit-

nesses. He spoke with Leonardo, Danny, and Rosales.

3

According to a Los Angeles County Deputy Medical Examiner who

testified at trial, Chow had five separate gunshot wounds, which were

likely caused by three separate gunshots. The wounds were consistent with

bullets fired from a .45-caliber automatic. Chow had been shot in the

chest, back, and legs. One of the bullets caused three wounds, one to each

of Chow’s legs and another to his penis. All of the gunshot wounds were

through-and-through, meaning that the bullet entered and exited the body.

The bullet that entered Chow’s chest injured his lungs and his liver. This

was the fatal wound.

EMERY v. CLARK 6895

Leonardo told Detective Gutierrez that he had gone to the

Moonray Market and attempted to “take some peanuts,” and

an Asian male working at the store grabbed or pushed him to

the ground. Leonardo went home to tell his “big brother,”

Danny, what happened. Emery, who was called “Little Man,”

was present, and had a semiautomatic gun with him. Leo-

nardo said Emery was a member of the Westside Longos

gang. Danny and Emery got upset and agitated, and left to go

to the Moonray Market.

Danny told Detective Gutierrez that Leonardo had been

pushed by an Asian male. He said Little Man became angry

and said something like, “Let’s go smoke that fool.” Danny,

his sister Jessica, and Little Man walked to the market. They

stopped in an alley, and Little Man pulled out a chrome

revolver. Little Man told Danny, “We’re going to take this

ride together, or I’m going to kill you.” Danny told the detec-

tive that he and Jessica stayed in the alley while Little Man

went into the market. Little Man yelled something like, “Give

me your money or I’m going to kill you, motherfucker.”

Danny heard two or three shots, then saw Little Man run out

of the market and down the alley. Danny went home, then he

and his brother went to visit a girlfriend.

Following this conversation, Detective Gutierrez placed

Danny under arrest and took him to the police station. Later,

Danny spoke with Detective Gutierrez at the jail. Danny said

Leonardo had a problem with an Asian employee at the

Moonray Market. Danny said that Leonardo told Emery and

him about the incident, and they got “pumped up” and angry

about it. Danny said that he and Emery went to the Moonray

Market, where Emery shot Chow.

Danny also spoke with Long Beach Police Detective Mark

McGuire. He told Detective McGuire that Emery shot Chow.

However, Danny also told many lies in his conversation with

Detective McGuire.4 Danny said he does not consider himself

4

At first, Danny lied when he said he did not know where the gun was,

but then he told the police where to find it. Danny lied when he said that

6896 EMERY v. CLARK

a gang member, but admitted that he did hang out with gang

members. Danny claimed to be a “tagger” with the nickname

“Fear” or “Matar,” which means “to kill” in Spanish. At least

one defense witness, testified that he has known Danny since

childhood, and he knows Danny to be a gang member.

Danny also told McGuire that he would be risking his life

by testifying against Emery. At trial, Danny testified that

Emery threatened him prior to the preliminary hearing by

writing a note saying that someone in Danny’s family would

get hurt if he testified. About six months before trial, Emery’s

mother also threatened Leonardo, and warned him not to tes-

tify.

After his conversation with Danny, Detective McGuire

went to the house on West Third Street and recovered the gun

that was used to kill Chow. It was a gray .45 caliber semiauto-

matic handgun.

C. The Joint Indictment of Emery and Danny Alvarez

By information filed on February 27, 2003, Emery and

Danny were charged with murder, § 187(a) (Count 1), and

second degree robbery, § 211 (Count 2). With respect to

Count 1, the information alleged the special circumstance that

the murder was committed while the defendants were engaged

in robbery. § 190.2(a)(17)(A). With respect to both counts, it

he was in the alley at the time of the shooting. Danny lied about taking

Valium and smoking primos (marijuana cigarettes laced with cocaine

base) with Emery. Danny lied when he said that Emery had a .38 revolver.

Danny lied about his sister’s age, saying she was eight when she was

really six. Danny lied when he said that Emery was only going to see what

was going on at the market, when he was really going to rob the store

owner. Danny lied and said the gun was not at his house. Danny talked

to Detective McGuire before he had a deal with the prosecution. Danny

thought a videotape from the Moonray Market would show Emery shoot-

ing Chow.

EMERY v. CLARK 6897

was further alleged that Emery personally and intentionally

discharged a firearm, causing great bodily injury,

§ 12022.53(d); that he personally and intentionally discharged

a firearm § 12022.53(c); and that he personally used a fire-

arm, § 12022.53(b). It was also alleged as to both counts that

a principal personally and intentionally discharged a firearm,

causing great bodily injury, §§ 12022.53(d) & (e)(1); that a

principal personally and intentionally discharged a firearm,

§§ 12022.53(c) & (e)(1); and that a principal personally used

a firearm, §§ 12022.53(b) & (e)(1). It was further alleged as

to both counts that the offenses were committed for the bene-

fit of, at the direction of, and in association with a criminal

street gang, with specific intent to promote, further and assist

in criminal conduct by gang members. § 186.22(b)(1).

Danny’s case was severed from Emery’s before trial, and

he eventually pled guilty to voluntary manslaughter in return

for his agreement to testify against Emery. Pursuant to that

agreement, Danny testified at trial that the murder of Henry

Chow was committed in “furtherance of a criminal street

gang.” On October 7, 2004, the information was amended to

include the special circumstance allegation pursuant to section

190.2(a)(22)—i.e., that the murder was an intentional killing

by an active member of a criminal street gang, carried out to

further the activities of the gang.

D. The Testimony of Gang Expert Abel Morales

Detective Abel Morales, the prosecution’s gang expert, tes-

tified at trial about gangs in the Long Beach area. He stated

that the Westside Longos is a predominantly Hispanic gang

with territory on the west side of Long Beach with approxi-

mately 300 members. The gang’s primary criminal activities

are drive-by shootings, burglaries, armed robberies, and mur-

ders. Their symbol is WSL and they do not claim any colors,

but their preferred colors are black and white. Emery had tat-

toos representing the Westside Longos.

6898 EMERY v. CLARK

Morales further testified that Westside Stoner is a predomi-

nantly white gang in the same area with approximately 50 mem-

bers.5 Their symbol is WSS and they also prefer black and

white colors. Their primary criminal activities are shootings,

murders, burglaries, robberies, auto thefts, and selling narcot-

ics. Emery also had tattoos representing the Westside Stoners.

According to Detective Morales, Eastside Longos is the

largest Hispanic gang in Long Beach, with approximately 400

members. Their symbol is ESL and they also prefer black and

white colors. Their primary criminal activities are murder,

drive-by shootings, burglaries, robberies, extortion, witness

intimidation, drug sales, and gun possession.

When questioned about the relationship between the West-

side Longos and Eastside Longos, Morales explained that

there had been a peace treaty between the two gangs since the

early 1990s when the Mexican Mafia told them that Hispanics

have to stick together and should not be fighting amongst

themselves. Ever since then, he said, “they somewhat try to

follow that rule.” There is also some fluidity in membership

between the Westside Longos and Westside Stoners.

Morales further testified about the importance of “respect”

in a gang, saying, “The only thing you have in a gang is

respect. Once respect is getting taken away from [you], you

don’t have a second chance. People look up to you because

of the things you have done in the past. That’s how you get

respect.” If someone disrespects a gang member, the gang

member would retaliate because doing nothing would mean

that “he have no respect.” If the person disrespected was a

5

Although Rosales’s house and the Moonray Market both appear to be

located on the “west side” of Long Beach, the Attorney General conceded

at oral argument that there was no evidence or argument to the jury that

the crimes were committed to defend the “turf” of either the WSL or WSS

gang. Nor was there any showing that Emery wore gang colors, threw

gang signs, exposed his gang tattoos, or used his gang moniker, “Little

Man,” while committing the attempted robbery and murder.

EMERY v. CLARK 6899

member of an affiliated gang or a friend, the gang member

would get even more respect by “sticking up for someone

else.”

Morales further testified that the race of the people

involved plays a “major part” and if the person who disre-

spected the gang member was from a different race, “you just

can’t let that go.” According to Morales, Westside Longos,

Eastside Longos, and Westside Stoners did not get along with

the Asian gangs.

Morales testified, without objection, that in his opinion the

murder of Henry Chow was committed in furtherance of a

criminal street gang. When asked to explain, he said:

My opinion [is] based on the fact that Mr. Emery, as

you can see from the pictures, he’s hard-core gang

member. By him shooting the [victim] for just a sim-

ple deal that had occurred with one of Emery’s

friends, that shows that he had to go and do some-

thing worse than just beating him, you know, for the

fact that shooting — hurt him real bad because he

disrespected not only his gang by messing with one

of his friends but also himself — by the person going

to Emery and saying, “hey, this was done to me,” he

was showing that you had to go do something; by

him not doing anything, he totally get disrespected.

When asked how he knew the killing was not just “a family

thing,” in which Emery was avenging an act of disrespect

toward his friend’s brother, but instead “a gang thing” in

which he was retaliating against Chow for disrespecting

another gang member, Morales explained:

[F]rom my understanding from what I know is that

the person [who] got disrespected was a gang mem-

ber from Eastside Longo gang. Therefore, he went

and told his brother, who his brother is not a gang

6900 EMERY v. CLARK

member, but who Mr. Emery is a gang member. By

them doing that, they had to go show and prove

something, that you can’t just mess with that particu-

lar gang or any of his friends from that gang.

Finally, as to the use of lethal force “over a fight about pea-

nuts,” Morales explained that Emery’s actions would inspire

fear within the WSL, the WSS, the ESL, and in the commu-

nity, such that he could henceforth act with complete impu-

nity. Indeed, it would “shoot [him] up the ladder at the top

because if [he] could just shoot somebody for something

dumb, then he can go and do anything to anybody.”

E. The Jury Verdict & Sentencing

A jury convicted Emery of the attempted robbery and first

degree murder of Henry Chow, with the special circumstances

that: (1) Emery was an active participant in a criminal street

gang and the murder was carried out to further the activities

of his gang, § 190.2(a)(22)); and (2) Chow was killed during

a robbery, § 190.2(a)(17). The jury also specifically found

that Emery committed both crimes “for the benefit of, at the

direction of, and in association with, a criminal street gang

with the intent to promote, further, or assist in criminal con-

duct by gang members pursuant to [section] 186.22(b)(1).”

Finally, the jury found that a principal discharged a firearm,

resulting in Chow’s death. §§ 12022.53(d) & (e)(1). The jury

left blank the portions of the verdict form asking whether

Emery personally fired the weapon. §§ 12022.53(b)-(d).

The state trial court sentenced appellant to life in prison

without possibility of parole for Count 1, special circum-

stances murder. The trial court also imposed a consecutive

term of 25 years to life for the gun discharge enhancement,

and an additional consecutive 10 years as a gang enhancement

for the murder. Finally, the court imposed a concurrent term

of two years for Count 2, attempted robbery. The special cir-

cumstance finding pursuant to section 190.2(a)(22), and the

EMERY v. CLARK 6901

gang enhancements imposed pursuant to section 186.22(b)(1)

and sections 12022.53(d) and (e)(1) are at issue in this appeal.

F. Emery’s State Court Appeal

On direct appeal, the California Court of Appeal for the

Second Appellate District, Division Eight, ordered the state

trial court to strike the 10-year gang enhancement imposed as

to Count 1 pursuant to People v. Lopez, 34 Cal.4th 1002, 1004

(2005), and to correct two minor sentencing errors, but the

judgment was otherwise affirmed. People v. Emery, No.

B180005, 2006 WL 1431193 (Cal. Ct. App. May 25, 2006).

In its unpublished decision, the California Court of Appeal

rejected Emery’s argument regarding the sufficiency of the

evidence to support the gang enhancement, holding as fol-

lows:

Here, evidence allowed the jury to find appellant

murdered Chow specifically intending to promote

his gang’s criminal conduct. A street gang prospers

by cowing local residents into not challenging the

gang’s domination of the neighborhood. Killing

Chow, who had disrespectfully manhandled Leo-

nardo Alvarez, a member of a related gang, taught

neighborhood residents to fear the gang, and disci-

plined local residents to defer to gang members.

Killing for even a personal slight warned residents

not to trifle with the gang. In addition to the evi-

dence permitting the jury to affirmatively find appel-

lant committed his crimes to benefit his gang,

appellant’s contrary claim that he murdered Chow

based on a purely personal grudge suffers from its

implausibility.

Appellant had known Danny Alvarez, Leonardo’s

brother, for only one month. Leonardo did not know

appellant, having met him only once before. Despite

their very casual acquaintance, appellant claimed his

6902 EMERY v. CLARK

outrage at the personal slight to a younger brother he

did not know (Leonardo) of a companion he had

known for only one month (Danny) was sufficient to

make him want to kill Chow independently of any

gang tie, affiliation, or purpose. The jury was free to

reject that argument.

Id. at *2. The California Supreme Court summarily denied

Emery’s petition for review on September 13, 2006, see Peo-

ple v. Emery, Cal. Sup. Ct. No. S144683, and denied his final

state petition for writ of habeas corpus on June 24, 2009, see

Emery (Ruben) on H.C., Cal. Sup. Ct. No. S172933.

G. Habeas Corpus Proceedings in the District Court

Emery filed his federal habeas petition on April 4, 2007,

raising five claims. On June 21, 2007, District Court Judge

James Otero adopted a magistrate judge’s report and recom-

mendation, and denied the petition in its entirety. In rejecting

Emery’s claim of insufficiency of the evidence to support the

gang enhancements, the district court held as follows:

After a review of the record in this case, including,

but not limited to, the expert testimony of Officer

Morales, this court concurs and independently finds

that viewing the evidence in the light most favorable

to the prosecution, a rational trier of fact could have

found the elements of the gang special circumstance

finding and the gang enhancement finding beyond a

reasonable doubt.

H. Emery’s Appeal to the Ninth Circuit Court of

Appeals

On July 29, 2008, this court granted a certificate of

appealability of the issue as to the sufficiency of the evidence

to support the gang enhancements applied in this case.6 This

6

Although the certificate of appealability referred only to the sufficiency

of the evidence to support the gang enhancements as to the “robbery” and

EMERY v. CLARK 6903

court also granted Emery’s motion for appointment of counsel

on November 3, 2008. The case was fully briefed, and was

argued and submitted on December 10, 2009. The parties

were advised during oral argument that the panel was consid-

ering certifying the questions of state law presented in this

appeal to the California Supreme Court pursuant to rule 8.548

of the California Rules of Court.

IV. Reasons for Certification

The sole issue raised in this appeal is whether the Califor-

nia state courts reasonably concluded that the evidence pre-

sented at trial was sufficient to support the jury’s findings that

Emery committed the attempted robbery and the murder of

Henry Chow “with the specific intent to promote, further, or

assist in any criminal conduct by gang members” within the

meaning of section 186.22(b)(1), and “to further the activities

the use of a firearm by a principal in the commission of the robbery, the

parties agree that the attempted robbery and murder were committed

simultaneously, and the evidence supporting the convictions on Counts 1

and 2 was virtually identical. Thus, both Emery and the Attorney General

have briefed the issue of the sufficiency of the evidence to support the

gang enhancements as to both the attempted robbery and the murder pur-

suant to §§ 186.22(b), 12022.53(d) and (e)(1). Similarly, although Emery

does not offer separate briefing or argument about the sufficiency of the

evidence to support the “gang enhancement” embedded in the murder spe-

cial circumstance for a murder carried out by an active member of a crimi-

nal street gang to “further the activities of the criminal street gang,”

§ 190.2(a)(22), the Attorney General has acquiesced in the inclusion of

that issue within the scope of Emery’s appeal. Thus, we deem the parties’

agreement on these points to be a joint motion to expand the certificate of

appealability, and hereby grant it. We have also assumed that a failure of

proof as to the “specific intent” element of section 186.22(b)(1) would

apply to the section 190.2(a)(22) special circumstance, and would require

that the jury’s findings as to both of these provisions be vacated. As there

is no separate authority interpreting the language “to further the activities

of a criminal street gang,” we intend the discussion of the sufficiency of

the evidence of section 186.22(b)(1) specific intent to pertain as well to

the § 190.2(a)(22) special circumstance.

6904 EMERY v. CLARK

of the criminal street gang” within the meaning of section

190.2(a)(22).7

For purposes of this appeal, Emery does not dispute that he

was a principal in the attempted robbery and murder of Henry

Chow, or that he was an active participant in a criminal street

gang at the time, or that a principal discharged a firearm in the

commission of those crimes. Nor does he separately dispute

that the crimes were committed “for the benefit of, at the

direction of, or in association with any criminal street gang.”

§ 186.22(b)(1).

Rather, relying exclusively on two recent Ninth Circuit

decisions, Garcia v. Carey, 395 F.3d 1099 (9th Cir. 2005),

and Briceno v. Scribner, 555 F.3d 1069 (9th Cir. 2009),

Emery contends that the prosecution was required to prove he

committed the attempted robbery and murder of Chow with

the specific intent to promote, further, or assist in other spe-

cific criminal gang activity, apart from the offenses of convic-

tion, and that no rational trier of fact could have found that

element of the section 186.22(b)(1) gang enhancement estab-

lished beyond a reasonable doubt based on the evidence pre-

sented at trial. See Garcia, 395 F.3d at 1100-01, 1103-04; Bri-

ceno, 555 F.3d at 1078-80. Relying on Briceno, 555 F.3d at

1081 n.4, Emery further contends that the jury’s specific

intent finding cannot be sustained under California case law

suggesting that by committing the crimes in concert with

Danny—who was either a gang member himself, a gang asso-

ciate, or the protective older brother of a member of a gang

7

To prevail on an insufficiency of evidence claim under federal law, a

habeas corpus 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 of

review by 28 U.S.C. § 2254(d), which obliges the petitioner, Emery, to

demonstrate that the state court’s adjudication entailed an unreasonable

application of the Jackson standard. See Juan H. v. Allen, 408 F.3d 1262,

1274 (9th Cir. 2005).

EMERY v. CLARK 6905

affiliated with Emery’s gang—he acted with the specific

intent to “assist in any criminal conduct by gang members”

within the meaning of section 186.22(b)(1). See People v.

Vazquez, 178 Cal.App.4th 347, 353-55 (2009); People v. Vil-

lalobos, 145 Cal.App.4th 310, 322 (2006); People v. Romero,

140 Cal.App.4th 15, 19-20 (2006); People v. Morales, 112

Cal.App.4th 1176, 1198 (2003).

Since Garcia was decided in 2005, there has developed a

sharp split of authority between the California Courts of

Appeal and the Ninth Circuit regarding the proper interpreta-

tion of the “specific intent” clause in section 186.22(b)(1)—a

conflict that has been recognized by courts on both sides of

the precedential divide. See, e.g., Briceno, 555 F.3d 1078-83;

Vazquez, 178 Cal.App.4th at 353-55. California Courts of

Appeal have repeatedly complained in both published and

unpublished decisions that this court in Garcia, and later in

Briceno, has misinterpreted section 186.22(b)(1). The follow-

ing passage from People v. Romero, 140 Cal.App.4th 15

(2006) is representative:

Relying on the majority opinion in [Garcia ], appel-

lant [Romero] asserts that the statute requires a

showing of intent to promote the gang’s criminal

activity beyond the charged crime. In Garcia, the

Ninth Circuit found insufficient evidence of specific

intent to promote, further, or assist in other criminal

conduct by the defendant’s gang. We disagree with

Garcia’s interpretation of the California statute, and

decline to follow it. . . . By its plain language, the

statute requires a showing of specific intent to pro-

mote, further, or assist in “any criminal conduct by

gang members,” rather than other criminal conduct.

(§ 186.22, subd. (b)(1), italics added.)

Romero, 140 Cal.App.4th at 19 (italics in the original; case

citations omitted); accord People v. Hill, 142 Cal.App.4th

770, 774 (2006) (stating that Garcia “misinterprets California

6906 EMERY v. CLARK

law”). Most recently, in Vazquez, 178 Cal.App.4th 347, the

Court of Appeal held that:

“Like the Romero court, we reject the Ninth Cir-

cuit’s attempt to write additional requirements into

the statute. There is no statutory requirement that

this “criminal conduct by gang members” be distinct

from the charged offense, or that the evidence estab-

lish specific crimes the defendant intended to assist

his fellow gang members in committing.”

Id. at 354.

The views expressed by the Romero, Hill, and Vazquez

courts are consistent with those of the California Court of

Appeal that decided Emery’s direct appeal.8 In that unpub-

8

In addition to Romero, Hill, and Vazquez, a Westlaw search discloses

more than forty unpublished cases from the California Courts of Appeal

that “disagree with,” “decline to follow,” or “recognize the disagreement”

with the Ninth Circuit on this issue. It should also be noted that some

California-based federal district courts, in evaluating habeas claims of

insufficiency of the evidence to support section 186.22(b) gang enhance-

ments, have been struggling with Garcia and Briceno, especially with

Garcia’s requirement of evidence that the defendant intended to further,

promote, or assist in other specific criminal activity, “apart from” that of

the charged offenses. See, e.g., Lor v. Small, 2010 WL 935654 (E.D.Cal.

Mar. 10, 2010); Washington v. Small, 2010 WL 785233 (C.D.Cal. Feb. 26,

2010); Scott v. Marshall, 2010 WL 546360 (C.D.Cal. Feb. 10, 2010);

Arroyo v. Carter, 2010 WL 234819 (C.D.Cal. Jan. 12, 2010); Coutee v.

Walker, 2010 WL 128338 (C.D.Cal. Jan. 7, 2010); German v. Horel, 2009

WL 4885195 (C.D.Cal. Dec. 16, 2009); Mungia v. Hedgpeth, 2009 WL

2514188 (C.D. Cal. Aug. 13, 2009); Tarver v. Horel, 2009 WL 2448016

(C.D. Cal. Aug. 6, 2009); Mendoza v. Att’y Gen. of State of Cal., 2009 WL

926814 (E.D. Cal. Apr. 3, 2009); Osika v. Patrick, 2009 WL 485478 (C.D.

Cal. Feb. 20, 2009). A recent law review article also provides cogent anal-

ysis of the conflict between Garcia and the numerous California Court of

Appeal cases dealing with the specific intent issue since 2005, as well as

the inconsistency of results in some California cases. Martin Baker, Crips

and Nuns: Defining Gang-Related Crime in California Under the Street

Terrorism Enforcement and Prevention Act, 40 McGeorge L. Rev. 891

EMERY v. CLARK 6907

lished opinion, the Court of Appeal concluded that “Garcia is

not persuasive” in its interpretation of the specific intent

required for imposition of gang enhancements, People v.

Emery, 2006 WL 1431193 at *2, and further noted that the

Ninth Circuit decision in Garcia was at odds with the decision

of the Court of Appeal that ruled on Garcia’s direct appeal. Id.

at n.2.

A.

A close look at the facts and holdings of Garcia and Bri-

ceno brings into focus the stark conflict between the case law

of this court and the California Courts of Appeal regarding the

element of “specific intent” to support a gang enhancement

under section 186.22(b)(1).

In Garcia, the defendant was a member of a gang known

as El Monte Flores, or E.M.F. Id. at 1101. Its “turf” or terri-

tory extended to much of the City of El Monte, including the

location of a liquor store where Garcia robbed a patron of

$14.85 and his bicycle. The victim, Ricardo Bojorquez, nod-

ded toward Garcia and said, “How do you do?” Garcia

responded, “You know me?” Bojorquez answered, “No, I’m

just saying how are you.” Garcia then said, “If you don’t

know me, don’t be talking to me.” As Bojorquez continued

walking toward the counter, Garcia asked him if he had any

change, and Bojorquez answered that he did not. Garcia then

said, “Let’s see when you come out the door.” One of Gar-

cia’s companions asked Bojorquez where he was from, but

Bojorquez did not answer. When Bojorquez tried to leave the

store, Garcia stood in front of him and said, “I’m Little Risky

(2009). Needless to say, most of these cases are working their way through

the habeas pipeline, and will soon be making their way to this court. Thus,

a definitive interpretation of the “specific intent” element of the gang

enhancement statute from the California Supreme Court would greatly

assist both the state and federal courts, and, of course, the parties to these

cases.

6908 EMERY v. CLARK

from E.M.F.,” then asked, “you want to get jacked [robbed]?”

Garcia told his companions to watch for the police, then took

$14.85 from Bojorquez’s shirt pocket. One of Garcia’s com-

panions lifted his own shirt and grabbed the handle of what

Bojorquez thought was a pistol. Garcia told one of his com-

panions to take Bojorquez’s bicycle. After his associate did

so, Garcia and his companions left the store with it. Id.

A gang expert from the El Monte Police Department testi-

fied that E.M.F. was the largest street gang in the city, that it

was “turf-oriented,” and that the robbery had occurred in the

Little Five Points Area, which was part of E.M.F.’s turf. Id.

at 1101-02. He further testified that the robbery with which

Garcia was charged was similar to a series of robberies com-

mitted by E.M.F. members in the area during the few months

before the charged robbery, and that such robberies were a

primary activity of the E.M.F. gang. Id. at 1102. Although

Bojorquez had identified Garcia to the police the day after the

robbery, he testified at trial that he did not remember what the

gang members said and further testified that Garcia was not

one of the people who accosted him. Id. at 1101. The gang

expert testified that it was common for victims of gang-

related crimes to back-track on statements they initially made

to police because of the “fear intimidation process.” Id. at

1102.

The state court jury found Garcia guilty of the robbery of

Bojorquez, and found true the gang enhancement pursuant to

section 186.22(b)(1), and the gun use enhancement pursuant

to sections 12022.53(d) and (e)(1). Garcia, 395 F.3d at 1102.

In a 2-1 decision, the California Court of Appeal affirmed

Garcia’s conviction and the 21-year sentence imposed, includ-

ing 5 years for a prior serious felony. Id. (citing § 667(a)(1)).

The Court of Appeal rejected Garcia’s claim of insufficiency

of the evidence of the “specific intent” required for the gang

and gun use enhancements, because the evidence supported a

rational inference that the robbery of Bojorquez was not “a

random street robbery,” but one in a series of robberies com-

EMERY v. CLARK 6909

mitted in the Little Five Points Area “not only to obtain the

property of the victims, but also as a means of instilling fear

of the gang in the residents of the neighborhood, and thereby

facilitating the gang’s criminal operations in the area.” Id. at

1103.9 As the dissenting judge in Garcia noted, the California

Court of Appeal further observed that the “[r]esidents intimi-

dated in this fashion are less likely to report crime,” and that

“nefarious control of the Little Five Points Area and its resi-

dents qualifies, in our view, as criminal conduct by gang

members within the meaning of [section 186.22(b)(1)].” Id. at

1105 (Wallace, J., dissenting). The California Supreme Court

denied Garcia’s petition for review. Id. at 1102.

Upon the government’s appeal to the Ninth Circuit from a

district court order granting Garcia’s federal habeas petition,

the Garcia majority rejected the conclusion of the California

Court of Appeal, agreeing with the district court that the pros-

ecution was required to present evidence of some other spe-

cific criminal activity that was furthered by the crime of

conviction to satisfy the “specific intent” element in section

186.22(b)(1):

There is nothing in this record . . . that would support

an inference that Garcia robbed Bojorquez with the

specific intent to facilitate other criminal conduct by

the E.M.F. The evidence indicates that Garcia was a

gang member and that he robbed Bojorquez in an

area known to be in the heart of the gang’s “turf.”

Detective Hernandez, the gang expert, testified that

the gang was “turf oriented,” and he described three

other robberies committed by E.M.F. members in El

Monte during the few months prior to Garcia’s

9

The unpublished decision of the California Court of Appeal, Second

Appellate District, Division Three, in People v. Garcia, Cal. Ct. App. No.

B126441 (Jan. 13, 2000), is not available on-line. However, key rulings

of the Court of Appeal are quoted at length by the majority and the dissent

in Garcia. See 395 F.3d at 1103; id. at 1105-06 (Wallace, J., dissenting).

6910 EMERY v. CLARK

offense. But there is no evidence indicating that this

robbery was committed with the specific purpose of

furthering other gang criminal activity, and there is

nothing inherent in the robbery that would indicate

that it furthers some other crime. There is nothing on

the record that connects the “turf-oriented” nature of

the gang with the commission of robberies generally,

or, more importantly, with the commission of this

robbery in particular. The expert’s testimony is sin-

gularly silent on what criminal activity of the gang

was furthered or intended to be furthered by the rob-

bery of Bojorquez.

395 F.3d at 1103 (emphasis added).10 Specifically with respect

to the Court of Appeal’s conclusion that the jury could rea-

sonably infer the robbery by Garcia and his accomplices was

similar to the string of robberies about which the gang expert

had testified in detail, and which constituted “one of the pri-

mary activities” of the E.M.F. gang, the Garcia majority

declared that:

There was testimony that the gang committed rob-

beries, but there was nothing to indicate why those

robberies were aided or intended to be aided by this

robbery. Because there was no testimony or other

evidence to support a rational inference that the rob-

10

Although the Garcia majority did not cite them, the California cases

on which the district court relied in requiring proof of “other criminal con-

duct” apart from the offense of conviction, were People v. Beeman, 35

Cal.3d 547, 560 (1984), and People v. Green, 227 Cal.App.3d 692, 703-

04 (1991). The district court cited Beeman, which is a leading case defin-

ing “aider and abettor” liability, for the proposition that the “specific

intent” element of section 186.22(b)(1) “includes the intent to do some act

or achieve some consequence beyond the actus reus of the crime.” The

district court did not notice, however, that Green was interpreting section

186.22(a), which defines the substantive offense of “active participation”

in a criminal street gang, not the sentencing enhancement provisions in

section 186.22(b), which presuppose the commission of a specific substan-

tive offense.

EMERY v. CLARK 6911

bery of Bojorquez was committed with the intent to

further other criminal activity of E.M.F., the ruling

of the California Court of Appeal meets the deferen-

tial AEDPA standard for federal habeas corpus

relief: the ruling is “an unreasonable application of

[ ] clearly established Federal law, as determined by

the Supreme Court of the United States

Id. at 1103-04 (quoting 28 U.S.C. § 2254(d)(1); emphasis in

original).

In reaching this conclusion, the Garcia majority attempted

to distinguish the only California Supreme Court case that has

touched upon the “specific intent” element in section

186.22(b)(1), albeit only in passing. 395 F.3d at 1104 (citing

Gardeley, 14 Cal.4th 605, 619 (1997)). In Gardeley, the Court

found the “specific intent” element established by the testi-

mony of a gang expert about how the assault in that case,

committed on the “turf” of the criminal street gang of which

the co-defendants were members, in full view of residents in

the area, “was a ‘classic’ example of gang-related activity” in

that “criminal street gangs rely on such violent assaults to

frighten the residents of an area where the gang members sell

drugs, thereby securing the gang’s drug-dealing stronghold.”

14 Cal.4th at 619. The Garcia majority held that the expert

testimony in Gardeley was sufficient to permit the jury rea-

sonably to conclude that the attack was committed with the

necessary specific intent to further other criminal activity of

the defendants’ gang, but did not otherwise explain why it

believed “[n]o comparable testimony was presented in Gar-

cia’s case.” 395 F.3d at 1104.

Finally, the Garcia majority cited examples of California

cases in which it believed there was sufficient evidence of

“other criminal gang activity” furthered by the crime of con-

viction. Id. (citing People v. Augborne, 104 Cal.App.4th 362,

372-73 (2002) (expert testified that explicitly gang-related

criminal threats made in support of a fellow gang member

6912 EMERY v. CLARK

were committed for the promotion and assistance of criminal

conduct by gang members);11 In re Ramon T., 57 Cal.App.4th

201, 207-08 (1997) (assault on peace officer who had another

gang member in custody was committed in order to assist the

gang member’s escape); People v. Ortiz, 57 Cal.App.4th 480,

484-85 (1997) (robbery and murder committed with the spe-

cific intent of framing a rival gang for the crimes).

B.

In Briceno, 555 F.3d 1069, our court recently held—again

in a 2-1 decision—that Garcia was correctly decided, not-

withstanding the fact that its interpretation of California’s

gang enhancement statute has been repeatedly rejected by

numerous California state courts. Id. at 1080-83 (declining to

follow Hill, 142 Cal.App.4th 770, and Romero, 140

Cal.App.4th 15); id. at 1081 n.4 (concluding that Morales,

112 Cal.App.4th 1176, is not an accurate statement of Califor-

nia law).

The defendant in Briceno was convicted of a string of four

armed robberies committed with a fellow gang member dur-

ing a “grinchly crime wave” between 1:00 a.m. and 3:30 a.m.

on Christmas day in 2000 in Anaheim and Garden Grove,

California. 555 F.3d at 1072. Briceno and his accomplice,

Landin, were both members of the Hard Times Street Gang,

11

It is not clear that the defendant’s “specific intent” under section

186.22(b)(1) was even at issue in Augborne. See 104 Cal.App.4th at 370,

373 (defendant challenged only findings of two or more “predicate

offenses” required to establish a “pattern of criminal gang activity” under

section 186.22(e) and his membership in a “criminal street gang” within

the meaning of section 186.22(f), claiming there was insufficient evidence

that the persons who committed prior crimes were gang members at the

time or that the predicate crimes were committed “for the benefit” of the

gang). There was also no indication that the gang expert explained how

the criminal threats made by the defendant would “promote, further or

assist” criminal gang conduct apart from the offenses of conviction. See

104 Cal.App.4th at 369-70, 372-73.

EMERY v. CLARK 6913

which was stipulated to be a “criminal street gang” within the

meaning of section 186.22. Id. at 1072-73.

At the joint trial of Briceno and Landin, the prosecution

presented the testimony of a gang expert, Peter Vi, who had

been assigned to patrol the three block area of Garden Grove

controlled by the Hard Times gang. Id. at 1073-74. Vi testi-

fied in general about gang culture, including the central role

of “respect” as a source of power for gang members, and how

gang members use violence to increase the respect they and

their gang are given, to raise their individual status within the

gang, and to increase their recruitment of new gang members.

Id. at 1074. When given a hypothetical incorporating the facts

of the case, and asked whether he believed the four robberies

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 did not directly

answer, but said he thought the co-defendants’ actions were

intended to “glorify” the gang, and that the crimes would raise

their status in the gang and give them increased opportunities

to participate in further crimes that other Hard Timers would

be more likely to solicit them to commit. Id. When asked if

his opinion would be any different if he knew that the rob-

beries were committed to get money with which to buy

Christmas presents (as Landin told one of the police detec-

tives) and that they yielded only a relatively small amount of

money, Vi said those facts would be of no moment; the defen-

dants’ conduct would nonetheless glorify the gang and their

status would be enhanced within the gang. Id.

Briceno and Landin were both convicted of four counts of

second degree robbery and four counts of street terrorism, and

the jury found true the section 186.22(b)(1) gang enhance-

ments alleged as to each robbery count. Id. at 1075. Because

he had two prior convictions of serious or violent felonies,

and had served a prior prison term, Briceno was sentenced

under California Three Strikes law to an indeterminate sen-

6914 EMERY v. CLARK

tence of 27 years to life, and a determinate sentence of 23

years and 4 months, including the gang enhancements for the

robberies. Id.

On direct appeal, the California Court of Appeal rejected

Briceno’s argument that the evidence was insufficient to sup-

port a finding that the crimes were committed “for the benefit

of a criminal street gang” within the meaning of the gang

enhancement statute. See People v. Briceno, No. G029525,

2003 WL 1710927 (Cal. Ct. App. Mar. 28, 2003). The Cali-

fornia Court of Appeal explained:

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.

Id. at *3 (quoted in Briceno, 555 F.3d at 1075). The Califor-

nia Supreme Court denied Briceno’s petition for review, but

granted the government’s petition for review on an unrelated

sentencing issue, as to which it subsequently reversed the

judgment of the Court of Appeal, but affirmed in all other

respects. See People v. Briceno, 34 Cal.4th 451, 456 (2004).

In the habeas proceedings before this court, Briceno relied

on Garcia to argue that the evidence at trial was insufficient

to support the finding that he committed the robberies with

the “specific intent to promote, further or assist in any crimi-

nal conduct by gang members” within the meaning of section

EMERY v. CLARK 6915

186.22(b)(1). The Briceno majority agreed, and rejected the

holding of the California Court of Appeal on the gang

enhancement issue. 555 F.3d at 1078-83. First, the Briceno

majority observed that the gang expert testified only in “gen-

eralities” about how the robberies would “glorify” the defen-

dant’s gang and “sa[id] nothing about Briceno’s specific

intent in committing the robberies.” 555 F.3d at 1078-79

(emphasis in original). In addition, the Briceno majority held

that the record was “singularly silent” as to what other crimi-

nal activity of the gang, apart from the offenses of conviction,

was intended to be furthered or facilitated by the robberies, as

required by Garcia. Id. at 1079 & n.3 (emphasis added).

Finally, the Briceno majority concluded the “specific intent to

. . . assist in any criminal conduct by gang members” was not

established because “the mere fact that Briceno committed the

robberies with another gang member is insufficient to support

a gang enhancement under section 186.22(b).” 555 F.3d at

1083; id. at 1081 n.4 (distinguishing Morales).12

The Briceno majority acknowledged that, in the absence of

a pronouncement by the state’s highest court on an issue of

state law, the federal courts are bound to follow the decisions

of the intermediate state appellate courts unless there is “con-

vincing evidence” that the state’s highest court would reach

a different conclusion. 555 F.3d at 1080 (citing Owen ex rel.

Owen v. United States, 713 F.2d 1461, 1464 (9th Cir. 1983),

and In re Watts, 298 F.3d 1077, 1082-83 (9th Cir. 2002)).

Nevertheless, it rejected the government’s suggestion that

Garcia is no longer good law since the California Courts of

Appeal in Romero and Hill held that this court misinterpreted

section 186.22(b)(1) in that case. 555 F.3d at 1079-80. The

Briceno majority also declined to follow several pre- and

12

While it said so only in a footnote, the Briceno majority found that the

“only evidence” presented to the jury as to Briceno’s specific intent indi-

cated that he and Landin committed the robberies “on a frolic and detour

unrelated to the gang,” namely, to obtain money to buy Christmas pres-

ents. 555 F.3d at 1081 n.4.

6916 EMERY v. CLARK

post-Garcia decisions from the California Courts of Appeal

which have held that, under the plain language of section

186.22(b)(1), a specific intent to assist a known gang member

in committing the crime of conviction is sufficient to satisfy

the “specific intent” element. Villalobos, 145 Cal.App.4th at

322 (evidence that non-gang member defendant committed

robbery and burglary in concert with her boyfriend, a known

gang member, was substantial evidence that she acted with

the specific intent required for gang enhancement); Romero,

140 Cal.App.4th at 19-20 (evidence that the defendant drove

a fellow gang member into a rival gang’s territory to carry out

a drive-by shooting was sufficient to establish defendant’s

specific intent for gang enhancement, as it was fairly inferable

that he intended to assist his fellow gang member in commit-

ting the murder); Morales, 112 Cal.App.4th at 1198 (evidence

that defendant intended to commit robberies in association

with two fellow gang members was sufficient to prove he

intended to aid and abet the robberies and specifically

intended to assist in that criminal conduct by fellow gang

members within meaning of gang enhancement statute); see

also Vazquez, 178 Cal.App.4th at 353-55 (evidence that the

defendant and two fellow gang members killed a man they

suspected of being a member of a rival gang, and that defen-

dant was assisted by other gang members and associates as he

attempted to evade arrest, was sufficient to establish specific

intent to “promote” criminal activity of his gang).

The Briceno majority explained its refusal to follow this

substantial body of authority from the California Courts of

Appeal by saying that the Garcia panel had examined Garde-

ley, 14 Cal.4th 605, to find “the type of evidence necessary to

sustain a gang enhancement” under section 186.22(b)(1), 555

F.3d at 1080-81, and that under the “authoritative interpreta-

tion” provided by the California Supreme Court in that case,

“merely being a gang member or committing a crime in asso-

ciation with another gang member” cannot satisfy the “spe-

cific intent” element of the California gang enhancement

statute. 555 F.3d at 1080 (citing Gardeley, 14 Cal.4th at 624

EMERY v. CLARK 6917

n.10).13 Rather, some “circumstantial evidence” of specific

intent to aid or abet the criminal conduct of the gang or other-

wise to benefit the gang—e.g., evidence that the defendant

committed the crime to protect gang “turf” or brandished

gang signs or used a gang moniker—is required. 555 F.3d at

1080-81.14

Thus, the Briceno majority concluded that Gardeley sug-

gests the California Supreme Court “would not adopt the

State’s understanding of Romero and Hill,” 555 F.3d at 1080,

and would not hold that there was sufficient evidence that Bri-

ceno committed the four Christmas day robberies—which

were not committed in Hard Times gang territory or on the

“turf’ of a rival gang, and in which neither Briceno nor

Landin flashed gang signs or tattoos or used gang monikers—

with the “specific intent to promote, further, or assist in any

criminal conduct by gang members” as required by section

186.22(b)(1). 555 F.3d at 1081-82.

C.

As the foregoing demonstrates, there is sharp divergence of

opinion between this court and the California Courts of

13

On this point, the Briceno majority believed Gardeley made clear that

the California gang statute “increased punishment only when a defendant

‘committed 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.’ ” 555 F.3d at 1080 (quoting Gardeley, 14

Cal.4th at n.10) (emphasis added in Briceno). When read in the context,

however, the statement more accurately appears to reflect only the Garde-

ley Court’s view that section 186.22 does not punish a defendant for other

gang members’ unrelated criminal actions. See Gardeley, 14 Cal.4th at

624 n.10.

14

The Briceno majority did not explain why the use of a gang moniker

during the robbery in Garcia by members of a “turf-oriented” gang, in the

“heart of their turf,” as but one of a series of similar robberies in the same

area, see 395 F.3d at 1103, did not qualify as “circumstantial evidence”

of an intent to benefit the gang.

6918 EMERY v. CLARK

Appeal regarding the proper interpretation of the “specific

intent” element that must be proven beyond a reasonable

doubt before a criminal street gang enhancement may be

imposed pursuant to section 186.22(b)(1). The main point of

disagreement is whether an offense of conviction qualifies as

“any criminal conduct by gang members” that the defendant

must have specifically intended to “promote, further, or

assist,” or whether proof of some “other” criminal conduct,

apart from the offense of conviction, is required. A second,

but equally important matter of dispute is whether evidence

that the defendant acted in concert with another gang member,

with the specific intent to “assist” him or her in committing

the crime of conviction, will satisfy the “specific intent” ele-

ment in section 186.22(b)(1). A further point of disagreement

is about the quantum and quality of proof a “gang expert”

may provide to satisfy the “specific intent” requirement under

section 186.22(b)(1).

The conflict between the state and federal courts on these

issues will likely increase as the many dozens of pending Cal-

ifornia criminal cases with gang enhancements wend their

way through the direct appeal and collateral review processes,

and may not be resolved until the California Supreme Court

sees its way clear to take up the issue. As the gulf between

these two bodies of law widens, moreover, the tension

between California state law as declared by the California

Courts of Appeal, and the federal courts’ “best guess” as to

the circumstances under which the California Supreme Court

would uphold or strike down gang enhancements, will only

grow.

We realize that our request is a bit unusual. Indeed, we

have not found any other published order or decision in which

a federal court of appeals has asked the California Supreme

Court to interpret a provision of the California Penal Code, or

any decision in which California’s high court agreed to inter-

pret a state criminal statute at the behest of a federal court—

much less any request for an authoritative interpretation of a

EMERY v. CLARK 6919

California criminal statute to be applied in federal habeas cor-

pus proceedings. But we see nothing in the California Rules

of Court that precludes our request, and we believe principles

of comity will be best served by our making this request now,

rather than allowing the conflict over these important ques-

tions of state law to fester.

On questions of state law we take very seriously our obliga-

tion to “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,

713 F.2d at 1464. But where, as here, there are conflicting

views within our own court as to whether the California

Supreme Court would reject the nearly unanimous decisions

of the California Courts of Appeal on these issues, see Bri-

ceno, 555 F.3d at 1080-82, cf. id. at 1086-90 (Wardlaw, J.,

dissenting), we believe the California Supreme Court should

have the opportunity to speak for itself. We would be grateful

if the Court would take that opportunity here, and grant our

request to answer the certified questions.

V. Stay and Withdrawal from Submission

All further proceedings in this case are stayed pending final

action by the California Supreme Court. This case is with-

drawn from submission until further order of this court. This

panel retains jurisdiction over any further proceedings in this

case upon receipt of a decision from the California Supreme

Court answering the certified question or a decision declining

to answer the certified question.

The parties shall notify the clerk of this court within ten

(10) days after the California Supreme Court accepts or

rejects certification. If the California Supreme Court accepts

the certified question or questions, the parties shall file a joint

status report in this court every sixty days after the date of

acceptance, or more frequently if circumstances warrant, and

6920 EMERY v. CLARK

again within ten days if the California Supreme Court renders

an opinion.

In accordance with rule 8.548 of the California Rules of

Court, the clerk of this court is hereby directed to transmit

forthwith to the California Supreme Court, under official seal

of the Ninth Circuit, the original and ten copies of this order,

along with all relevant briefs and excerpts of record. The clerk

shall also file a certificate of service on the parties to this

appeal. Cal. R. Ct. 8.548(c)-(d).

It is so ORDERED.