Felix MacDonald v. Anthony Hedgpeth , 907 F.3d 1212 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FELIX ESTUARDO MAQUIZ No. 16-55240
MACDONALD,
Petitioner-Appellant, D.C. No.
5:11-cv-00970-
v. JAK-PJW
ANTHONY HEDGPETH, Warden,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted March 8, 2018
Pasadena, California
Filed November 5, 2018
Before: Diarmuid F. O’Scannlain * and Jacqueline H.
Nguyen, Circuit Judges, and Michael H. Simon, **
District Judge.
*
Judge O’Scannlain was drawn by lot to replace Judge Reinhardt.
Ninth Circuit General Order 3.2.h. Judge O’Scannlain has read the
briefs, reviewed the record, and listened to the tape of oral argument held
on March 8, 2018.
**
The Honorable Michael H. Simon, United States District Judge
for the District of Oregon, sitting by designation.
2 MAQUIZ MACDONALD V. HEDGPETH
Opinion by Judge Simon;
Dissent by Judge O’Scannlain
SUMMARY ***
Habeas Corpus
The panel reversed the district court’s denial of a habeas
corpus petition brought by California state prisoner Felix
Estuardo Maquiz MacDonald (Maquiz), and remanded
regarding imposition of a gang enhancement pursuant to
California Penal Code § 186.22(b)(1) to Maquiz’s sentence
for a robbery conviction.
The panel held that the state trial court’s admission of
opinion testimony from a law enforcement expert on street
gangs, who described for the jury the potential benefits that
a street gang might receive when a member commits a
robbery by himself, did not deny Maquiz a fundamentally
fair trial and due process, and was not contrary to, or an
unreasonable application of, Supreme Court precedent.
The panel held that such expert testimony was, however,
insufficient to support Maquiz’s ten-year gang enhancement
to his sentence for a robbery that he committed alone. The
panel held that the state court’s decision was an
unreasonable application of Jackson v. Virginia, 443 U.S.
307 (1979), and no rational trier of fact could have found this
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MAQUIZ MACDONALD V. HEDGPETH 3
expert testimony by itself sufficient to prove the elements of
the robbery gang enhancement beyond a reasonable doubt.
Dissenting, Judge O’Scannlain wrote that despite the
Supreme Court’s repeated admonitions to this Circuit that
the Antiterrorism and Effective Death Penalty Act means
what it says, the majority treats this appeal just like another
State court direct review of a criminal conviction and
erroneously orders grant of the writ based on California law,
rather than Federal law.
COUNSEL
Michael T. Drake (argued), Research and Writing Attorney;
Hilary L. Potashner, Federal Public Defender; Office of the
Federal Public Defender, Los Angeles, California; for
Petitioner-Appellant.
Daniel Rogers (argued), Supervising Deputy Attorney
General; Kevin Vienna, Deputy Attorney General; Julie L.
Garland, Senior Assistant Attorney General; Xavier Becerra,
Attorney General; Office of the Attorney General, San
Diego, California; for Respondent-Appellee.
4 MAQUIZ MACDONALD V. HEDGPETH
OPINION
SIMON, District Judge:
I. INTRODUCTION
Felix Estuardo Maquiz MacDonald (“Maquiz”) 1 appeals
the district court’s denial of his petition for writ of habeas
corpus. We have jurisdiction under 28 U.S.C. §§ 1291 and
2253(a). We review de novo a district court’s denial of a writ
of habeas corpus. Poyson v. Ryan, 879 F.3d 875, 887 (9th
Cir. 2018).
In this appeal, we address two questions. First, we
consider whether the state trial court’s admission in evidence
of opinion testimony from a law enforcement expert on
street gangs, who described for the jury the potential benefits
that a street gang might receive when a member commits a
robbery by himself, denied Maquiz a fundamentally fair trial
and due process under the U.S. Constitution. We conclude
that it did not. Second, we consider whether such expert
testimony by itself was sufficient to support Maquiz’s ten-
year gang enhancement to his sentence for a robbery that he
committed alone in 2001. We conclude that it was not. We
hold that the state court’s decision was an unreasonable
application of Jackson v. Virginia, and no rational trier of
fact could have found this expert testimony by itself
sufficient to prove the elements of the 2001 robbery gang
enhancement beyond a reasonable doubt. 443 U.S. 307, 319
(1979) (Stevens, J., concurring). Because there was no other
evidence presented at trial to support the gang sentencing
enhancement for the 2001 robbery, we reverse the district
1
All parties below refer to Petitioner-Appellant as “Maquiz,” rather
than “MacDonald.” We continue that practice.
MAQUIZ MACDONALD V. HEDGPETH 5
court’s denial of the petition for habeas relief and remand for
resentencing by the state trial court.
II. BACKGROUND
A. Facts
Early one morning in June 2001, an adult male was using
a pay phone outside a restaurant in Perris, California. Two
friends of that person were sitting on a bench nearby, waiting
for the call to end. Maquiz approached the person on the pay
phone from behind. Maquiz held a silver handgun in one
hand and kept his other hand over his face. He also wore a
knitted cap pulled down to his eyes, further concealing his
identity. When the friends realized what was happening, they
ran to a gas station and called the police. Maquiz told the
person at the pay phone to give Maquiz money or he would
shoot. Maquiz searched through the robbery victim’s
pockets and took the victim’s wallet. Maquiz then told the
victim to run or else Maquiz would kill him. The victim ran
to the same gas station and found his friends.
Within minutes, police arrested Maquiz in the vicinity,
based on the description given by the victim and his friends.
When Maquiz first saw the police, he threw something in the
bushes. The police later found a loaded silver .22-caliber
handgun. Maquiz had on his person eight .22-caliber bullets,
which matched the bullets from the gun found in the bushes.
Maquiz also had $70. He did not have the victim’s wallet.
The victim and his friends identified Maquiz.
B. Trial
In January 2002, Maquiz went to trial before a California
state court jury. The prosecution charged Maquiz with three
counts of second degree robbery. One count related to the
6 MAQUIZ MACDONALD V. HEDGPETH
June 2001 robbery that Maquiz committed alone, and two
counts related to a robbery that Maquiz committed in May
1999 with other gang members. The prosecution also
charged Maquiz with one count of unlawfully carrying a
concealed weapon and one count of showing false
identification to a police officer. In addition, the prosecution
sought gang sentencing enhancements for each of the three
robbery counts, a personal firearm use sentencing
enhancement for the 2001 robbery, and a gang/vicarious
firearm use sentencing enhancement for each of the two
1999 robbery counts. The court asked the jury to determine
whether certain allegations relating to the sentencing
enhancements were true.
Only the gang sentencing enhancement for the 2001
robbery is at issue in this appeal. California Penal Code
(“CPC”) § 186.22(b)(1) provides for additional punishment
for “any person who is convicted of a felony committed for
the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members.”
For violent felonies, such as robbery, the statute prescribes
an additional term of ten years imprisonment as a gang
penalty enhancement. CPC § 186.22(b)(1)(C).
The jury convicted Maquiz on all five counts: three
counts of second degree robbery, one count of carrying a
concealed weapon, and one count of showing false
identification to a police officer. The jury also found true the
allegations that Maquiz committed counts 1 through 4 2 for
2
Count 1 was based on the 2001 robbery that Maquiz committed
alone. Counts 2 and 3 were based on the 1999 robbery that Maquiz
committed with other gang members. Count 4 was based on the
MAQUIZ MACDONALD V. HEDGPETH 7
the benefit of a street gang (the gang enhancement), that
Maquiz personally used a firearm in count 1 (the personal
firearm use enhancement), and that a principal other than
Maquiz used a firearm in counts 2 and 3 (the gang/vicarious
firearm use enhancement).
C. After Trial
Maquiz appealed. After several state court appeals, the
trial court resentenced Maquiz for the second time in
November 2005. For count 1, Maquiz received a total
sentence of twenty-three years imprisonment, consisting of
three years for second degree robbery, plus a consecutive
term of ten years for personally using a firearm in the
commission of a felony, plus a consecutive term of ten years
for the gang enhancement. For counts 2 and 3 (related to the
1999 robbery that Maquiz committed with other gang
members), the trial court included a gang enhancement of
three years each for counts 2 and 3 and ordered that Maquiz
serve portions of his sentence for those crimes concurrently
with his sentence imposed in count 1. For the charge of
unlawfully carrying a concealed firearm (count 4), the court
sentenced Maquiz to two years for the underlying offense
plus a consecutive term of three years as a gang
enhancement. The court stayed all three three-year gang
sentencing enhancements imposed in counts 2, 3, and 4.
Maquiz did not directly appeal his final sentence. He did,
however, file pro se a habeas petition in state court, alleging
five grounds for relief, including the two certified in this
appeal. The California Court of Appeal denied Maquiz’s
habeas petition without comment. The California Supreme
allegation that Maquiz carried a concealed weapon during the 2001
robbery.
8 MAQUIZ MACDONALD V. HEDGPETH
Court granted review and issued an order directing the Court
of Appeal to vacate its earlier order on other grounds. The
California Supreme Court did not, however, address the
Court of Appeal’s denial of Maquiz’s claims about improper
admission of gang expert testimony or insufficient evidence
to support the gang penalty enhancement. In June 2011,
Maquiz filed his federal habeas petition.
The district court denied that petition, and this appeal
followed. We issued a certificate of appealability on two
issues. First, we asked whether the state trial court violated
Maquiz’s rights to a fair trial and due process under the U.S.
Constitution by permitting a law enforcement expert on
street gangs to testify that in his opinion Maquiz committed
the 2001 robbery for the benefit of a gang. Second, we asked
whether there was sufficient evidence in the trial record to
support the gang sentencing enhancement for the 2001
robbery.
III. HABEAS STANDARDS
A petitioner may obtain relief on federal habeas claims
that have been “adjudicated on the merits in state court
proceedings” only if the state court’s adjudication resulted
in a decision (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or
(2) “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). When a petitioner
presents claims to a state court and relief is denied, “it may
be presumed that the state court adjudicated the claim[s] on
the merits in the absence of any indication or state-law
procedural principles to the contrary.” Harrington v. Richter,
562 U.S. 86, 99 (2011). “Where a state court’s decision is
unaccompanied by an explanation, the habeas petitioner’s
MAQUIZ MACDONALD V. HEDGPETH 9
burden still must be met by showing there was no reasonable
basis for the state court to deny relief.” Id. at 98.
IV. ADMISSIBILITY OF EVIDENCE
At trial, a deputy sheriff testified as an expert witness on
street gangs. The deputy told the jury that he was familiar
with the Perres Mara Villa (“PMV”) gang and that Maquiz
was an active member of that gang. Maquiz argues that the
deputy’s testimony was equivalent to an opinion that the
gang enhancement allegations were true.
Federal habeas courts generally do not review questions
of state evidentiary law. See Estelle v. McGuire, 502 U.S.
62, 67–68 (1991). Evidence erroneously admitted warrants
habeas relief when it results in the denial of due process
under the U.S. Constitution. Id. at 68. “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.’” Moses v. Payne, 555 F.3d 742, 761 (9th Cir.
2009) (quoting United States v. Lockett, 919 F.2d 585, 590
(9th Cir. 1990)).
In Briceno v. Scribner, 555 F.3d 1069 (9th Cir. 2009),
we addressed a nearly identical challenge. We noted that
“[f]ederal habeas courts do not review questions of state
evidentiary law” and concluded that because “there is no
clearly established constitutional right to be free of an expert
opinion on an ultimate issue . . . the admission of the opinion
testimony of [the gang expert] cannot be said to be contrary
to, or an unreasonable application of, Supreme Court
precedent.” Id. at 1077–78 (internal citation omitted).
The deputy’s testimony did not violate Maquiz’s right to
due process. The state trial court’s admission in evidence of
10 MAQUIZ MACDONALD V. HEDGPETH
the deputy’s testimony also was not contrary to, or an
unreasonable application of, Supreme Court precedent. The
district court therefore did not err in denying this aspect of
Maquiz’s habeas petition.
V. SUFFICIENCY OF EVIDENCE
A. Jackson and AEDPA
Maquiz “faces a heavy burden when challenging the
sufficiency of the evidence used to obtain a state conviction
on federal due process grounds.” Juan H. v. Allen, 408 F.3d
1262, 1274 (9th Cir. 2005). First, he must meet the burden
under Jackson v. Virginia of showing that “whether, after
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.”
443 U.S. 307, 319 (1979) (Stevens, J., concurring) (emphasis
in original). Second, after the passage of the Antiterrorism
and Effective Death Penalty Act of 1996, Pub. L. No. 104-
132, 110 Stat. 1214 (“AEDPA”), the standards of Jackson
are applied “with an additional layer of deference,” requiring
the federal court to determine “whether the decision of the
[state court] reflected an ‘unreasonable application of’
Jackson . . . to the facts of this case.” Juan H., 408 F.3d at
1274–75; see also Bruce v. Terhune, 376 F.3d 950, 960 (9th
Cir. 2004) (O’Scannlain, J., concurring). In considering a
challenge to the sufficiency of the evidence, however,
“[s]peculation and conjecture cannot take the place of
reasonable inferences and evidence.” Juan H., 408 F.3d at
1279; see also Walters v. Maass, 45 F.3d 1355, 1358 (9th
Cir. 1995) (noting that “mere suspicion or speculation
cannot be the basis for the creation of logical inferences”
(internal quotation marks omitted)).
MAQUIZ MACDONALD V. HEDGPETH 11
No California court supplied any explanation for
rejecting Maquiz’s claim of insufficiency of the evidence.
Maquiz, however, did not raise this issue in his first direct
appeal, in which the California Court of Appeal addressed
all of his claims in a written decision. Instead, Maquiz first
presented this issue in his state habeas petition, which the
California Court of Appeal summarily rejected. Thus, we
must determine whether there is any reasonable basis in the
record on which the California Court of Appeal could have
denied Maquiz’s claim of insufficient evidence for the gang
enhancement for the 2001 robbery. Harrington, 562 U.S. at
98.
“Insufficient evidence claims are reviewed by looking at
the elements of the offense under state law.” Emery v. Clark,
643 F.3d 1210, 1214 (9th Cir. 2011); see also Bradshaw v.
Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held
that a state court’s interpretation of state law, including one
announced on direct appeal of the challenged conviction,
binds a federal court sitting in habeas corpus.”); Jackson,
443 U.S. at 324 n.16 (stating that “the standard must be
applied with explicit reference to the substantive elements of
the criminal offense as defined by state law”).
B. The California Gang Sentencing Enhancement
The gang sentencing enhancement under CPC
§ 186.22(b)(1) may be applied only if the prosecution proves
beyond a reasonable doubt that (1) the defendant committed
a felony “for the benefit of, at the direction of, or in
association with any criminal street gang” and (2) the
defendant did so “with the specific intent to promote, further,
or assist in any criminal conduct by gang members.” The
first prong is called the “gang related” requirement. The
second is called the “specific intent” requirement.
12 MAQUIZ MACDONALD V. HEDGPETH
When defining the contours of the first prong, the
California Supreme Court has cautioned that “[n]ot every
crime committed by gang members is related to a gang.”
People v. Albillar, 244 P.3d 1062, 1071 (Cal. 2010). The
gang enhancement applies only to crimes that are “gang
related.” Id. “Mere active and knowing participation in a
criminal street gang is not a crime.” People v. Rodriguez,
290 P.3d 1143, 1147 (Cal. 2012) (discussing CPC
§ 186.22(a)); see also People v. Perez, 18 Cal. App. 5th 598,
607 (Cal. Ct. App. 2017) (“Nor can a crime be found to be
gang related simply because the perpetrator is a gang
member with a criminal history.”). “The gang enhancement
cannot be sustained based solely on defendant’s status as a
member of the gang and his subsequent commission of
crimes.” People v. Ochoa, 179 Cal. App. 4th 650, 663 (Cal.
Ct. App. 2009); see also Perez, 18 Cal. App. 5th at 607
(noting that “[a]lthough a lone actor is subject to a gang
enhancement, merely belonging to a gang at the time of the
commission of the charged conduct” cannot support the gang
enhancement). To hold otherwise would mean that the “gang
enhancement would be used merely to punish gang
membership.” People v. Rios, 222 Cal. App. 4th 542, 574
(Cal. Ct. App. 2013).
California courts find the elements of the gang
enhancement satisfied when, for example, defendants
commit crimes with gang members, wear gang colors during
a crime, victimize rival gang members or others potentially
threatening gang turf, bring objects with potential gang
symbols to the crime, and have tattoos potentially
symbolizing the gang. See, e.g., Albillar, 244 P.3d at 1071–
74; People v. Livingston, 274 P.3d 1132, 1170–72 (Cal.
2012); People v. Ewing, 244 Cal. App. 4th 359, 379–81 (Cal.
Ct. App. 2016).
MAQUIZ MACDONALD V. HEDGPETH 13
C. Deputy Brewer’s Testimony
Maquiz argues that there was insufficient evidence
presented at trial for any rational juror to find either the
“gang related” requirement or the “specific intent”
requirement for the 2001 robbery. Maquiz also contends that
for the California Court of Appeal to have concluded
otherwise was an unreasonable application of Jackson.
Defendant-Appellee concedes that Maquiz did not commit
the 2001 robbery at the direction of or even in association
with the PMV gang or any of its members. Defendant-
Appellee argues, however, that there was still sufficient
evidence in the form of Deputy Brewer’s expert testimony
to establish that Maquiz committed the 2001 robbery for the
benefit of the PMV gang.
The only evidence relevant to the gang enhancement
came from Deputy Sheriff Brewer, who testified both as a
fact witness and as an expert. Deputy Brewer described the
common name for the PMV gang and the symbols and signs
used by that gang. He also testified about his personal
interactions with Maquiz and other PMV gang members.
Deputy Brewer showed the jury photographs depicting
Maquiz with other known PMV gang members at a funeral.
The deputy also presented to the jury field-interview cards,
involving other law enforcement interactions with Maquiz.
The deputy, testifying as an expert witness, told the jury that,
in his opinion, Maquiz was an active member of the PMV
gang. The deputy added that PMV’s primary activities
included homicide, robbery, carjacking, and intimidation of
witnesses and victims.
The prosecutor asked the deputy whether he was familiar
with CPC § 186.22. Deputy Brewer told the jury that he was.
The prosecutor asked the deputy to describe some of the
elements required under this statute for the gang sentencing
14 MAQUIZ MACDONALD V. HEDGPETH
enhancement to apply. The deputy explained that the statute
required evidence of a “pattern of criminal activity.” The
deputy told the jury facts about specific crimes committed
by PMV gang members other than Maquiz.
The prosecutor also asked the deputy for his opinion
about how a crime committed by a gang member acting
alone might still benefit the gang. The deputy testified:
A. A person acting alone, the benefit of
that or where that can benefit the gang, the
individual is a gang member. He wants to
further his respect with other gang members.
And when we talk about respect among gang
members, basically that’s like a fear and
intimidation factor. The more feared you are,
the more intimidating you are, the more
respect you obtain. It’s not the respect that we
would normally see in layman terms.
Q. Let me stop you. What about within
the community itself, outside of the gang?
A. Right. You want to—you want—that
fear and intimidation is not only within the
gang or—you know, the respect that you gain
in the gang, but the fear and intimidation goes
out into the community. I mentioned it on the
graffiti. You want the people to know you’re
the ones that run that area and you don’t want
to mess with Perres Mara Villa, you know,
because we’re the ones that are in charge of
this area. This is our turf.
MAQUIZ MACDONALD V. HEDGPETH 15
And beyond just the fear and intimidation
that it’s creating, the fruits of the crime.
Whatever money might be obtained or
property or anything, that—that’s not
necessarily only maintained by that
individual. He’s going to share those things
with other members of the gang. Maybe the
individual owns a vehicle and uses that
money to pay for gas or maintenance on his
vehicle, and then his vehicle is used by the
gang in the commission of other crimes or in
their daily travels and stuff. It’s a bigger
picture. It’s not just that one moment that
individual’s involved in that.
In addition, the prosecutor asked the deputy for his
opinion on whether Maquiz’s actions in the June 2001
robbery “constitute[d] some sort of benefit for the Perres
Mara Villa gang?” The deputy responded, “Yes, they did.”
The deputy explained that the gang benefitted from the 2001
robbery because the robbery “furthered knowledge of, fear
and intimidation factor for the gang and for the individual as
a member of that gang. But also the benefit of anything that
was obtained through the crime, the gang could benefit from
that.” The deputy also opined that Maquiz would “probably
have a tendency to talk about” the robbery and that “if [other
gang members] were present” while Maquiz still had
robbery proceeds, he would then either share the money
taken or what he purchased with that money. The deputy
added, “[m]aybe he buys something the gang can use in the
future or maintain something they already have with that
money.”
16 MAQUIZ MACDONALD V. HEDGPETH
D. Analysis of the Gang Related Prong
Deputy Brewer’s testimony alone is not sufficient to
sustain the gang related prong. Although Jackson holds that
a court must presume that the trier of fact resolved all
reasonable inferences in favor of the prosecution “even if it
does not affirmatively appear in the record,” Jackson,
443 U.S. at 326, the inferences must nevertheless be
supported by record evidence and must be reasonable.
Here, the jury heard that other gang members committed
a robbery in PMV territory at one of at least two (if not more)
AM/PM locations in Perris. Without any additional
evidence, we cannot presume that Marquiz robbed the same
location three months later. We also cannot assume that the
jury knew or inferred where PMV’s territory was located,
especially in light of Deputy Brewer’s acknowledgement
that the gang’s territory shifted due to a turf war with another
gang.
The prosecution also did not present any evidence that
Maquiz displayed any gang signs, symbols, or colors during
the 2001 robbery, made any threats or comments about
gangs during the 2001 robbery, or that the victim of or
witnesses to the 2001 robbery were even aware that Maquiz
was a gang member. The prosecution also offered no
evidence that Maquiz met with any gang members either
shortly before or shortly after the 2001 robbery, that Maquiz
discussed the 2001 robbery with any gang members, or that
Maquiz shared any proceeds from the 2001 robbery with any
gang members.
As for how the 2001 robbery may have benefitted the
gang, Deputy Brewer said only: (1) inside the gang, the
robbery would engender fear of and respect for Maquiz;
(2) outside the gang, the robbery would engender fear of and
MAQUIZ MACDONALD V. HEDGPETH 17
respect for the gang generally; and (3) because Maquiz
would “probably have a tendency to talk about” the robbery
within the gang about the robbery, he also likely would share
the proceeds from the robbery with the gang, or at least
spend a portion of the proceeds on something shared with
the gang. In these ways, according to the deputy, the gang
would benefit from the robbery that Maquiz committed
alone in 2001.
The evidence presented at trial showed only that Maquiz
committed the 2001 robbery alone, without wearing or
displaying gang symbols, signs, or colors. There also was no
evidence that the victim even knew that Maquiz was a gang
member. Maquiz’s decisions to hold his hand over his face
and to wear a knitted cap pulled down to his eyes indicate a
desire to conceal his face and remain anonymous. An
anonymous perpetrator’s crime has no effect on a gang’s
reputation, and the perpetrator’s gang affiliation, if any,
remains a mystery. Thus, no evidence would permit a
reasonable inference that Maquiz performed the robbery to
secure any particular territory for the gang or to enhance the
gang’s reputation.
There also was no evidence that Maquiz discussed the
robbery with any gang member, that he shared the proceeds
of the crime with any gang member, or that he had even
committed solo crimes before and then shared the proceeds
of those earlier crimes with gang members. The deputy’s
opinions and conclusions were “purely conclusory and
factually unsupported.” Perez, 18 Cal. App. 5th at 608.
There was no fact-specific analysis.
Testimony of this kind from a gang expert, even when
coupled with personal knowledge that a defendant is a gang
member, is insufficient under CPC § 186.22(b)(1) to prove
that a particular crime committed alone was “gang related.”
18 MAQUIZ MACDONALD V. HEDGPETH
To hold otherwise would turn the statute into a penalty
enhancement simply for committing a crime while being a
gang member. That, however, is an impermissible
construction of the statute. See, e.g., Albillar, 244 P.3d at
1071; Rodriguez, 290 P.3d at 1147; Perez, 18 Cal. App. 5th
at 607; see also Garcia v. Carey, 395 F.3d 1099 (9th Cir.
2005) (affirming district court’s grant of sentencing relief in
habeas case when evidence of specific intent to benefit gang
was insufficient to support gang sentencing enhancement
under either Jackson or with additional deference afforded
state courts under AEDPA). Federal courts do not allow such
suspicion and speculation to support a jury verdict, even
under the dual layers of judicial deference accorded to
Jackson claims in federal habeas proceedings. See Juan H.,
408 F.3d at 1279; Walters, 45 F.3d at 1358; see also
Briceno, 555 F.3d at 1078–83 (finding that without flashing
gang signs or some other indication of gang membership or
a connection between the robbery and the gang, there was
insufficient evidence to support the gang enhancement). 3
E. Analysis of the Specific Intent Prong
For the same reasons, the evidence is also insufficient to
support the second prong of the gang enhancement,
requiring specific intent. The trial record lacks any evidence
showing that Maquiz had the specific intent to commit the
2001 robbery “to promote, further, or assist in any criminal
conduct by gang members.” CPC § 186.22(b)(1). Maquiz
actively sought to hide his identity during the crime and the
3
Some of Briceno’s discussion relating to the specific intent prong
does not survive Albillar, because the crime in Briceno was committed
by more than one gang member and Albillar holds that specific intent
can be inferred if the crime is committed with fellow gang members.
That aspect of Albillar, however, does not apply in this case because
Maquiz acted alone.
MAQUIZ MACDONALD V. HEDGPETH 19
record is devoid of any evidence at the 2001 crime tying it
to the gang. As discussed above, no rational juror could have
found that the 2001 crime took place in PMV territory.
The dissent relies on PMV graffiti in the area to suggest
that Maquiz intended for the robbery to be connected to the
gang. Even under the deferential review standard of
Jackson, that inference is unreasonable and suggests that
Maquiz’s gang membership alone would be sufficient to
show specific intent, despite Maquiz’s effort to hide his
identity (and hence his gang affiliation) during the crime.
F. Conclusory Expert Testimony Alone Is Insufficient
Consistent with our analysis that the evidence here was
insufficient to support the gang enhancement under clearly
established federal law under Jackson 4, in People v. Perez,
the California Court of Appeal found similar expert
testimony insufficient to support the gang enhancement
when there was no evidence the attempted murders took
place in gang territory, resulted from gang retaliation, or
benefitted the gang’s reputation. 18 Cal. App. 5th at 601–10
(Cal. Ct. App. 2017). The Perez court noted that typical
evidence connecting the crimes to gangs was absent, namely
“gang colors, gang clothing, gang accruements, gang signs,
4
Despite the dissent’s contention that we rely on analogous state
court decisions and Ninth Circuit precedent, we provide these cases
simply to demonstrate that they are in agreement with our federal
analysis. We do not rely on any California decisions when evaluating
the sufficiency of the evidence. Instead, we rely on California decisions
solely to define the elements of the gang enhancement, as Jackson
requires. 443 U.S. 324 n. 16 (“[T]he standard must be applied with
explicit reference to the substantive elements of the criminal offense as
defined by state law.”) (emphasis added). We agree with the dissent that
the sufficiency of the evidence is purely a question of federal law.
20 MAQUIZ MACDONALD V. HEDGPETH
gang epithets, [and] help by other gang members.” Id. at
613–14; accord People v. Franklin, 248 Cal. App. 4th 938,
943–44 (Cal. Ct. App. 2016) (finding expert testimony
insufficient when crimes occurred in and out of gang
territory and no gang members were aware of the assault);
People v. Lancaster, 2011 WL 1680392, at *4–*5 (Cal. Ct.
App. May 5, 2011) (unpublished) (“We join the growing
chorus of appellate decisions that have critically reviewed
the perfunctory testimony of gang experts and found it
insufficient to support the gang enhancement. . . . It is not
our task to fill in the gaping evidentiary holes that the
prosecution has sidestepped by means of boilerplate ‘gang
expert’ testimony.”). As we previously found, “the
testimony of a gang expert, without more, is ‘insufficient to
find an offense gang related.’” Johnson v. Montgomery,
899 F.3d 1052, 1058 (9th Cir. 2018) (quoting People v.
Ochoa, 179 Cal. App. 4th at 657).
VI. CONCLUSION
We conclude, after a deferential review, that no rational
juror could have found from the evidence presented at trial
that all allegations required for the gang sentencing
enhancement were true for Maquiz’s 2001 robbery. Thus,
there was no basis and therefore also no reasonable basis on
which the California courts could have rejected Maquiz’s
argument that the gang sentencing enhancement for count 1
was unsupported by sufficient evidence. His petition for
habeas relief should have been granted on this issue, and the
California state trial court should resentence Maquiz
consistent with this decision. For these reasons, we reverse
and remand to the district court to grant the claim in the
habeas petition regarding the imposition of the gang
sentencing enhancement for count 1.
REVERSED AND REMANDED.
O’SCANNLAIN, Circuit Judge, dissenting:
The Antiterrorism and Effective Death Penalty Act
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, empowers
our court to order grant of a writ of habeas corpus in this case
only if the California courts reached “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.” 28 U.S.C. § 2254(d)
(emphasis added). Yet despite the Supreme Court’s repeated
admonitions to this Circuit that AEDPA means what it says,
see, e.g., Kernan v. Cuero, 138 S. Ct. 4, 9 (2017) (per
curiam), the majority treats this appeal just like another State
court direct review of a criminal conviction and erroneously,
in my view, orders grant of the writ based on California law,
rather than Federal law.
Respectfully, I must dissent.
I
Let me begin by restating the relevant facts. Felix
Maquiz 1 was convicted of three counts of robbery in a
California Superior Court in 2002: two counts from a 1999
robbery and one count from a 2001 robbery.
In May of 1999, Maquiz robbed an “AM/PM” mini-
market in Perris, California. Two employees working in the
store at the time, Betty Walton and José Lopez, reported that
Maquiz pointed a shotgun at Lopez, demanded the cash from
the register, and fled the store. Walton followed Maquiz
outside and saw him get into the passenger side of a maroon
1
As does the majority, I refer to the Appellant as “Maquiz,” rather
than his legal last name, “MacDonald,” because all parties refer to him
as Maquiz.
22 MAQUIZ MACDONALD V. HEDGPETH
vehicle, which then drove away. Two days later, police
officers saw a maroon vehicle chasing a car down the street
in Perris, and the officers pulled the maroon vehicle over.
Inside was Maquiz and his friend, Ricardo Hoyos, along
with a shotgun fitting the description of the one used in the
mini-market robbery. Officers arrested Maquiz and Hoyos
for robbing the mini-market and attempting to intimidate a
witness in the car they were chasing.
In June of 2001, Maquiz robbed Kenneth Cheney at a
pay phone outside of Jenny’s Restaurant in Perris. With his
hand held over his face, Maquiz approached Cheney from
the rear with a gun and demanded that Cheney hand over his
wallet. After receiving the wallet, Maquiz told Cheney to
run home or he would kill him. Cheney ran to a nearby gas
station, where two witnesses who had called the police were
waiting. The witnesses described Maquiz as wearing a puffy
black jacket, a dark beanie pulled down to his eyebrows, and
dark slacks. A short while later, police officers discovered
Maquiz a few blocks away from the restaurant and placed
him under arrest for the robbery.
Maquiz was charged with three counts of robbery—two
counts from 1999 (Lopez and Walton) and one count from
2001 (Cheney)—along with several other crimes. The
prosecution also sought sentence enhancements for each
robbery under California Penal Code § 186.22(b)(1), which
provides for a ten-year enhancement when “any person . . .
is convicted of a felony committed for the benefit of, at the
direction of, or in association with any criminal street gang,
with the specific intent to promote, further, or assist in any
criminal conduct by gang members.” Thus, whether Maquiz
intended to benefit the criminal activities of a gang was a
critical issue at trial.
MAQUIZ MACDONALD V. HEDGPETH 23
The State’s primary source of evidence to support the
gang enhancements was testimony from Deputy Eric
Brewer, a member of the Perris Police Department’s gang
unit. Deputy Brewer, having received hundreds of hours of
training on gang activity over his career, testified as an
expert witness on gang activity. He testified that both
Maquiz and Hoyos were members of the Perres Mara Villa
(PMV), the “largest” and “primary Hispanic gang in the city
of Perris,” which focused primarily on robberies, homicides,
witness intimidation, carjacking, and other crimes. Hoyos
and Maquiz were “active” members of PMV, meaning that
they “actually ha[d] a potential to be out on the street and
they actively r[an] with the gang.” And Maquiz was known
as “Mr. Lucky” in the gang, which is “a significant thing, in
that most [gang members] don’t obtain [a nickname] unless
they’re living the lifestyle.”
Deputy Brewer also discussed how a robbery—even one
committed alone—might benefit PMV: “[T]he fear and
intimidation goes out into the community. . . . You want the
people to know you’re the ones that run that area and you
don’t want to mess with Perres Mara Villa.” Likewise,
Brewer testified that the fruits of the robbery could be
helpful to the gang, explaining that “[w]hatever money
might be obtained . . . [is] not necessarily only maintained
by that individual. He’s going to share [it] with other
members of the gang.” More generally, Brewer testified that
“whether it be just . . . one [crime] or . . . two, three crimes
in just a short period of time as a group, they continue to
work as an organization.”
Deputy Brewer then specifically discussed the 1999 and
2001 robberies.
When asked whether the 1999 robbery “constituted a
benefit for the Perres Mara Villa gang,” Brewer answered
24 MAQUIZ MACDONALD V. HEDGPETH
affirmatively, stressing the “fear and intimidation factor”
and stating that “any money that was taken in the crime can
be used by those gang members to further their activities.”
Brewer also testified that the 2001 robbery “constitute[d]
[a] benefit for the Perres Mara Villa gang.” Brewer
explained that the robbery “furthered knowledge of [the
gang],” and he highlighted once again the “fear and
intimidation factor for the gang and for [Maquiz] as a
member of that gang.” Brewer then described how Maquiz
might have shared the proceeds of the 2001 robbery with his
gang: “Out of a respect factor, he would probably have a
tendency to talk about it. And as far as sharing that, if [PMV]
were present while he still had that money . . . he would
either share it or [PMV would] benefit . . . by what he spends
the money on.”
The jury found Maquiz guilty of each robbery count, and
found the allegations to support the gang sentence
enhancements true beyond a reasonable doubt. After several
rounds of direct appeals, Maquiz was sentenced to twenty-
three years in prison, with the terms of each gang
enhancement to run concurrently. Maquiz then filed a
habeas petition in the state court system, arguing, among
other things, that (1) the superior court committed
constitutional error by permitting Deputy Brewer to testify
to the ultimate truth or falsity of his gang enhancements and
(2) insufficient evidence supported the 2001 gang
enhancement. The California Court of Appeal for the Fourth
District denied the habeas petition without comment, and the
Supreme Court of California—while granting the habeas
petition on some grounds—did not address either of the
above grounds for relief.
MAQUIZ MACDONALD V. HEDGPETH 25
Maquiz then filed a federal habeas petition reasserting
his arguments, and the district court denied relief. Maquiz
timely appealed.
II
The majority rightly rejects Maquiz’s first argument—
that habeas relief is warranted because Deputy Brewer
testified directly to the truth or falsity of his gang
enhancements—because Maquiz can point to no law clearly
established by the Supreme Court of the United States that
would prohibit such testimony. Maj. Op. at 9.
But the majority runs astray in its analysis of Maquiz’s
second argument. The majority holds that the evidence at
his trial was constitutionally insufficient under Jackson v.
Virginia, 443 U.S. 307 (1979), to support the 2001 gang
enhancement, and that therefore there was “no reasonable
basis on which the California courts could have rejected
Maquiz’s [habeas petition].” Maj. Op. at 20.
With respect, I believe the majority’s analysis is
incorrect.
A
Jackson instructs that when assessing the sufficiency of
the evidence challenge to a criminal conviction, we must ask
“whether, after 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.” 443 U.S. at 319. And, as all must agree,
“Jackson claims face a high bar in federal habeas
proceedings because they are subject to two layers of judicial
deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012).
That is, “on habeas review, a federal court may not overturn
26 MAQUIZ MACDONALD V. HEDGPETH
a state court decision rejecting a sufficiency of the evidence
challenge simply because the federal court disagrees with the
state court. The federal court instead may do so only if the
state court decision was objectively unreasonable.” Id.
(internal quotation marks omitted). So when we combine
Jackson and AEDPA deference, our inquiry is whether no
“fairminded jurist[]” could conclude that “any rational trier
of fact could have” found sufficient evidence to support the
conviction. See Yarborough v. Alvarado, 541 U.S. 652, 664
(2004); Jackson, 443 U.S. at 319. “If this standard is
difficult to meet, that is because it was meant to be.”
Harrington v. Richter, 562 U.S. 86, 102 (2011).
B
I suggest that the majority’s analysis is premised upon
two core misunderstandings of how a federal court is to
assess a Jackson claim under AEDPA.
1
First, the majority looks to the wrong law: rather than
rely exclusively on the law clearly established by the
Supreme Court as AEDPA commands, the majority turns to
what it views as analogous state court decisions. More
specifically, the majority disregards Deputy Brewer’s expert
testimony in support of the gang enhancement because some
decisions from the California Courts of Appeal have held
insufficient the testimony of gang experts to support
enhancements in other cases. Maj. Op. at 17, 19–20. But,
obviously, state courts do not clearly establish federal law on
the Supreme Court’s behalf. See Cuero, 138 S. Ct. at 9
(admonishing the Ninth Circuit for substituting “state-court
decisions” in lieu of decisions from the Supreme Court when
operating under the AEDPA standard of review).
MAQUIZ MACDONALD V. HEDGPETH 27
In holding otherwise, the majority takes refuge in the
Supreme Court’s instruction that the Jackson standard must
be applied by “reference to the substantive elements of the
criminal offense as defined by state law.” 443 U.S. at 324
n.16. But it does not at all follow from such premise that the
sufficiency of the evidence required to meet those elements
may be ascertained by reference to state law. Rather, “the
minimum amount of evidence that the Due Process Clause
requires to prove the offense is purely a matter of federal
law.” Coleman, 566 U.S. at 655 (emphasis added). Indeed,
the Supreme Court reversed the Third Circuit for making
precisely the same mistake as the majority makes here. In
Coleman, the Court held that “it was error for [that Circuit]
to look to Pennsylvania law in determining what
distinguishes a reasoned inference from ‘mere speculation.’”
Id. We should heed the same guidance in this case. To do
otherwise contravenes Jackson, which “leaves juries broad
discretion in deciding what inferences to draw from the
evidence presented at trial.” Id.
The majority offers a final reason to justify its reliance
on state court cases, noting briefly that federal court
decisions similarly “do not allow . . . suspicion and
speculation to support a jury verdict.” Maj. Op. at 18.
Setting aside the heavily generalized nature of such an
assertion, the majority sees fit to bolster it with cases from
only our court. But as the Supreme Court has repeatedly
admonished, Ninth Circuit precedent “does not constitute
‘clearly established Federal law, as determined by the
Supreme Court.’” Glebe v. Frost, 135 S. Ct. 429, 431 (2014)
(per curiam) (quoting 28 U.S.C. § 2254(d)(1)); see also
Cuero, 138 S. Ct. at 9; Lopez v. Smith, 135 S. Ct. 1, 4 (2014)
(per curiam).
28 MAQUIZ MACDONALD V. HEDGPETH
2
Second, the majority fails to answer the only question
AEDPA asks of us: whether fairminded jurists could
disagree regarding the Jackson question presented in this
case. That is, our inquiry here surely is not whether the
California courts correctly applied the Jackson standard, but
whether the State’s courts applied it in an objectively
unreasonable fashion. We must take significant care not to
mistake the two inquiries. See Williams v. Taylor, 529 U.S.
362, 410 (2000) (“For purposes of today’s opinion, the most
important point is that an unreasonable application of
federal law is different from an incorrect application of
federal law.”). The Supreme Court has emphasized that
“even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Harrington,
562 U.S. at 102.
But once the majority holds the evidence insufficient
under Jackson to support Maquiz’s gang enhancement, it
immediately concludes, as if it necessarily followed, that
there was “no reasonable basis on which the California
courts could have rejected Maquiz’s argument that the gang
sentencing enhancement . . . was unsupported by sufficient
evidence.” Maj. Op. at 20. Such perfunctory reasoning
collapses the “two layers of judicial deference” that we must
afford when evaluating a Jackson claim under AEDPA.
Coleman, 566 U.S. at 651. So while the majority begins its
analysis with a boilerplate recitation of the AEDPA standard
of review, Maj. Op. at 10, AEDPA deference enjoys “no
operation or function in its reasoning,” Harrington, 562 U.S.
at 104.
MAQUIZ MACDONALD V. HEDGPETH 29
C
Any serious engagement with the question AEDPA asks
of us mandates that we affirm the district court’s denial of
the writ of habeas corpus. Simply put, the question whether
Maquiz’s gang-related sentence enhancement is supported
by sufficient evidence under Jackson lies well within the
realm of fairminded disagreement.
1
A reasonable jurist could conclude that Deputy Brewer’s
expert testimony adequately supported both elements of the
gang enhancement—specifically, that Maquiz committed
the 2001 robbery (1) “for the benefit of” PMV and (2) “with
the specific intent to promote, further, or assist in any
criminal conduct by [PMV].” People v. Albillar, 244 P.3d
1062, 1070, 1074 (Cal. 2010).
Deputy Brewer’s testimony supports the inference that
Maquiz committed the 2001 robbery for the benefit of PMV;
Brewer stated that the robbery “furthered knowledge of, fear
and intimidation . . . for the gang and for [Maquiz] as a
member of that gang.” Brewer’s testimony likewise
supports the inference that Maquiz committed the 2001
robbery with the intent to further the criminal activities of
the PMV gang. As he explained, PMV members like
Maquiz “continue to work as an organization” whether they
commit crimes alone or as a group, so the jury could have
inferred that Maquiz committed the robbery with PMV’s
criminal objectives (rather than his own) in mind.
The foundation for Deputy Brewer’s testimony might
have been stronger, but his conclusion was far from baseless.
As Deputy Brewer testified, Maquiz was an “active”
member of PMV, meaning that he “actively r[a]n with the
30 MAQUIZ MACDONALD V. HEDGPETH
gang” and that he was “living the [gang] lifestyle.” The type
of crime at issue—robbery—is also probative, because
Deputy Brewer testified that one of the PMV gang’s
“primary activities” was engaging in robberies. Deputy
Brewer’s testimony must also be considered in light of his
extensive experience, not just with gangs in general, but with
PMV and Maquiz in particular. Deputy Brewer testified that
he had personally made contact with roughly 150 to 200
different PMV members in Perris, and had met with Maquiz,
specifically, five or six times.
Moreover, the jury had before it evidence supporting a
conclusion that the 2001 robbery took place in or near PMV
territory. For example, Deputy Brewer identified various
buildings in Perris where the PMV gang had marked its
territory using graffiti, and such buildings are near the
location of Maquiz’s 2001 robbery. Because the prosecution
presented evidence of the location of the PMV graffiti and
the 2001 robbery, a reasonable jury could have utilized the
proximity between the two locations to conclude that both
incidents took place in or near PMV territory. See Jackson,
443 U.S. at 326 (holding that court must presume trier of fact
resolved all inferences in favor of the prosecution “even if it
does not affirmatively appear in the record”). With the
robbery so located, Deputy Brewer’s conclusion finds
further support in his earlier discussion that criminal street
gangs seek to control their territory by spreading
“intimidation and fear within the community.”
The California courts thus could well have reached the
fairminded conclusion that sufficient evidence supported the
gang enhancement.
MAQUIZ MACDONALD V. HEDGPETH 31
2
The majority casts aside Deputy Brewer’s conclusion
that Maquiz worked to benefit PMV by intimidating the
community, because Maquiz did not flaunt his PMV
affiliation when he committed the 2001 robbery. Maj. Op.
at 16.
So what?
Deputy Brewer discussed the extensive efforts of PMV
generally to make its presence known within the Perris
community by, for example, marking buildings with
territorial graffiti. In light of such efforts, the 2001 robbery
easily could have been attributed to PMV even without
Maquiz explicitly having announced “I’m a member of
PMV!” when he committed the crime. And even if the
majority thinks not, the Supreme Court has routinely
rejected under AEDPA the sort of “fine-grained factual
parsing” the majority must engage in to disagree. See
Coleman, 566 U.S. at 655.
The majority also asserts that it cannot hold Deputy
Brewer’s testimony sufficient to support the gang
enhancement because “[t]o hold otherwise would turn the
statute into a penalty enhancement simply for committing a
crime while being a gang member.” Maj. Op. at 18. In so
concluding, the majority makes much of the Supreme Court
of California’s statement that “[n]ot every crime committed
by gang members is related to a gang.” Albillar, 244 P.3d at
60. But Albillar’s statement reflects only a state gloss on the
sort of evidence needed to support the gang enhancement.
Even if the majority is correct that, under California law,
proof of gang membership alone is typically insufficient, by
itself, to support the enhancement, it is immaterial to the
federal sufficiency question presented by Maquiz’s Jackson
32 MAQUIZ MACDONALD V. HEDGPETH
claim. See Coleman, 566 U.S. at 655. In reasoning
otherwise, the majority, in essence, holds that Maquiz is
entitled to federal habeas relief because the California courts
misapplied California law. This is not the province of
AEDPA.
III
At bottom, the majority seems simply to conclude
Deputy Brewer’s expert testimony is unpersuasive. But that
is not the majority’s call to make under Jackson, and it surely
is not the appropriate inquiry under AEDPA. Taking
AEDPA’s command seriously, we must ask only whether a
fairminded jurist could conclude that any rational jury might
have credited Deputy Brewer’s expert testimony. The
answer to that question is undoubtedly yes.
I respectfully dissent.