Bernadette Osika v. Deborah Patrick , 472 F. App'x 441 ( 2012 )

FILED
NOT FOR PUBLICATION MAR 16 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BERNADETTE MARIA OSIKA, No. 09-55561
Petitioner - Appellant, D.C. No. 5:07-cv-01533-FMC-
PJW
v.
DEBORAH L. PATRICK, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Florence-Marie Cooper, District Judge, Presiding
Submitted March 9, 2012**
Pasadena, California
Before: FARRIS, CLIFTON, and IKUTA, Circuit Judges.
Bernadette Maria Osika appeals the district court’s denial of her petition for
a writ of habeas corpus. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
In 2004, Osika assisted her boyfriend, a gang member, in robbing a victim
and stealing his vehicle. See People v. Villalobos, 51 Cal. Rptr. 3d 678, 680-81,
145 Cal. App. 4th 310, 314-15 (Cal. Ct. App. 2006). A jury found Osika guilty of,
inter alia, first degree robbery in violation of California law and found that
California’s gang enhancement statute applied. By its terms, the gang enhancement
statute applies to “any person who is convicted of a felony committed for the
benefit of, at the direction of, or in association with any criminal street gang, with
the specific intent to promote, further, or assist in any criminal conduct by gang
members . . . .” Cal. Penal Code §§ 186.22(b)(1), (b)(4). The trial court applied the
gang enhancement and sentenced Osika to state imprisonment for an indeterminate
term of 15 years to life.
Osika argues that the gang enhancement statute required the prosecution to
prove more than “that [her] boyfriend intended to further the interests of the gang
by committing the crime and that [she] intended to help her boyfriend commit the
crime.” Osika relies on our interpretation of § 186.22(b)’s “specific intent”
requirement in Garcia v. Carey, 395 F.3d 1099 (9th Cir. 2005), and Briceno v.
Scribner, 555 F.3d 1069 (9th Cir. 2009). See id. at 1081 (prosecution must prove
“that the defendant committed the crime with the specific intent to benefit the
gang”); id. at 1079 (requiring evidence “‘that would support an inference that [the
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defendant] robbed [the victim] with the specific intent to facilitate other criminal
conduct by the [gang]’”) (quoting Garcia, 395 F.3d at 1103) (first alteration and
emphasis added).
After the parties submitted their briefs in this case, the California Supreme
Court rejected Garcia’s and Briceno’s reading of § 186.22(b)(1). See People v.
Albillar, 244 P.3d 1062, 1074-76, 119 Cal. Rptr. 3d 415, 429-32, 51 Cal. 4th 47,
64-68 (Cal. 2010). “The California Supreme Court . . . definitively interpreted
§ 186.22(b)(1) in Albillar,” “expressly disapproved [of] the Ninth Circuit’s
interpretation of section 186.22(b)(1),” and thus “overruled Briceno and Garcia’s
interpretation of section 186.22(b)(1).” Emery v. Clark, 643 F.3d 1210, 1215 (9th
Cir. 2011). Under Albillar, “‘the specific intent to promote, further, or assist in any
criminal conduct by gang members’[ ] is unambiguous and applies to any criminal
conduct, without a further requirement that the conduct be ‘apart from’ the
criminal conduct underlying the offense of conviction sought to be enhanced.” Id.(quoting Albillar, 244 P.3d at 1075, 119 Cal. Rptr. 3d at 431, 51 Cal. 4th at 68)
(alterations in original). “[S]ection 186.22(b)(1) does not require the ‘specific
intent to promote, further, or assist a gang-related crime.’ The statute requires only
‘the specific intent to promote, further, or assist criminal conduct by gang
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members.’” Id. at 1215 n.3 (quoting Albillar, 244 P.3d at 1075-76, 119 Cal. Rptr.
3d at 431-32, 51 Cal. 4th at 67-68) (alterations in original) (citation omitted).
Albillar forecloses Osika’s sole ground for appeal.
AFFIRMED.
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