Briceno v. Scribner

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALBERTO FRANCISCO BRICENO,  No. 07-55665

Petitioner-Appellant, D.C. No.

v.  CV-05-00455-

A. K. SCRIBNER, Warden, MMM

Respondent-Appellee.

 OPINION

Appeal from the United States District Court

for the Central District of California

Margaret M. Morrow, District Judge, Presiding

Argued and Submitted

August 8, 2008—Pasadena, California

Filed February 23, 2009

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

*The Honorable Roger J. Miner, Senior United States Circuit Judge for

the Second Circuit, sitting by designation.

2077

2080 BRICENO v. SCRIBNER

COUNSEL

Vivian A. Fu, San Francisco, California, 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, California, for

the respondent-appellee.

BRICENO v. SCRIBNER 2081

OPINION

MINER, Circuit Judge:

I. Introduction

Alberto Francisco Briceno appeals from a judgment of the

United States District Court for the Central District of Califor-

nia (Morrow, J.) denying his petition for a writ of habeas cor-

pus. Briceno was convicted, following a jury trial, of four

counts of second degree robbery and four counts of street ter-

rorism 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 Dis-

trict Court. Ultimately, we granted a certificate of appeala-

bility 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, 135 Cal. Rptr. 2d 912, 913 (Ct.

App. 2003), rev’d in part on other grounds, 99 P.3d 1007

(Cal. 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

2082 BRICENO v. SCRIBNER

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 encoun-

ter, 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.

BRICENO v. SCRIBNER 2083

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 penal-

ties 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 Sec-

tion 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

2084 BRICENO v. SCRIBNER

gang membership and described the structure, operations, cul-

ture, 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 per-

son driving approached a second person, passenger

BRICENO v. SCRIBNER 2085

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 driv-

ing, 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 Ana-

heim.

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 fol-

lows:

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

2086 BRICENO v. SCRIBNER

itself, because, one, they commit this crime, the pos-

sibility 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 to buy

Christmas presents. He said it would not, because the status

of the individuals would nevertheless be increased within the

gang. On cross-examination, when asked about a robbery

involving only a small amount of money, he responded that

“it would glorify the gang not in the amount taken but it

would glorify the gang that the actions were taken by the gang

members.”

On July 13, 2001, the jury convicted Briceno of four counts

of second degree robbery, in violation of California Penal

Code § 211, and four counts of street terrorism, in violation

of California Penal Code § 186.22(a). The jury also found that

all four robberies were committed for the benefit of, at the

direction of, or in association with a criminal street gang

within the meaning of California Penal Code § 186.22(b)(1).

The jury made the same findings as to Landin.

The trial court found separately that Briceno had committed

two prior serious or violent felonies within the meaning of the

California Three Strikes Law and had previously served a

prison term. Taking all factors into account and staying the

imposition of the sentence for the street terrorism convictions,

the court imposed upon Briceno an indeterminate sentence of

27 years to life and a determinate sentence of 23 years and 4

months. Included in the sentences were enhancements based

on the criminal street gang findings.

BRICENO v. SCRIBNER 2087

IV. Of the State Court Appeals and the Habeas Petition

Briceno appealed his conviction to the California Court of

Appeal. On June 20, 2003, the Court of Appeal issued an

opinion in which it held that the criminal street gang enhance-

ments provided under § 186.22 “cannot be used to transform

an unenumerated offense into a ‘serious’ felony” under the

California Penal Code. See Briceno, 135 Cal. Rptr. 2d at 913.

Accordingly, the Court of Appeal found that one of Briceno’s

prior convictions did not qualify as a serious or violent felony

under California’s Three Strikes Law, and remanded his case

for resentencing. The Court of Appeal affirmed Briceno’s

judgment in all other respects. Id.

Thereafter, Briceno filed a petition for review in the Cali-

fornia Supreme Court, contending that the admission in evi-

dence of the gang expert’s opinion testimony violated his jury

trial and due process rights. He also contended that there was

insufficient evidence to support one of his robbery convic-

tions and the gang enhancements. The State of California also

petitioned the California Supreme Court for review, asserting

that the Court of Appeal erred in finding that felonies with

gang enhancement are not serious felonies under the Califor-

nia Three Strikes Law. On September 24, 2003, the Supreme

Court granted the State’s petition only and, on November 4,

2004, issued its opinion in the case. People v. Briceno, 99

P.3d 1007 (Cal. 2004). In the opinion, the court determined

that felonies with gang enhancements are serious felonies

within the meaning of California’s Three Strikes Law. Id. at

1014-15; see also Cal. Penal Code § 667. The court therefore

reversed the judgment of the Court of Appeal insofar as it

found that one of Briceno’s convictions did not qualify as a

serious felony, and affirmed the judgment in all other

respects. Briceno, 99 P.3d at 1015.

On May 16, 2005, Briceno filed a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 in the United

States District Court for the Central District of California. In

2088 BRICENO v. SCRIBNER

his petition, Briceno advanced the following three grounds for

relief:

Petitioner was denied due process and a trial by

jury as a result of the gang expert’s improper opinion

testimony. . . .

....

Petitioner was denied due process because there

was insufficient evidence to support the robbery con-

viction on count 4 and the gang enhancements on

Counts 1-4 beyond a reasonable doubt. . . .

....

Petitioner was denied due process because there

was insufficient evidence that his 1998 conviction

was a prior felony conviction for purposes of the 3

strikes law and the enhancement under Pen. Code

sec 667(a).

On May 11, 2006, Magistrate Judge Lum issued a compre-

hensive Report and Recommendation recommending denial

of the petition in all respects. The District Judge adopted the

Report and Recommendation over Briceno’s objections in an

Order dated July 19, 2006, and directed that judgment be

entered dismissing the petition with prejudice. On May 11,

2007, the District Court issued an Order denying an applica-

tion filed by Briceno for a certificate of appealability, finding

that Briceno “has not made a substantial showing of the denial

of a constitutional right, as is required to support the issuance

of a Certificate of Appealability.” An application for a certifi-

cate thereafter made to this court was granted by Order filed

on August 2, 2007, with respect to the issues set forth in Part

I above.

BRICENO v. SCRIBNER 2089

ANALYSIS

I. Of the Standards to be Applied

We are constrained to undertake a de novo review of a dis-

trict court’s decision to deny a petition for habeas corpus. See

Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir. 2004).

Habeas relief cannot be granted to a state prisoner “with

respect to any claim that was adjudicated on the merits in

State court . . . unless the adjudication of the claim . . .

resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States;” or

“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). Briceno seeks habeas relief from the

state-court adjudication in his case on the basis of the first of

these standards.

The Supreme Court has observed that § 2254(d) established

a “highly deferential standard for evaluating state court rul-

ings.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (quoting

Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)). A state

court’s decision is “contrary to” clearly established federal

law only where “the state court arrives at a conclusion oppo-

site to that reached by [the Supreme] Court on a question of

law or if the state court decides a case differently than [the

Supreme] Court has on a set of materially indistinguishable

facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

There is an “unreasonable application” of clearly established

federal law when a state court “correctly identifies the gov-

erning legal rule but applies it unreasonably to the facts of a

particular prisoner’s case.” Id. at 407-08. A state court deci-

sion can also involve an unreasonable application of clearly

established precedent “if the state court either unreasonably

extends a legal principle from [the Supreme Court’s] prece-

dent to a new context where it should not apply or unreason-

ably refuses to extend that principle to a new context where

2090 BRICENO v. SCRIBNER

it should apply.” Id. at 407. The state court’s error must be

one that the habeas court concludes is objectively unreason-

able, not merely erroneous or incorrect. Id. at 409-11.

II. Of the Challenge to the Expert Testimony

Briceno contends that the state appellate court, in affirming

the state trial court, unreasonably applied established federal

law by allowing expert testimony violative of his constitu-

tional right to due process and a fair trial. Specifically, Bri-

ceno asserts that a reasonable application of settled law would

result in a finding of constitutional error in admitting Peter

Vi’s testimony that the robberies for which Briceno was con-

victed were committed for the benefit of a criminal street

gang. It will be remembered that Vi was given a hypothetical

question asking him to assume the precise facts of the rob-

beries and, based on these facts, to tell the jury whether each

crime was 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 . . . gang.” Vi’s response, the object of this

challenge, was to give his “opinion . . . that . . . the two Hard

Timers, the crimes they were involved in benefit the gang

itself, the action that they have done to glorify the gang.”

Briceno claims that Vi’s “testimony should have been

excluded because it was based on facts insufficient to support

an opinion on the issue, constituted improper opinion on guilt,

and essentially directed the jury to find the gang enhance-

ments true.” In holding that the trial court did not abuse its

discretion in determining that Vi’s expert opinion would assist

the jury in deciding whether the prosecution had proved the

gang enhancement allegations, the appellate court referred to

California precedent:

As People v. Olguin (1994) 31 Cal. App. 4th 1355,

37 Cal. Rptr. 2d 596[,] explains, “[t]he requirements

for expert testimony are that it relate to a subject suf-

BRICENO v. SCRIBNER 2091

ficiently beyond common experience as to assist the

trier of fact and be based on matter that is reasonably

relied upon by an expert in forming an opinion on

the subject to which his or her testimony relates.

Such evidence is admissible even though it encom-

passes the ultimate issue in the case.”

People v. Briceno, Nos. G029525, G029607, 2003 WL

1710927, at *2 (Cal. Ct. App. Mar. 28, 2003) (internal cita-

tions omitted). Indeed, California Evidence Code § 801(a)

provides that an expert witness may give opinion testimony if

the opinion is “[r]elated to a subject that is sufficiently beyond

common experience that the opinion of an expert would assist

the trier of fact.” Applying its precedent, the Court of Appeal

found that “Vi’s expert testimony focused on whether these

particular incidents were ‘gang-related activity.’ . . . Vi did

not offer opinions on the definitions of crimes, whether a

crime had been committed, or on defendant’s guilt.” Briceno,

2003 WL 1710927, at *2 (internal citations omitted).

[1] In any event, evidence erroneously admitted warrants

habeas relief only when it results in the denial of a fundamen-

tally fair trial in violation of the right to due process. See

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Federal

habeas courts do not review questions of state evidentiary

law. Id. Our habeas powers do not allow us to vacate a con-

viction “based on a belief that the trial judge incorrectly inter-

preted the California Evidence Code in ruling” on the

admissibility of evidence. Id. at 72. With regard to expert tes-

timony, we recently noted that we have found no cases “sup-

port[ing] the general proposition that the Constitution is

violated by the admission of expert testimony concerning an

ultimate issue to be resolved by the trier of fact.” Moses v.

Payne, 543 F.3d 1090, 1105 (9th Cir. 2008). “Although ‘[a]

witness is not permitted to give a direct opinion about the

defendant’s guilt or innocence . . . . an expert may otherwise

testify regarding even an ultimate issue to be resolved by the

trier of fact.’ ” Id. at 1106 (quoting United States v. Lockett,

2092 BRICENO v. SCRIBNER

919 F.2d 585, 590 (9th Cir. 1990) (alteration in original)). We

found this “not surprising,” id., in light of the well-established

rule permitting opinion testimony on ultimate issues, see Han-

garter v. Provident Life & Accident Ins. Co., 373 F.3d 998,

1016 (9th Cir. 2004).

[2] The thrust of Briceno’s evidentiary challenge is that

Vi’s testimony that the hypothetical robberies would have

been gang-related should have been excluded as pertaining to

an ultimate issue for the jury. Our recent decision in Moses

forecloses such a challenge, as it holds that there is no clearly

established constitutional right to be free of an expert opinion

on an ultimate issue. See 543 F.3d at 1105-06. Accordingly,

the admission of the opinion testimony of Peter Vi cannot be

said to be contrary to, or an unreasonable application of,

Supreme Court precedent.

III. Of the Sufficiency of the Evidence to Support the Gang

Enhancement Penalties

Briceno also argues that the evidence at trial was insuffi-

cient to support the enhancements, as there was not sufficient

evidence to sustain the conclusion that the robberies were

committed with the specific intent to benefit a criminal street

gang. We agree.

To prevail on an insufficiency of evidence claim, a habeas

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 by 28 U.S.C. § 2254(d), which obliges

Briceno to demonstrate that the state court’s adjudication

entailed an unreasonable application of the quoted Jackson

standard. See Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir.

2005).

[3] To warrant a gang enhancement, California law requires

the prosecutor to prove two things. First, the prosecutor must

BRICENO v. SCRIBNER 2093

demonstrate that the defendant committed a felony “for the

benefit of, at the direction of, or in association with [a] crimi-

nal street gang.” Cal. Penal Code § 186.22(b)(1). Second, the

prosecutor must show that the defendant committed the crime

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

criminal conduct by gang members.” Id. We have previously

recognized the importance of keeping these two requirements

separate, and have emphasized that the second step is not sat-

isfied by evidence of mere membership in a criminal street

gang alone. See Garcia v. Carey, 395 F.3d 1099, 1102-03 &

n.5 (9th Cir. 2005).

The California Court of Appeal limited its analysis of the

sufficiency of the evidence supporting the criminal street gang

enhancements to the following:

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.

Briceno, 2003 WL 1710927, at *3. Under our case law, this

analysis represents an unreasonable application of the Jackson

standard, for several reasons.

[4] First, Vi’s testimony did not establish Briceno’s specific

intent in committing the robberies, nor could it. Vi’s testi-

mony dealt almost exclusively in hypotheticals; he did not

provide any direct or circumstantial evidence of Briceno and

2094 BRICENO v. SCRIBNER

Landin’s own intent. Even when asked whether he had “an

opinion as to whether or not [the robberies] . . . were commit-

ted . . . with intent to promote, further and assist criminal con-

duct by members of the Hard Times gang,” Vi did not provide

such an opinion. Instead, he responded in generalities, stating

that such crimes “glorif[ied]” the gang and increased the sta-

tus of the offenders.1 Although we need not decide whether

there was sufficient evidence with regard to the first prong of

the gang enhancement, Vi’s testimony might have helped to

establish the first element of the gang enhancement, i.e., that

the crime ultimately benefitted the gang in some way. But it

says nothing about Briceno’s specific intent in committing the

robberies.2

[5] Second, the California Court of Appeal’s analysis runs

afoul of this court’s decision in Garcia v. Carey. In Garcia,

the defendant, a known gang member, robbed the victim “in

an area known to be in the heart of the gang’s ‘turf.’ ” 395

F.3d at 1103. Although a police expert testified that the defen-

dant’s gang was “turf-oriented,” we held that there was insuf-

ficient evidence to warrant an enhanced sentence under

§ 186.22(b)(1) because there was no evidence, aside from the

gang expert’s generic testimony, “that would support an infer-

ence that Garcia robbed [the victim] with the specific intent

to facilitate other criminal conduct by the [gang].” Id. Aside

from evidence of Garcia’s gang membership, the record was

“singularly silent” as to “what criminal activity of the gang

1

An affirmative response by Vi, combined with his expressed judgment

that the crimes were committed for the benefit of the gang, would proba-

bly have amounted to an expert opinion that Briceno was guilty, and so

would have been improper. See Moses, 543 F.3d at 1106; Lockett, 919

F.2d at 590. We need not so decide, however, as Vi did not in fact testify

as to Briceno’s specific intent.

2

Moreover, Vi was precluded from testifying about the intent issue.

Under California law, a gang expert cannot testify as to a defendant’s spe-

cific intent in committing a crime. See In re Frank S., 46 Cal. Rptr. 3d

839, 842-44 (Ct. App. 2006); People v. Killebrew, 126 Cal. Rptr. 2d 876,

886 (Ct. App. 2002).

BRICENO v. SCRIBNER 2095

was . . . intended to be furthered by the robbery.” Id. We con-

cluded that this lack of evidence triggered application of the

Jackson standard, as “[w]ithout this evidentiary link, it is

unreasonable to conclude that a rational jury could find that

Garcia committed [this robbery] with the specific intent to

facilitate other gang crimes. There was simply a total failure

of proof of the requisite specific intent.”3 Id. at 1104.

The State urges us to disregard Garcia, citing two Califor-

nia appellate court decisions holding that Garcia misinter-

preted California law. See People v. Hill, 47 Cal. Rptr. 3d

875, 877 (Ct. App. 2006); People v. Romero, 43 Cal. Rptr. 3d

862, 865 (Ct. App. 2006). Romero and Hill both held that “the

specific intent element is satisfied if [the defendant] had the

specific intent to ‘promote, further, or assist’ [a fellow gang

member] in [any criminal conduct].” Romero, 43 Cal. Rptr.

3d at 866; Hill, 47 Cal. Rptr. 3d at 877. The State argues that

we are bound by this construction of the statute, under which

the gang enhancements are warranted so long as Briceno

intended to assist Landin in the commission of the crime and

knew that Landin was a gang member.

[6] Although we are ordinarily bound by a state’s highest

court’s interpretation of its own statute, see Dimidowich v.

Bell & Howell, 803 F.2d 1473, 1482 (9th Cir. 1986), none of

the post-Garcia cases cited by the State were decided by the

3

The dissent draws a distinction between this appeal, which involves the

commission of a crime with another gang member, and Garcia, which

involved the commission of a crime by one gang member and another who

may or may not have been a gang member, to conclude that our reliance

on Garcia is misplaced. Diss. Op. at 2109-10. This distinction is irrele-

vant. Garcia concluded only that the specific intent required under

§ 186.22(b) must be to facilitate other criminal activities by gang mem-

bers. See Garcia, 395 F.3d at 1103-04. The court’s reading of § 186.22(b)

in Garcia does not depend upon whether the defendant acted alone or with

another gang member. A defendant acting alone is capable of as much

intent to facilitate gang activities as two defendants acting in concert. That

Briceno committed the crimes alone, with Landin, or with ten other gang

members is not dispositive in identifying the necessary specific intent.

2096 BRICENO v. SCRIBNER

California Supreme Court, which has yet to address this issue.

This panel would therefore normally be bound by the prior

panel’s decision in Garcia, which expressly rejected the same

interpretation of § 186.22(b) advanced by the State in this

case. The State argues, however, that intervening case law in

the lower state courts, i.e., Romero and Hill, has cast doubt on

Garcia. “In the absence of a pronouncement by the highest

court of a state, the federal courts must 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 ex rel. Owen v. United States, 713

F.2d 1461, 1464 (9th Cir. 1983) (internal quotation marks

omitted); see also In re Watts, 298 F.3d 1077, 1082-83 (9th

Cir. 2002); Dimidowich, 803 F.2d at 1482. Our task is there-

fore to determine whether, after Romero and Hill, there

remain convincing reasons to believe that the California

Supreme Court would hold the sentencing enhancements

available under § 186.22(b) inapplicable to Briceno’s case.

[7] To the extent that the California Supreme Court has

provided an authoritative interpretation of § 186.22(b), that

interpretation suggests that the Court would not adopt the

State’s understanding of Romero and Hill. In People v.

Gardeley, 927 P.2d 713 (Cal. 1997) (as modified), the Cali-

fornia Supreme Court noted that the statute “does not crimi-

nalize mere gang membership; rather, it imposes increased

criminal penalties only when the criminal conduct is felonious

and committed not only ‘for the benefit of, at the direction of,

or in association with’ a [gang], but also with the ‘specific

intent to promote, further, or assist in any criminal conduct by

gang members.’ ” Id. at 725. The court further explained that

these “detailed requirements” were designed to ensure that the

statute increased punishment only when a defendant “commit-

ted 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.” Id.

at 725 & n.10 (emphasis added). In contrast to the State’s

BRICENO v. SCRIBNER 2097

interpretation of Romero and Hill, Gardeley suggests that

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

ciation with another gang member, is not enough to trigger

the sentencing enhancements of § 186.22(b). Rather, the

defendant must commit the crime with the specific intent to

aid or abet the criminal conduct of the gang. This is precisely

the evidence lacking in Briceno’s case.

Moreover, as this court previously recognized in Garcia,

the California Supreme Court’s analysis in Gardeley high-

lights the type of evidence necessary to sustain gang enhance-

ments under § 186.22(b). In Gardeley, the California Supreme

Court found sufficient evidence of gang-related criminal con-

duct where two gang members severely beat and robbed their

victim in full view of neighboring apartment residents. A

gang expert testified that such an assault on the gang’s own

“turf,” where they had effectively monopolized the drug trade,

was committed to intimidate local residents and dissuade

them from reporting the gang’s activities. Id. at 716-18. The

court recognized the assault as a “ ‘classic’ example of gang-

related activity,” holding that such testimony allowed the jury

to reasonably conclude that the assault was committed “with

a specific intent to promote, further, or assist in . . . criminal

conduct by gang members.” Id. at 722.

[8] This theme also runs throughout the other California

cases cited by the State, including Romero and Hill. In each

case, a jury could reasonably conclude that the defendant

committed the crime with the specific intent to benefit the

gang, as the defendant either committed the crime to protect

gang “turf” or brandished gang signs or a gang moniker dur-

ing the attack. See, e.g., People v. Villalobos, 51 Cal. Rptr. 3d

678, 681 (Ct. App. 2007) (crime committed on gang turf);

Hill, 47 Cal. Rptr. 3d at 876 (defendant announced gang

membership); Romero, 43 Cal. Rptr. at 864-65 (retaliatory

shooting on a rival gang’s turf).4 Here, by contrast, such cir-

4

The one case relied upon by the State that did not involve a specific

indicia of gang-related criminal conduct was decided prior to our decision

2098 BRICENO v. SCRIBNER

cumstantial evidence of intent is wholly lacking: the individ-

ual robberies were not committed in Hard Times gang

territory or on the “turf” of a rival gang, neither Briceno nor

Landin made their gang membership known to the robbery

victims, and, indeed, there is no evidence whatsoever of any

connection between the gang and the robberies.5

in Garcia, and specifically distinguished a case like Briceno’s. In People

v. Morales, 5 Cal. Rptr. 3d 615 (Ct. App. 2003), three gang members com-

mitted a robbery during a drug deal gone bad. The Court of Appeal sus-

tained gang enhancements because “there was evidence that defendant

intended to commit robberies, that he intended to commit them in associa-

tion with Flores and Moreno, and that he knew that Flores and Moreno

were members of his gang.” Id. at 632. The court noted, however, that

“[a]dmittedly, it is conceivable that several gang members could commit

a crime together, yet be on a frolic and detour unrelated to the gang. Here,

however, there was no evidence of this. Thus, the jury could reasonably

infer the requisite association from the very fact that defendant committed

the charged crimes in association with fellow gang members.” Id.

Given our analysis of Gardeley, we doubt that Morales is an accurate

statement of California law, and the Garcia panel must be taken to have

so determined. But even if it were, Briceno correctly points out that the

only evidence presented to the jury as to his specific intent indicated that

he and Landin committed the robberies “on a frolic and detour unrelated

to the gang,” namely, to buy Christmas presents.

5

Given this lack of evidence, Briceno presents an even stronger case

than the defendant in Garcia. In that case, the defendant committed a rob-

bery on gang turf and announced himself to the victim as “Little Risky

from [El Monte Flores, his gang].” 395 F.3d at 1101. Although the State

argued on appeal that the turf-oriented nature of the crime and the use of

a gang moniker demonstrated that Garcia intended to instill fear of the

gang in residents of the neighborhood to facilitate gang operations, the

panel majority rejected “this theory of specific intent” because it “had

never been argued to the jury by the prosecution and the jury had not been

asked to make such an inference.” Id. at 1103. In dissent, Judge Wallace

argued that “[a] rational juror could infer from [the use of a gang moniker]

that Garcia intended to intimidate [the victim] and the store owner by let-

ting them know that they were dealing with an E.M.F. member on E.M.F.

turf, so that . . . a perceived challenger to the gang’s authority[ ] would

know not to intrude on E.M.F. turf in the future and so that the store owner

would submit to the gang’s dominance.” Id. at 1107 (Wallace, J., dissent-

BRICENO v. SCRIBNER 2099

Finally, even if we were to defer to the post-Garcia deci-

sions of the California Courts of Appeal, not all of those deci-

sions have adopted the expansive reading of § 186.22(b)

advanced by the State. In In re Frank S., for example, the

State sought gang enhancements based solely on an expert

witness’s testimony that the defendant was a gang member

and that his criminal conduct would benefit the gang. 141 Cal.

Rptr. 3d at 841. The Court of Appeal held this evidence insuf-

ficient, explaining that while “a trier of fact may rely on

expert testimony about gang culture and habits to reach a

finding on a gang allegation,” such testimony is insufficient

to establish “that a specific individual possessed a specific

intent.”6 Id. at 842; see also Killebrew, 126 Cal. Rptr. 2d at

886-87. In Briceno’s case, of course, the testimony of a gang

expert was all that the State presented to establish specific

intent. Thus, even if we were to defer to the state courts’ post-

Garcia interpretation of § 186.22(b), it is not at all clear that

a gang enhancement could be sustained in this case.

[9] We conclude that on the facts of this case, the Califor-

nia Supreme Court would not hold that there was sufficient

evidence to establish a “specific intent to promote, further, or

assist in any criminal conduct by gang members,” as required

by statute. See CAL. PENAL CODE § 186.22(b)(1). According to

the dissent, however, the California Supreme Court “has

already considered and implicitly rejected Briceno’s argument

regarding insufficiency of the evidence[.]” Diss. Op. at 2107.

ing). In Judge Wallace’s view, such evidence was sufficient to establish

specific intent. But neither the majority nor the dissenting opinions in Gar-

cia support sustaining a gang enhancement in the absence of any evidence

that the defendant intended to protect gang turf or facilitate gang opera-

tions.

6

The court expressly noted that it was publishing its decision to rein in

an overly expansive reading of § 186.22(b): “We publish this case to

emphasize that crimes may not be found to be gang-related based solely

upon a perpetrator’s criminal history and gang affiliation.” 46 Cal. Rptr.

3d at 841.

2100 BRICENO v. SCRIBNER

We disagree. In the state proceedings, both the State and Bri-

ceno filed petitions for review with the California Supreme

Court. The California Supreme Court granted only the State’s

petition for review. That petition related to a separate legal

question concerning California’s Three Strikes law. See Peo-

ple v. Briceno, 77 P.3d 3 (Cal. 2003); Petition for Review,

No. S117641, available at 2003 WL 23015606, at *2 (filed

July 28, 2003). None of the justices voted to grant Briceno’s

petition for review as to the question of whether “the commis-

sion of a crime with a fellow gang member, without more, [is]

sufficient to prove the crimes were gang related . . . .” See

Briceno, 77 P.3d at 3; Petition for Review, No. S117641,

available at 2003 WL 23015605, at *2. The briefing in the

case further demonstrates that the gang enhancements were

not before the California Supreme Court, as the parties

addressed only the Three Strikes issue. Concluding its opinion

on that issue, the court wrote: “In all other respects, the judg-

ment [of Briceno’s conviction] is affirmed.” Briceno, 99 P.3d

at 1015. Contrary to the reasoning of the dissent, it is unlikely

that the California Supreme Court, in a single boilerplate sen-

tence at the end of its opinion on an issue that it decided to

review at the behest of one party, intended to express an

authoritative view on an issue presented by another party that

it had in fact expressly decided not to review. See In re KF

Dairies, Inc. & Affiliates, 224 F.3d 922, 925 n.3 (9th Cir.

2000); cf. Trope v. Katz, 902 P.2d 259, 268 n.1 (Cal. 1995)

(“It is well established that our refusal to grant a hearing in

a particular case is to be given no weight insofar as it might

be deemed that we have acquiesced in the law as enunciated

in a published opinion of a Court of Appeal when such opin-

ion is in conflict with the law stated by this [C]ourt.” (internal

quotation marks omitted; emphasis in original)). We think

that the portion of the gang enhancement statute requiring

specific intent has a plain meaning, that our interpretation is

consistent with Garcia and Gardeley, and that the California

Supreme Court is likely to conclude that the mere fact that

Briceno committed the robberies with another gang member

BRICENO v. SCRIBNER 2101

is insufficient to support a gang enhancement under

§ 186.22(b).

We emphasize that Garcia does not displace the Jackson

standard as the proper lens with which we review state-court

decisions. This court’s decision in Garcia remains persuasive

because it analyzed the only California Supreme Court deci-

sion addressing § 186.22(b), i.e., Gardeley, 927 P.2d 713, to

guide this court’s interpretation of the elements of

§ 186.22(b). See Garcia, 395 F.3d at 1103-04. Moreover,

Garcia interpreted the substantive elements of § 186.22(b)

based on legal considerations that remain valid in this appeal,

namely, the California Supreme Court’s decision in Gardeley,

and the specific-intent language in § 186.22(b), which has not

been amended since Gardeley. See Garcia, 395 F.3d at 1103-

04. Indeed, the California Supreme Court has not, to date,

invalidated this court’s interpretation of § 186.22(b) or other-

wise disagreed with Garcia in any decision.

[10] We therefore hold that the appellate court’s conclusion

in this case represents an unreasonable application of the

Jackson standard, and we grant Briceno’s petition for a writ

of habeas corpus as to the sufficiency of the evidence.

CONCLUSION

In view of the foregoing, we affirm in part, reverse in part,

and remand for the District Court to grant the habeas petition

as to the imposition of the criminal street gang sentence

enhancements.

AFFIRMED in part; REVERSED in part; and

REMANDED.

Costs are awarded to Petitioner Briceno.

2102 BRICENO v. SCRIBNER

WARDLAW, Circuit Judge, concurring in part and dissenting

in part:

I concur in the opinion, except as to Part III of the analysis.

As to Part III, I must respectfully dissent, principally due to

the standards we must apply on habeas review.

In the words of the California Court of Appeal, Alberto

Briceno and Evaristo Landin “launched a grinchly crime wave

on Christmas Day 2000,” and were ultimately convicted of

four armed robberies, each committed within a three-hour

time span that day. Although there was evidence at trial that

the crimes were committed for personal gain (stealing money

to buy Christmas gifts), the jury found that a sentencing

enhancement was warranted based on the gang-related nature

of the crimes. Briceno’s sentence was enhanced under Cali-

fornia’s gang enhancement statute, which provides an

enhancement for “any person who is convicted of a felony

committed [(1)] for the benefit of, at the direction of, or in

association with any criminal street gang, [(2)] with the spe-

cific intent to promote, further, or assist in any criminal con-

duct by gang members.” Cal. Penal Code § 186.22(b)(1)

(emphasis added). The two prongs are considered separately.

See, e.g., People v. Morales, 5 Cal. Rptr. 3d 615, 632 (Ct.

App. 2003); see also Maj. Op. at 2092-93.1 The majority

holds that “there was not sufficient evidence to sustain the

conclusion that the robberies were committed with the spe-

cific intent to benefit a criminal street gang.” Maj. Op. at 2092.2

1

I agree with the majority that we need not decide whether Peter Vi’s

expert testimony was sufficient evidence from which a rational trier of fact

could find that the first element of the statute was proven beyond a reason-

able doubt. See Maj. Op. at 2094 (“[Vi’s] testimony might have helped to

establish the first element of the gang enhancement, i.e., that the crime

ultimately benefitted the gang in some way.”). Thus, the focus of our dis-

agreement is whether sufficient evidence supports the second, specific

intent, element of the statute.

2

The majority opinion intermittently conflates the analysis of the two

prongs, as does the Court of Appeal’s decision. The second prong requires

BRICENO v. SCRIBNER 2103

I disagree that the state court unreasonably interpreted its own

law in finding that the gang enhancement was supported by

sufficient evidence, and would affirm the district court.

Our task is to decide whether the state court’s adjudication

entailed an unreasonable application of Jackson v. Virginia,

which permits reversal only when “upon the record evidence

adduced at the trial[,] no rational trier of fact could have

found proof of guilt beyond a reasonable doubt.” 443 U.S.

307, 324 (1979); see 28 U.S.C. § 2254(d)(1); Juan H. v. Allen,

408 F.3d 1262, 1274 (9th Cir. 2005). In determining whether

sufficient evidence supports the state law statutory enhance-

ment, we are bound by “a state court’s interpretation of state

law.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005). If, as here,

there is no controlling “pronouncement by the highest court

of a state, the federal courts must 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 ex rel. Owen v. United States, 713

F.2d 1461, 1464 (9th Cir. 1983) (internal quotation marks

omitted).

The three directly relevant decisions by the California

Court of Appeal hold that to prove “specific intent to . . .

assist in any criminal conduct by gang members,” it is suffi-

cient to demonstrate that the “defendant intended to commit

[the crimes], that he intended to commit them in association

with [his accomplices], and that he knew that [his accom-

plices] were members of his gang.” Morales, 5 Cal. Rptr. 3d

at 632; see also People v. Villalobos, 51 Cal. Rptr. 3d 678,

687 (Ct. App. 2007) (“Commission of a crime in concert with

known gang members is substantial evidence which supports

proof not that defendant had specific intent to “benefit” the gang, but that

he had specific intent to “promote, further, or assist in any criminal con-

duct by gang members.” Compare Cal. Penal Code § 186.22(b)(1), with

Maj. Op. at 2092-93, 2097-98, and People v. Briceno, Nos. G029525,

G029607, 2003 WL 1710927, at *3 (Cal. Ct. App. Mar. 28, 2003).

2104 BRICENO v. SCRIBNER

the inference that the defendant acted with the specific intent

to promote, further or assist gang members in the commission

of the crime.”); People v. Romero, 43 Cal. Rptr. 3d 862, 866

(Ct. App. 2006) (“There was ample evidence that appellant

intended to commit a crime, that he intended to help [his

accomplice] commit a crime, and that he knew [his accom-

plice] was a member of his gang.”);3 cf. People v. Hill, 47 Cal.

Rptr. 3d 875, 877 (Ct. App. 2006) (finding specific intent to

enable gang-related activity when one gang member commits

a crime).4 Under this unequivocal state law, it follows that a

3

The majority attempts to assign significance to the factual circum-

stances of Villalobos and Romero, suggesting that to support a finding of

specific intent, it is necessary to find that the “defendant intended to pro-

tect gang turf or facilitate gang operations.” See Maj. Op. at 2097-98 &

n.5 (citing Villalobos, 51 Cal. Rptr. 3d at 681 (crime committed on gang

turf); Romero, 43 Cal. Rptr. 3d at 864-65 (retaliatory shooting on a rival

gang’s turf)). The presence of gang-related indicia may be relevant to the

determination of whether the crime was committed “for the benefit of, at

the direction of, or in association with” the gang. There is absolutely no

indication in either opinion, however, that the Court of Appeal relied on

the geographic location of the crime or the presence of gang-related indi-

cia to support its finding of specific intent. See Villalobos, 51 Cal. Rptr.

3d at 686-87; Romero, 43 Cal. Rptr. 3d at 865-66. Here, only the specific

intent element of the statute is at issue. Therefore, the lack of gang-related

indicia is not dispositive. Further, the majority concedes that Morales “did

not involve a specific indicia of gang-related criminal conduct,” but argues

that Briceno’s case falls into the “frolic and detour” exception. See Maj.

Op. at 2097-98 n.4 (citing Morales, 5 Cal. Rptr. 3d at 632 (“[I]t is con-

ceivable that several gang members could commit a crime together, yet be

on a frolic and detour unrelated to the gang.”)). This exception, however,

also applies only to the first prong of the statute. Morales suggested only

that it is possible that two gang members committing a crime together are

not necessarily acting “in association” with a gang. The “frolic and

detour” exception, as articulated in Morales, cannot underlie a finding that

a defendant lacked specific intent to “assist in any criminal conduct by

gang members.” Cal. Penal Code § 186.22(b).

4

The Court of Appeal in Hill found that specific intent was established

because the “defendant’s own criminal threat qualified as the gang-related

criminal activity”; therefore, by committing the crime, the defendant acted

with specific intent to further that activity. 47 Cal. Rptr. 3d at 877.

Because Hill concerns the commission of a crime by one gang member

BRICENO v. SCRIBNER 2105

rational jury could conclude beyond a reasonable doubt that

Briceno had the specific intent to assist in criminal conduct by

gang members because he intended to commit the four rob-

beries in the short time span using the same modus operandi,

intended to commit them in association with Landin, and

knew that Landin was also an active member of the Hard

Times criminal street gang. In other words, under the reason-

ing in Morales, Villalobos, and Romero, Landin’s crimes

qualify as “any criminal conduct by gang members,” and Bri-

ceno’s purposeful assistance to Landin in this criminal con-

duct qualifies as “specific intent to . . . assist” that criminal

conduct. Briceno does not dispute that he intended to commit

at least three of the crimes, that he intended to commit the

crimes in association with Landin, and that he knew Landin

was a gang member. Although the Court of Appeal also relied

upon Peter Vi’s expert testimony to conclude that there was

sufficient evidence to support the gang enhancement, that reli-

ance was unnecessary to its decision.5

The reasoning in Morales, Villalobos, and Romero controls

our decision because there is no “convincing evidence that the

highest court of the state would decide differently.” Owen,

713 F.2d at 1464 (internal quotation marks omitted). The

majority, however, declines to follow these decisions. Relying

on an erroneous interpretation of People v. Gardeley, 927

P.2d 713 (Cal. 1997), the one California Supreme Court pro-

acting alone, it is least relevant here, where two gang members acted in

concert. Therefore, we do not need to decide whether the Supreme Court

would agree that the commission of a crime by one gang member acting

alone, with the attendant mention of the gang association to the victim, is

sufficient to warrant application of the gang enhancement statute.

5

The majority correctly points out that Vi did not, and could not, pro-

vide an opinion regarding Briceno’s specific intent. Therefore, In re Frank

S., 46 Cal. Rptr. 3d 839, 842-44 (Ct. App. 2006), and People v. Killebrew,

126 Cal. Rptr. 2d 876, 886 (Ct. App. 2002), are inapposite because those

cases address the impropriety of expert testimony to establish specific

intent.

2106 BRICENO v. SCRIBNER

nouncement on gang enhancements, the majority concludes

that the California Supreme Court would decide the specific

intent question differently from the Court of Appeal. In

Gardeley, the Supreme Court found sufficient evidence to

support the sentencing enhancement when multiple gang

members acting together violently assaulted an intruder on

their turf in order “to frighten the residents of an area where

the gang members sell drugs, thereby securing the gang’s

drug-dealing stronghold.” Id. at 722. In the expert’s opinion,

this was a “ ‘classic’ example of gang-related activity.” Id.

The majority points out that Gardeley holds that the statute

enhances the sentence only when the defendant commits “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.” Id.

at 725 n.10. The majority’s point is correct but inapposite.

Gardeley stands for the proposition that the statute “does not

criminalize mere gang membership.” Id. at 725. It does not

support the contention that the majority purports to make—

that the Supreme Court would hold that the commission of a

crime with another gang member is insufficient to establish

specific intent to “assist in any criminal conduct by gang

members.”

Further, though intimidation of intruders to maintain turf

dominance may be a “classic” example of gang-related activ-

ity, there is no indication that gang-related activities occurring

outside the turf cannot serve as a basis for enhancement.

“Classic” gang-related activity is not “necessary to sustain

gang enhancements,” contrary to the majority’s contention.

See Maj. Op. at 2097. Thus, Gardeley does not present “con-

vincing evidence” that would allow us to reject the reasoning

of the California appellate courts. Owen, 713 F.2d at 1464.

In concluding that “on the facts of this case, the California

Supreme Court would not hold that there was sufficient evi-

dence to establish a ‘specific intent to promote, further, or

BRICENO v. SCRIBNER 2107

assist in any criminal conduct by gang members,’ ” Maj. Op.

at 2099, the majority ignores that the California Supreme

Court has already considered and implicitly rejected Bri-

ceno’s argument regarding insufficiency of the evidence to

support the gang enhancement. After the Court of Appeal

found that the record evidence was sufficient to support the

gang enhancement, Briceno, 2003 WL 1710927, at *3, Bri-

ceno petitioned for review of that decision to the California

Supreme Court, Defendant’s Petition for Review, Briceno, 77

P.3d 3 (No. S117641), 2003 WL 23015605, at *2. The

Supreme Court rejected Briceno’s petition, but granted the

State’s cross-petition on a separate and unrelated issue.

State’s Petition for Review, Briceno, 77 P.3d 3 (No.

S117641), 2003 WL 23015606. It reversed the Court of

Appeal only with respect to its finding that Briceno did not

“suffer[ ] a prior conviction for a serious felony.” People v.

Briceno, 99 P.3d 1007, 1008 (Cal. 2004). “In all other

respects, [the Supreme Court] affirm[ed] the judgment.” Id. at

1009.

The Supreme Court’s summary affirmance has limited, but

—for the purposes of this analysis—sufficient, precedential

value. The summary affirmance of the judgment indicates, at

most, agreement with the “precise issues framed and neces-

sarily decided in the case below.” Hoffman v. State Bar of

Cal., 6 Cal. Rptr. 3d 592, 604 n.10 (Ct. App. 2003); see also

Anderson v. Celebrezze, 460 U.S. 780, 784 n.5 (1983) (“We

have often recognized that the precedential effect of a sum-

mary affirmance extends no further than the precise issues

presented and necessarily decided by those actions. A sum-

mary disposition affirms only the judgment of the court

below, and no more may be read into our action than was

essential to sustain that judgment.” (internal quotation marks

omitted)). Thus, though “summary affirmances” are “a rather

slender reed on which to rest [a] decision,” Anderson, 460

U.S. at 784 n.5 (internal quotation marks omitted), even this

limited extent of agreement demonstrates that the Supreme

2108 BRICENO v. SCRIBNER

Court would find that the elements of section 186.22(b) were

met in Briceno’s case.

Further, the denial of Briceno’s petition by the Supreme

Court itself suggests that the Supreme Court would not dis-

agree with the Court of Appeal’s conclusion. An “order

[denying review of a] decision of the District Court of Appeal

may be taken as an approval of the conclusion there reached,

but not necessarily of all of the reasoning contained in that

opinion.” Di Genova v. State Bd. of Ed., 367 P.2d 865, 871

(Cal. 1962) (emphasis added) (internal quotation marks omit-

ted). Again, this limited approval is sufficient for our

purposes—establishing that the Supreme Court would agree

with the Court of Appeal’s decision that record evidence in

Briceno’s case sufficiently supports the two elements required

for the enhancement.

The majority correctly points out that the Supreme Court’s

“refusal to grant a hearing in a particular case is to be given

no weight insofar as it might be deemed that [it has] acqui-

esced in the law as enunciated in a published opinion of a

Court of Appeal when such opinion is in conflict with the law

as stated by [the Supreme C]ourt.” Trope v. Katz, 902 P.2d

259, 268 n.1 (Cal. 1995) (emphasis and internal quotation

marks omitted). I agree. No party should attempt to rely on

the Court of Appeal’s interpretation of the law in its unpub-

lished opinion to the extent it is contradicted by a published

holding of the Supreme Court. The Supreme Court does not

have to agree with the Court of Appeal’s interpretation of the

statute, however. All we must determine—and the denial of

review establishes this and no more—is that the Supreme

Court agreed with the Court of Appeal’s conclusion that suffi-

cient record evidence supports the enhancement as to Briceno.6

6

While the majority purports to strictly follow some Ninth Circuit pre-

cedent, like Garcia, it completely ignores other precedent, like Roman v.

Estelle, in which we held that “when the California Supreme Court denies

a petition for hearing without citation or comment, it will be assumed that

BRICENO v. SCRIBNER 2109

The Supreme Court’s agreement with the Court of Appeal in

this case, therefore, presents “convincing evidence” that it

would not disagree with the decisions of the California appel-

late courts.

The majority also purports to follow a Ninth Circuit deci-

sion that finds insufficient evidence for a gang enhancement

when “there was no testimony or other evidence to support a

rational inference that the robbery . . . was committed with the

intent to further other criminal activity” of the gang. Garcia

v. Carey, 395 F.3d 1099, 1104 (9th Cir. 2005). This reliance

is unjustified for three reasons.

First, in the habeas context, it is inappropriate to hold, as

the majority does, that “the California Court of Appeal’s anal-

ysis runs afoul of this court’s decision in Garcia v. Carey.”

Maj. Op. at 2094. The California state court was not bound by

Garcia in its interpretation of section 186.22(b); nor may we

analyze the state court’s opinion for compliance therewith.

We review the state court’s decision only to determine

whether it reasonably applied “clearly established Federal

law,” defined as “the governing legal principle or principles

set forth by the Supreme Court at the time the state court ren-

ders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72

(2003). Clearly, Garcia does not fit this definition. “While

circuit law may be persuasive authority for purposes of deter-

mining whether a state court decision is an unreasonable

application of Supreme Court law, only the Supreme Court’s

the state supreme court has been given a fair opportunity to review the

merits of the petitioner’s claim.” 917 F.2d 1505, 1506 (9th Cir. 1990)

(internal quotation marks omitted). There is no doubt that in Briceno’s

petition for review, the California Supreme Court was presented with the

exact question we are answering today and, thus, had the opportunity to

review the claim on the merits. See Defendant’s Petition for Review, Bri-

ceno, 77 P.3d 3 (No. S117641), 2003 WL 23015605, at *2 (“Is the com-

mission of a crime with a fellow gang member, without more, sufficient

to prove the crimes were gang related . . . ?”).

2110 BRICENO v. SCRIBNER

holdings are binding on the state courts and only those hold-

ings need be reasonably applied.” Clark v. Murphy, 331 F.3d

1062, 1069 (9th Cir. 2003) (citation and internal quotation

marks omitted). The applicable federal law is the Jackson

standard, and there is no indication that the state court unrea-

sonably held that a rational trier of fact could have found the

gang enhancement true beyond a reasonable doubt. Our rea-

soning in Garcia, then, is only persuasive authority that

should be rejected when, as here, it is contrary to the state’s

own interpretation of its statute. See Dimidowich v. Bell &

Howell, 803 F.2d 1473, 1482 (9th Cir. 1986).

Second, we could follow Garcia only if faced with “con-

vincing evidence” that allows us to set aside the contrary

appellate court decisions. Owen, 713 F.2d at 1464. As

explained above, we are not. In Owen, we were presented

with a previous Ninth Circuit decision, Commercial Union

Insurance Co. v. Ford Motor Co., 640 F.2d 210 (9th Cir.

1981), which interpreted California Civil Procedure Code sec-

tion 877. Subsequent California Court of Appeal’s decisions

articulated a different interpretation. We stated that “[o]ur

interpretation in Commercial Union was only binding in the

absence of any subsequent indication from the California

courts that our interpretation was incorrect.” Owen, 713 F.2d

at 1464. Here, California courts could not have indicated

more clearly that our interpretation of section 186.22(b) was

incorrect. Garcia has been explicitly disapproved in two sub-

sequent California Court of Appeal decisions. See Romero, 43

Cal. Rptr. 3d at 865 (declining to follow Garcia because “[b]y

its plain language, the statute requires a showing of specific

intent to promote, further, or assist in ‘any criminal conduct

by gang members,’ rather than other criminal conduct”); Hill,

47 Cal. Rptr. 3d at 877 (same). As explained above, there is

no “convincing evidence” that might lead us to disregard

these pronouncements; therefore, we cannot deem Garcia

controlling.

Third, Garcia is not directly applicable because Garcia did

not address the situation here: two gang members committing

BRICENO v. SCRIBNER 2111

a crime together. In Garcia, the defendant committed a liquor

store robbery with accomplices; it is unclear whether the

accomplices were fellow gang members. The State’s theory of

specific intent in that case was the fairly vague “facilitat[ion

of] other gang-related criminal operations within El Monte,”

Garcia, 395 F.3d at 1103, a theory that could rest only on the

statutory prohibition of “promot[ing] and further[ing] . . . any

criminal conduct by gang members,” Cal. Penal Code

§ 186.22(b). Here, by contrast, the State’s theory of specific

intent is predicated upon two gang members committing a

crime together—a theory that rests on the statutory prohibi-

tion against “assist[ing] in any criminal conduct by gang

members,” id., and a theory that Garcia did not directly

address. Therefore, there is no basis for holding, as the major-

ity does, that Garcia “expressly rejected the same interpreta-

tion of § 186.22(b) advanced by the State in this case.” Maj.

Op. at 2096.

The majority disregards the clear holding of the California

appellate courts that a criminal act intentionally committed

with another known gang member demonstrates specific

intent to assist in criminal conduct by gang members—a hold-

ing that sustains the state court’s finding of sufficient evi-

dence to support the gang enhancement in Briceno’s case. The

majority’s disregard of the Court of Appeal’s decisions is

unwarranted because there is no convincing evidence suggest-

ing that the Supreme Court would decide the question differ-

ently, and because the California Supreme Court has already

placed its stamp of approval on the Court of Appeal’s conclu-

sion in this case that, no matter the interpretation of the stat-

ute, Briceno’s crimes warrant the sentencing enhancement.

Because the Court of Appeal was not unreasonable in finding

that a rational trier of fact applying state law could find the

sentencing enhancement was proven beyond a reasonable

doubt, I must dissent.