Michael Herrera v. Kelly Harrington ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 31 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MICHAEL PETER HERRERA, No. 08-56837
Petitioner - Appellant, D.C. No. 2:08-cv-2410-JFW-CT
v.
MEMORANDUM*
KELLY HARRINGTON, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted October 13, 2011
Pasadena, California
Before: PREGERSON and BYBEE, Circuit Judges, and DAVIDSON**, Senior
District Judge.**
Petitioner Michael Peter Herrera, a California state prisoner, appeals the
district court’s denial of his 28 U.S.C. § 2254 habeas petition. We have
jurisdiction under 28 U.S.C. § 2253. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Glen H. Davidson, Senior District Judge for the U.S.
District Court for the Northern District of Mississippi, sitting by designation.
Herrera argues that the evidence presented at his state trial was insufficient
to permit the jury to find that the Santa Monica gang’s “primary activities”
involved a crime enumerated in California’s gang enhancement statute. See Cal.
Penal Code § 186.22; People v. Sengpadychith, 27 P.3d 739, 744 (Cal. 2001)
(holding that an enumerated crime is a gang’s “primary” activity when it is one of
the gang’s “‘chief’ or ‘principal’ occupations”).
In Jackson v. Virginia, 443 U.S. 307, 309 (1979), the Supreme Court held
that when the claim is made that a person has been convicted in state court upon
insufficient evidence, the inquiry is whether, “viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at
319. Moreover, because Herrera is a state prisoner challenging his conviction in
federal court, he must also show that the California state court was “objectively
unreasonable” in denying his sufficiency of the evidence claim. Juan H. v. Allen,
408 F.3d 1262, 1275 n.12 (9th Cir. 2005).
Here, the California state court reasonably applied Jackson because a
rational trier of fact could have found that the Santa Monica gang’s “primary
activities” included at least one of those listed in California Penal Code
§ 186.22(e).
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Next, Herrera argues that the state trial court erred by failing to instruct the
jury on the definition of “primary activities” as found in California’s model jury
instructions. The phrase “primary activities” is sufficiently clear such that an
average juror would understand its meaning. See United States v. Tirouda, 394
F.3d 683, 688–89 (9th Cir. 2005) (“No prejudice results from a district court’s
failure to define a concept ‘within the comprehension of the average juror.’”
(quoting United States v. Dixon, 201 F.3d 1223, 1231 (9th Cir. 2000)). The
California Court of Appeal therefore did not unreasonably apply Supreme Court
precedent in denying Herrera’s challenge to the jury instructions.
AFFIRMED.
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