Padilla v. Lewis
Filing
28
MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 12/15/2014 DENYING 1 Petition for Writ of Habeas Corpus. It is further ORDERED that the Court DECLINES to issue a Certificate of Appealability. CASE CLOSED. (Donati, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
RAFAEL PADILLA,
No. 2:12-cv-00238-JKS
Petitioner,
MEMORANDUM DECISION
vs.
CLARK E. DUCART, Warden, Pelican
Bay State Prison,1
Respondent.
Rafael Padilla, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas
Corpus with this Court pursuant to 28 U.S.C. § 2254. Padilla is currently in the custody of the
California Department of Corrections and Rehabilitation and is incarcerated at Pelican Bay State
Prison. Respondent has answered, and Padilla has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In resolving his claims on direct appeal, the Court of Appeal recounted the facts of this
case as follows:
In the early hours of April 9, 2005, at a party in a Stockton residence, [Padilla]
fired a gun at the chest of victim Cesar Prado, as Prado sat on a couch playing a video
game. Prado sustained bullet wounds to the chest and abdomen. At the scene, Prado told
police he did not know the shooter or the reason for the shooting.
At trial, Prado (who was in custody on a narcotics charge) testified he did not
remember the shooting or his prior statements about it. He refused to look at police
reports to try to refresh his recollection.
Police officers testified Prado made a statement a couple of weeks after the
shooting, in which he said that about a month before the shooting, the shooter ([Padilla])
approached Prado and his cousin on the street, in the area of 12th Street, and asked if
1
Clark E. Ducart, Warden, Pelican Bay State Prison, is substituted for G. Lewis,
former Warden. FED. R. CIV. P. 25(d).
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they were “scraps” (the Norteno gang’s derogatory term for rival Sureno gang members).
They said no. [Padilla] hit Prado in the shoulder. Prado hit [Padilla] several times in the
face before others broke up the fight. Prado next saw [Padilla] at the April 9 party.
[Padilla] kept staring at Prado and tried to get him to stop playing a video game. Prado
told him to wait his turn. [Padilla] left but returned and asked, “Do you remember me?”
Prado said no. [Padilla] said, “You should remember because you were talking shit about
me last week,” and “You’ll remember me now.” [Padilla] pulled a gun from his
waistband, pointed and shot Prado once in the chest area, paused, and then fired twice
more.
Prado testified at the preliminary hearing consistent with his April 26 statement to
the police.
Other witnesses described the shooter to police as a young Hispanic male with
long black hair in a ponytail, a large “XIV” tattoo under his eye, and “big, rabbit teeth.”
An officer recognized the description of [Padilla]. A search of [Padilla’s] home revealed
red clothing and a drawing which, according to a gang expert, symbolized the Sixth
Street Gangsters or SSG, a Norteno gang.
When police later arrested [Padilla], he was wearing a red belt bearing the letter
“N” and carrying two loaded guns and a cell phone programmed to show the words
“Norteno Villain, Scrapa Killin’” when turned on.
Police officer David Putnam, who testified as an expert on Hispanic gangs, said
[Padilla] had several tattoos representing himself as a member of the Norteno street gang,
specifically a Norteno Sixth Street Gang member: “XIV” (signifying the 14th letter of the
alphabet, N, for Norteno) on his face; a “six” tattoo near his eye for Sixth Street;
“Stocktone” above his brow; “Norte” on his right arm; a female with a sombrero bearing
the word “Norte” on his neck; one dot on his right cheek and four dots on his left cheek
for “14”; the same pattern on his hands; “SIX” on his right hand and “ST” (street) on his
left hand; and “SK” for scrap killer on his left ring finger. The tattoos on the face, visible
to everyone, are a clear sign that he represents the Norteno gang. Based on the evidence
he reviewed, the expert opined [Padilla] is a member of the Sixth Street Gang, a subset of
the Norteno gang. When someone with [Padilla’s] visible tattoos approaches another
person and accuses them of being a “scrap,” it is a significant confrontational event.
The expert, who qualified in court as a gang expert on at least 25 prior occasions,
testified he participated in several hundred investigations of gang-related crimes and
hundreds of arrests. He is familiar with the Norteno criminal street gang in Stockton
from personal contact with its members, investigations leading to arrests, investigations
when Nortenos were victims of crimes, consensual contacts on the street, car stops, and
probation and parole searches. The Norteno gang has subsets identified by geographical
location in the city, but “generally the blanket, the overall Norteno is what everybody
would claim, if you are a Norteno. . . . Realistically, they are all Nortenos. The expert
testified he is also familiar with the Norteno subset, the Sixth Street Gang, and has read
police reports about them, though he has not had frequent contact with them.
The expert opined, based on personal experience in the arrest of gangs
committing those crimes and crime reports he reviewed, that the gang’s primary activities
include auto theft, carjacking, attempted murder, and shootings.
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The expert testified to prior convictions of other Sixth Street Gang members:
Eduardo Vivero was convicted of auto theft in August 2002, and Alejandro Ceja was
convicted of carjacking in January 2005.
The expert was given a hypothetical using the facts of this case and opined the
offense was gang-related. The shooting was revenge for the initial gang-related
confrontation in which [Padilla] got the worst of a fistfight, which would mean a loss of
respect for him. It is important for gang members to maintain power and instill fear
among other gang members and the community in general. Without fear from the
community, the gang loses its power. If the community cooperates with the police in
prosecuting gang members, it is hard for the gang to maintain control.
The jury convicted [Padilla] of attempted premeditated murder and assault with a
firearm and found true the allegations of personal use and discharge of a firearm causing
great bodily injury and participation in, and commission of the offenses for the benefit of,
a criminal street gang.
On September 22, 2008, the trial court sentenced [Padilla] to a total term of 40
years to life on the attempted murder count, gang enhancement ([California Penal Code]
§ 186.22, subd. (b)(1)), and personal discharge of a firearm causing great bodily injury
(§ 12022.53, subd. (d)). The court stayed sentence on the other counts and enhancements.
People v. Padilla, No. C060011, 2010 WL 4132367, at *1-3 (Cal. Ct. App. Oct. 21, 2010).
Padilla filed a counseled appeal, arguing that the trial court erred in denying his
Batson/Wheeler motion2 when the prosecutor removed three African-Americans from the jury
panel, and there was insufficient evidence that his group was a criminal street gang or that he
acted with the intent to benefit the group. The Court of Appeal affirmed Padilla’s judgment of
conviction in a reasoned opinion dated October 21, 2010. Id. at *12. Padilla raised the same
arguments in his counseled petition for review. The California Supreme Court summarily denied
review on January 12, 2011.
2
Batson v. Kentucky, 476 U.S. 79 (1986) (a shorthand reference to the procedure
under which a prosecutor’s peremptory strikes of potential jurors are challenged on the basis that
the strikes are being made on a discriminatory basis, i.e., because they are members of an
identifiable group distinguished on racial, religious, ethnic, or similar grounds); People v.
Wheeler, 583 P.2d 748 (Cal. 1978) (the California counterpart to Batson).
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Padilla filed his pro se Petition with this Court on November 7, 2012. Respondent
concedes that the Petition is timely and that Padilla exhausted his claims in state court.
II. GROUNDS RAISED
In his Petition before this Court, Padilla raises two claims. First, he argues that the trial
court erred in denying his Batson/Wheeler motion when the prosecutor removed three AfricanAmericans from the jury panel. Second, he argues that there was insufficient evidence that his
group was a criminal street gang and that he acted with the intent to benefit the group.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2). A state-court decision is “contrary” to federal law “if the state court applies a rule
that contradicts the governing law set forth” in controlling Supreme Court authority or “if the
state court confronts a set of facts that are materially indistinguishable from a decision” of the
Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362,
406 (2000).
The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)
“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the
relevant state-court decision,” id., and not circuit precedent, see Renico v. Lett, 559 U.S. 766,
779 (2010). The holding must also be intended to be binding upon the states; that is, the decision
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must be based upon constitutional grounds and not on the supervisory power of the Supreme
Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Thus, where holdings of the
Supreme Court regarding the issue presented on habeas review are lacking, “it cannot be said
that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’” Carey v.
Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
In applying these standards in habeas review, this Court reviews this “last reasoned
decision” by the state court. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991); Robinson v. Ignacio,
360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)).
Under AEDPA, the state court’s findings of fact are presumed to be correct unless the petitioner
rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
IV. DISCUSSION
Batson/Wheeler Challenges
Padilla, who is Hispanic, claims that the trial court erred in denying his Batson/Wheeler
challenge to the prosecutor’s removal of three African-American jurors—G., R., and B. Padilla
raised this claim in his counseled appeal, and the Court of Appeal recounted the facts of this
claim as follows:
During jury selection, the prosecutor exercised peremptory challenges to excuse
one Hispanic (M.), and three Blacks (G., R., and B.). [Padilla] made a Batson/Wheeler
motion, arguing it appeared the prosecution, having used four of seven peremptory
challenges on “people of ethnicity,” was “systematically removing all people of color.”
The trial court declined to find a prima facie case of discrimination against Hispanics
because there were “at least four other Hispanic surnamed jurors still . . . in the jury box.”
The court noted no other Blacks remained, found a prima facie showing of exclusion of
Blacks, and asked the prosecutor for her reasons.
The prosecutor explained G. was “very cagey and guarded” about how she knew
one of [Padilla’s] attorneys (R. Cingcon) and would only say it was “professional.” G.’s
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juror questionnaire identified her incarcerated son as a crime victim. She initially said in
voir dire that this was an issue, then said it was “no big deal.” She failed to answer
questions on the questionnaire about willingness to talk with other jurors and about her
feelings with respect to lawyers and law enforcement.
With respect to R., the prosecutor disbelieved his denial of gang membership. He
admitted he got into gang fights; his residence was subjected to gang graffiti and
vandalism. The prosecutor noted (and the trial court agreed, over defense counsel’s
reservation) that the new trend is for gang members to deny gang membership.
As to B., the prosecutor said he did not appear to understand some of her
questions; he kept making reference to the Bible; he had two incarcerated brothers whom
he visits; and his ability to render an independent verdict was questionable, based on his
inability to explain going to a gun show other than saying his friend wanted to go.
In response, the defense claimed G.’s questionnaire said she knew Cingcon by
reputation only; R. merely expressed knowledge that gangs exist and are territorial; and
B. merely said he would get from the Bible the strength to resist pressure from other
jurors.
The trial court (1) agreed with the prosecutor that G. was evasive about knowing
defense counsel; (2) did not know if R. was a gang member but agreed he made a lot of
comments about gangs; and (3) [found] B. “seems a little bit different from other people”
sufficient, together with his religious comments, to justify the prosecutor’s concern. The
court found the peremptory challenges were race-neutral.
Padilla, 2010 WL 4132367, at *3.
The Equal Protection Clause prohibits purposeful racial discrimination in the selection of
the jury. Batson, 476 U.S. at 86. In Batson, the Supreme Court outlined a three-step process for
evaluating claims that a prosecutor has used peremptory challenges in a manner violating the
Equal Protection Clause: 1) a defendant raising a Batson claim must establish a prima facie case
of discrimination; 2) once a prima facie case of discrimination is established, the burden of
offering race-neutral reasons for the strikes shifts to the prosecutor; 3) after the prosecutor offers
race-neutral reasons, the trial court has the duty to determine if the defendant has established
purposeful discrimination. Paulino v. Harrison, 542 F.3d 692, 699 (9th Cir. 2008) (citing
Batson, 476 U.S. at 98).
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On federal habeas review, AEDPA “imposes a highly deferential standard for evaluating
state-court rulings” regarding Batson claims that “demands that state-court decisions be given
the benefit of the doubt.” Felkner v. Jackson, 131 S. Ct. 1305, 1307 (2011) (quoting Renico, 559
U.S. at 773). Under the AEDPA, a federal habeas court may only grant relief “if it was
unreasonable to credit the prosecutor’s race-neutral explanations for the Batson challenge.” Rice
v. Collins, 546 U.S. 333, 338 (2006). This “standard is doubly deferential: unless the state
appellate court was objectively unreasonable in concluding that the trial court’s credibility
determination was supported by substantial evidence, we must uphold it.” Briggs v. Grounds,
682 F.3d 1165, 1170 (9th Cir. 2012).
Here the parties do not dispute the state court’s conclusion at step one of the Batson
analysis that Padilla established a prima facie case that each peremptory strike was based on race
or that the prosecutor produced a race-neutral explanation for dismissing each potential juror at
step two. The issue presented in Padilla’s Petition is whether the state court’s determination at
step three, that the prosecutor did not engage in purposeful discrimination, was an unreasonable
determination pursuant to 28 U.S.C. § 2254(d)(2) of the facts in light of the evidence presented
in the state court proceedings.
The Court of Appeal undertook a lengthy analysis of Padilla’s claim before ultimately
rejecting it:
1. G.
The record supports the trial court’s decision as to prospective juror G., who
disclosed, “I know one of the attorneys” and identified Cingcon. The record shows:
“THE COURT: Is that a close personal relationship or—
“[G.]: No.
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“THE COURT:—or more than an acquaintance?
“[G.]: No. I just know him.
“THE COURT: Would that affect your ability to be fair?
“[G.]: No—yeah, no.
“THE COURT: In other words, can you make a decision based on the evidence
and the fact you might be familiar with [ ] Cingcon and set that aside?
“[G.]: No. Only thing, I just have a problem. I have a son who is incarcerated.”
She then said it would not make it difficult for her to be fair.
When the prosecutor later asked how G. knew Cingcon, she said, “He’s a
lawyer.” When asked if Cingcon was “in employment at that time,” she said, “Yes.”
When asked if he was involved in her son’s case, she said, “No.” When the prosecutor
asked about the son’s criminal case, G. said, “I didn’t think it was fair. The jury—the
jury said that he was guilty,” but G. said she could be fair in this case. The prosecutor
elicited answers to questions G. had left blank on her questionnaire.
On appeal, [Padilla] compares G. with others on the panel. “[C]omparative juror
analysis is but one form of circumstantial evidence that is relevant, but not necessarily
dispositive, on the issue of intentional discrimination. . . . Thus, evidence of comparative
juror analysis must be considered in the trial court and even for the first time on appeal if
relied upon by the defendant and the record is adequate to permit the urged
comparisons.” However, “comparative juror evidence is most effectively considered in
the trial court where the defendant can make an inclusive record, where the prosecutor
can respond to the alleged similarities, and where the trial court can evaluate those
arguments based on what it has seen and heard. . . . Defendants who wait until appeal to
argue comparative juror analysis must be mindful that such evidence will be considered
in view of the deference accorded the trial court’s ultimate finding of no discriminatory
intent. [Citation.] Additionally, appellate review is necessarily circumscribed. The
reviewing court need not consider responses by stricken panelists or seated jurors other
than those identified by the defendant in the claim of disparate treatment. Further, the
trial court’s finding is reviewed on the record as it stands at the time the Wheeler/Batson
ruling is made. If the defendant believes that subsequent events should be considered by
the trial court, a renewed objection is required to permit appellate consideration of these
subsequent developments.”
Here, [Padilla] did not raise his comparative analysis in the trial court. On appeal,
he argues the prosecutor allowed two persons to be seated as jurors despite knowing a
criminal defense attorney and a deputy district attorney. However, those attorneys were
not involved in this case.
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[Padilla] complains one of the prosecutor’s reasons for excusing G. was the
prosecutor’s view that she would be unwilling to talk with other jurors, whereas the
prosecutor had no similar hesitation in accepting another person ultimately seated as a
juror who said she would not feel comfortable discussing her opinions and feelings with
11 strangers, but she would do it. However, there is no comparison between the juror’s
natural discomfort with an unfamiliar situation and G.’s evasiveness about knowing
defense counsel and belief that her own son was incarcerated due to a jury’s mistake.
We reject [Padilla’s] assertion that G.’s exclusion was discriminatory when
viewed in the totality of the exclusion of all African-Americans.
2. R.
[Padilla] claims the trial court’s reservation as to whether R. was actually a gang
member shows the court did not agree with the prosecutor’s factual basis. We disagree.
Although the trial court said it was not clear that R. was a gang member, the
prosecutor was not required to prove he was a gang member, as [Padilla] suggests. The
record supports the trial court’s decision that his exclusion was not race-based. R., a
college student, said someone he knew vandalized his house by “tagging” it with “their
symbols” or “logos.” He did not know why. He did not report it to police out of concern
for his family. He denied being a gang member but had been involved in a “maybe hood
kind of thing” and territorial fighting when he lived in East Palo Alto. If he went into the
other side’s territory, he would probably be beaten or shot.
The prosecutor was not required to take a chance on R.
3. B.
The record supports the trial court’s conclusion that B.’s exclusion was not
improper. B. said two younger brothers were involved in a robbery; one is still
incarcerated. He visits but does not talk to them about the robbery. When the prosecutor
asked about his answer on the questionnaire, that he might have difficulty assessing
credibility, he said, “Did I say that?” and when told yes but he could change his answer,
he said, “I probably wouldn’t have no problem with it.” He went to a gun show once
because a coworker asked him to go. He studies the Bible. The prosecutor asked, “And
there are certain tenets within the Bible that govern—like, there must be more [sic] two
witnesses or more, correct?” He said yes. When asked if he could follow the law if it
conflicted with his religious beliefs, he said yes.
Insofar as [Padilla] challenges the prosecutor’s perception that B. had some type
of disability, the trial court was in the best position to assess that perception. That B. was
gainfully employed and had two years of college does not warrant reversal.
[Padilla] claims the prosecutor misrepresented that B. made repeated references to
the Bible, whereas it was the prosecutor who kept bringing up the Bible after B. made
comments merely indicating “a religious bent.” The point is inconsequential.
On appeal, [Padilla] complains the prosecutor had no problem with another
person who was seated as a juror despite having an “obvious strong affiliation with the
Bible.” [Padilla] did not raise the point in the trial court. Moreover, there is no
comparison, because the person did not affirmatively and continually inject religion into
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his or her responses, as did B., but merely said, when asked about an apparent tattoo on
his or her arm, that it was not a tattoo but a “stick on” from “Vacation Bible School” with
the word “Love.” Moreover, the prosecutor’s concern was not with religion per se, and
she had other reasons for excusing B.
With reference to B.’s brothers being involved in robbery, [Padilla] complains the
prosecutor allowed to be seated as jurors several other persons, who were not Black, who
had prior exposure to criminal matters (a son or friends prosecuted for drunk driving or
minor convictions, a brother addicted to drugs, and two people who felt discriminated
against by the police). However, robbery (like the present case) is different because it
involves a willingness to use violence or a threat of force against another person.
Moreover, this was not the sole reason for exclusion of B.
We conclude [Padilla] fails to show grounds for reversal based on jury selection.
Padilla, 2010 WL 4132367, at *4 (citations omitted).
That analysis survives deferential federal habeas scrutiny. The state courts did not
unreasonably apply Batson or its progeny in exploring and evaluating the prosecutor’s conduct.
Based on the record before this Court, there is no basis to find that the state court’s denial of
Padilla’s Batson claim was unreasonable. Accordingly, Padilla is not entitled to relief on this
ground.
Insufficiency of the Evidence
Padilla next argues that insufficient evidence supported the allegation that the shooting
was committed with the intent to benefit or promote a criminal street gang. The Court of Appeal
denied Padilla relief on this claim as follows:
II. Substantial Evidence of Criminal Street Gang
[Padilla] argues the judgment must be reversed because there was insufficient
evidence that the Sixth Street Gang qualified as a criminal street gang under [California
Penal Code] section 186.22, in that (1) there was insufficient evidence that the Sixth
Street Gang (as opposed to Nortenos) consistently and repeatedly engaged in the primary
activities necessary to constitute a criminal street gang, and (2) there was insufficient
evidence that all Nortenos in Northern California qualified as a criminal street gang. We
see no ground for reversal.
In considering a claim of insufficiency of the evidence, we review the record in
the light most favorable to the judgment to determine whether it discloses reasonable and
credible evidence of solid value such that a reasonable trier of fact could find defendant
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guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318; People
v. Johnson (1980) 26 Cal. 3d 557, 578.)
Although section 186.22 has been amended since the April 2005 shooting to
include more categories of predicate crimes not relevant to this case, the pertinent
substance of the statute has remained the same. Thus, section 186.22, subdivision (f),
provides: “As used in this chapter, ‘criminal street gang’ means any ongoing
organization, association, or group of three or more persons, whether formal or informal,
having as one of its primary activities the commission of one or more of the criminal acts
enumerated in . . . subdivision (e) [including assault with a deadly weapon, auto theft and
carjacking], having a common name or common identifying sign or symbol, and whose
members individually or collectively engage in or have engaged in a pattern of criminal
gang activity.” (Stats. 2001, ch. 854; Stats. 2009, ch. 171, § 1.) Section 186.22,
subdivision (e), provides: “As used in this chapter, ‘pattern of criminal gang activity’
means the commission of, attempted commission of, conspiracy to commit, or solicitation
of, sustained juvenile petition for, or conviction of two or more of the following offenses,
provided at least one of these offenses occurred after the effective date of this chapter and
the last of those offenses occurred within three years after a prior offense, and the
offenses were committed on separate occasions, or by two or more persons: [¶]
(1) Assault with a deadly weapon or by means of force likely to produce great bodily
injury, as defined in Section 245. . . . [¶] (21) Carjacking, as defined in Section 215. . . .
[¶] (25) Theft and unlawful taking or driving of a vehicle, as defined in Section 10851 of
the Vehicle Code.”
Contrary to [Padilla’s] view, the “two or more” predicate offenses do not need to
be proven to be gang-related in order to serve as predicate offenses for section 186.22.
(People v. Gardeley (1996) 14 Cal. 4th 605, 621.)
Here, police officer David Putnam testified as an expert in Hispanic gangs. He
testified he is familiar with the Norteno gang and with its subset, the Sixth Street Norteno
gang. “Realistically, they are all Nortenos.” He is familiar with the Norteno gang from
“[p]ersonal contact with its members; investigations leading to arrests; investigations
when Norteno members are victims of crimes themselves; consensual contacts . . . out on
the street, car stops, probation, parole searches . . . [and court-ordered interviews].” He is
similarly familiar with but has had less contact with the subset Sixth Street Gangsters,
which formed in Stockton in 1990 and had 28 members in September 2006 when the
expert was preparing for trial. Because Sixth Street Gangster[s] are also a Norteno gang,
they use the symbol 14 or XIV, N being the 14th letter of the alphabet. The gang’s
primary activities include auto theft, carjacking, attempted murder, and shootings. The
expert acquired this information “sometimes from personal experience involved in the
arrest of Norteno gang members committing those crimes. Also with reports coming
across my desk at the time in 2005, and a little bit prior to that, with the crimes and the
suspects listed and the victims.” The expert opined, the “Sixth Street Norteno” is a
criminal street gang under section 186.22, and [Padilla] was a member.
The expert also testified about two specific crimes. Eduardo Vivero, who was a
documented Sixth Street Gangster when the expert did his research in 2006, was
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convicted of auto theft on August 14, 2002. Alejandro Ceja, a validated and documented
Sixth Street Gangster, was convicted of carjacking on January 14, 2005.
On cross-examination, the expert opined “Sixth Street Nortenos” is a criminal
street gang “[b]ased on my experience with gang members, that our records—first of all,
having two convictions is what we legally need. And, second of all, our database, even
though we have 28 people and probably 500 Norteno[s], and only 28 Sixth Street
Nortenos, that number is probably greater. And the people that claim Sixth Street are
also Nortenos. [¶] So if we open this up, his affiliation or those affiliations probably
aren’t just Sixth Street, they go to Nortenos, they go to the cause. They go to all the
Nortenos in Northern California to unite. [¶] So just because I only found two doesn’t
discount that, in my opinion, those 28 [members] are the 28 we know of, but the
hundreds that are—just claim Norteno, that haven’t been honest to the police or they
have allegiance to Norteno in general, makes me, in my opinion, believe that this is a
gang.” The expert said, “Sixth Street Nortenos are Nortenos. All the members that are
Sixth Street are Nortenos.” The expert opined Nortenos are a criminal street gang under
section 186.22, based on personal arrests he made of 50 to 100 Nortenos accused of
committing one of the enumerated offenses, on average three to six arrests per year over
his 13-year career.
[Padilla] argues the evidence revealed only two convictions of Sixth Street
Gangsters (August 2002 auto theft and January 2005 carjacking) and [Padilla’s]
conviction would make a third. [Padilla] argues that, by any stretch of the imagination,
three offenses among a purported 28-member gang over a 15 year period cannot
constitute consistent and repeated commission of crimes qualifying as primary activities
under section 186.22. [Padilla] argues there was even less evidence that all Nortenos
qualify as a criminal street gang, because the expert merely said he arrested 50 to 100
Nortenos in his 13-year career, without providing any details when they occurred or
whether they involved predicate crimes enumerated in section 186.22.
However, three offenses in 15 years for a small group is not insignificant.
Moreover, a specific number of predicate offenses is not the only way to satisfy the
statute. “Sufficient proof of the gang’s primary activities might consist of evidence that
the group’s members consistently and repeatedly have committed criminal activity listed
in the gang statute. Also sufficient might be expert testimony, as occurred in Gardeley,
supra, 14 Cal. 4th 605. There, a police gang expert testified that the gang . . . was
primarily engaged in the sale of narcotics and witness intimidation, both statutorily
enumerated felonies. . . . The gang expert based his opinion on conversations he had with
Gardeley and fellow gang members, and on ‘his personal investigation of hundreds of
crimes committed by gang members,’ together with information from colleagues in his
own police department and other law enforcement agencies. [Citation.]” (People v.
Sengpadychith (2001) 26 Cal. 4th 316, 324, italics omitted.)
In People v. Ortega (2006) 145 Cal. App. 4th 1344, this court found sufficient
evidence to establish Nortenos as a criminal street gang and rejected a defense claim that
the term Norteno was merely the geographical identity of a number of local gangs with
similar characteristics. (Id. at pp. 1355-1356.) The expert testified there were thousands
of Nortenos in Sacramento; they used the color red and the symbol XIV; their primary
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activities included murder, assault, carjacking, and other enumerated offenses; members
of different gangs worked together to commit crimes; and the expert testified about two
gang-related shootings. (Ibid.) Ortega said that, unlike People v. Valdez (1997) 58 Cal.
App. 4th 494, which stated Norteno was not the name of a gang (based on expert
testimony to that effect), in Ortega there was no expert testimony that Norteno is not the
name of a gang. (Ortega, supra, 145 Cal. App. 4th at p. 1356.)
People v. Williams (2008) 167 Cal. App. 4th 983, reversed a section 186.22
conviction because there was no evidence the defendant participated in any group other
than the Small Town Peckerwoods (STP) and insufficient evidence of a connection
between STP and any other Peckerwood group. (Id. at p. 987.) The expert testified the
Peckerwoods were a criminal street gang and smaller groups such as STP were factions.
However, his conclusion appeared to have been based on commonality of name and
ideology, rather than concerted activity or organizational structure. (Id. at p. 988.) He
said Peckerwoods were not organized like other criminal street gangs; Peckerwoods were
looser with less-defined structure. (Ibid.) Williams said: “Evidence of gang activity and
culture need not necessarily be specific to a particular local street gang as opposed to the
larger organization. [Citations.] This does not mean, however, that having a similar
name is, of itself, sufficient to permit the status or deeds of the larger group to be
ascribed to the smaller group.” (Id. at p. 987.) “[S]omething more than a shared
ideology or philosophy, or a name that contains the same word, must be shown before
multiple units can be treated as a whole when determining whether a group constitutes a
criminal street gang. Instead, some sort of collaborative activities or collective
organizational structure must be inferable from the evidence, so that the various groups
reasonably can be viewed as parts of the same overall organization.” (Id. at p. 988.)
Williams said it would be speculative to infer that the smaller and greater Peckerwood
groups shared more than an ideology for section 186.22 purposes, especially because the
word “peckerwood” has such an ideological or racial connotation in everyday parlance.
(Id. at pp. 988-989.)
Here, collaborative activities or collective organizational structure are inferable
from the evidence, including the expert testimony about Sixth Street Gang’s affiliation as
a Norteno subset, and the expert’s personal contacts with and review of police records of
Nortenos and Sixth Street Gangsters. The expert personally arrested well over 50 and up
to 100 Nortenos involved in section 186 .22 enumerated offenses, and those incidents
were spread out, averaging three to six per year.FN3 Although subsets label themselves by
street name, they do not confine themselves to their street, and it would be common for
Sixth Street Gangsters to hang out in other areas of the city. The expert testified Sixth
Street Gangsters shared the Nortenos’ color (red), symbols (XIV), and commission of
section 186.22 enumerated offenses. The affiliation was borne out by [Padilla’s] tattoos
labeling himself as both a Norteno (XIV) and a Sixth Street Gangster. The evidence
sufficed for section 186.22.
FN3. When the prosecutor later asked about arrests by other officers, the trial
court sustained an objection, stating that although the statute requires only
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commission of crimes, not convictions, arrests do not necessarily show
commission of crime.
[Padilla] cites In re Alexander L. (2007) 149 Cal. App. 4th 605, which said
“primary activities” in section 186.22 must mean something other than “the occasional
commission” of the enumerated crimes, and two crimes were not enough. (Id. at p. 613.)
However, in Alexander, the prosecution relied on the two crimes plus the expert’s
testimony about the gang’s other crimes, yet the expert merely testified he “knew” the
gang (Varrio Viejo) had been involved in certain crimes; he did not say how he knew.
(Id. at pp. 611-612.) Here, the expert testified he based his testimony on personal
investigations as well as conversations with gang members and review of other police
records.
[Padilla] also cites People v. Perez (2004) 118 Cal. App. 4th 151, which said
evidence of retaliatory shootings of a few individuals over the period of less than a week,
together with a beating six years earlier, was insufficient to establish that a group (the
Crazy Latin Boys) consistently and repeatedly committed criminal activity under section
186.22. (Id. at p. 160.) There, however, the six-year-old incident was outside section
186.22’s three year window.
We conclude substantial evidence supports the finding of primary activities
establishing a criminal street gang.
III. Substantial Evidence of Benefit to Gang
[Padilla] contends there was insufficient evidence that he shot Prado with the
specific intent to benefit the gang and promote criminal conduct by the gang, as required
to impose the section 186.22 enhancement. We disagree.
Section 186.22, subdivision (b), provides in part that “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, shall, upon conviction of that felony, in addition and
consecutive to the punishment prescribed for the felony or attempted felony of which he
or she has been convicted, be punished [by specified enhancements].”
[Padilla] argues the only evidence was the expert’s testimony that the shooter shot
as an act of revenge, and revenge was necessary for him to regain respect within the gang
and instill fear in the community. [Padilla] says the expert’s opinion that this was a
revenge shooting “stated nothing beyond the obvious,” but it was improper for the expert
to opine, based on conjecture, that the shooter intended to regain respect and instill fear.
[Padilla] claims there were no facts by which the expert could validly determine whether
the shooter was acting on his own behalf or on behalf of a gang.
However, there were such facts in this case—[Padilla’s] own words and actions.
Thus, [Padilla], wearing visible Norteno and Sixth Street gang tattoos on his face,
approached Prado on the street, accused him of being a rival gang member (“scrap”), hit
him once, and got hit back by Prado four times before bystanders broke it up. When
[Padilla] saw Prado at the party, [Padilla] made reference to the prior encounter by asking
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if Prado remembered him and said, “You’ll remember me now” as he pulled out the gun
and shot Prado.
[Padilla] says it is improper to allow a gang expert to testify about a gang
member’s specific intent. (People v. Ochoa (2009) 179 Cal. App. 4th 650; People v.
Ramon (2009) 175 Cal. App. 4th 843; In re Frank S. (2006) 141 Cal. App. 4th 1192;
People v. Killebrew (2002) 103 Cal. App. 4th 644, 651-659.) However, the cited cases
held the facts on which the expert based his testimony were insufficient to permit him to
construct an opinion about the defendant’s specific intent, and the facts did not show the
crime was gang-related as opposed to a “frolic and detour” by the individual. Ochoa
found insufficient evidence that two carjackings were gang-related, where the defendant
did not call out gang name, display gang signs, wear gang clothing, or engage in gang
graffiti while committing the offenses. In Ramon, the defendant and another gang
member were caught driving a stolen vehicle with a gun in gang territory, but there were
no facts from which the expert could discern they were acting on the gang’s behalf at the
time, as opposed to acting on their own behalf. In Frank S., there was no evidence that
the minor possessed a knife to benefit the gang other than the expert simply informing the
judge of her belief of the minor’s intent. (Id. at p. 1199.) The expert in Killebrew
testified that individuals in three cars knew there was a gun in two of the cars and jointly
possessed the guns for mutual protection. (Id. at p. 658.)
Here, in contrast, evidence of specific intent came from [Padilla] himself—his
words “remember me” at the time of the shooting, referencing the prior encounter in
which [Padilla] accused Prado of being a rival gang member, hit him, and got the worst
of it when Prado hit back. The expert merely explained gang culture. The initial gangrelated confrontation in which [Padilla] got the worst of a fistfight, would mean a loss of
respect for him. It is important for gang members to maintain power and instill fear
among other gang members and the community in general. Without fear from the
community, the gang loses its power. “[I]t’s hard to rule a neighborhood or a block or
keep the cops from coming or keep the citizens in general down, if they don’t fear those
people. If they are called upon and they are testifying and they are working with the
police and people are being prosecuted and there is not that fear, then it’s hard for them
to maintain an area or even a community in general to control.”
The federal cases cited by [Padilla] are also distinguishable. Thus, in Briceno v.
Scribner (9th Cir. 2009) 555 F.3d 1069, the only evidence indicated the defendant and
his companion committed robberies on a “frolic and detour” unrelated to the gang, to buy
Christmas presents. (Id. at pp. 1078, 1081 [federal court granted habeas corpus relief
because evidence in state court trial was insufficient to establish specific intent to benefit
gang].) Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, held the evidence was
insufficient to support a section 186.22 enhancement when the evidence merely showed
that a known gang member robbed a victim in an area known to be gang turf, from which
a gang expert inferred intent because the gang was “turf-oriented.” (Id. at pp. 11031104.) Aside from gang membership, the record was silent as to what criminal activity of
the gang was intended to be furthered by the robbery. (Ibid.)
Insofar as these federal cases held that section 186.22 requires proof that the
current offense was committed with intent to promote “other” criminal conduct in the
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future, California courts have disagreed, noting the plain language of section 186.22
requires a showing of specific intent to promote, further, or assist in “any” criminal
conduct, not “other” criminal conduct. (People v. Vasquez (2009) 178 Cal. App. 4th 347,
353-354; People v. Hill (2006) 142 Cal. App. 4th 770, 773-774; People v. Romero (2006)
140 Cal. App. 4th 15, 19.)
We conclude [Padilla] fails to show grounds to reverse the judgment.
Padilla, 2010 WL 4132367, at *7-12.
As articulated by the Supreme Court in Jackson, the constitutional standard for
sufficiency of the evidence is 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the
original); see McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) (reaffirming this standard). This
Court must therefore determine whether the California court unreasonably applied Jackson. In
making this determination, this Court may not usurp the role of the finder of fact by considering
how it would have resolved any conflicts in the evidence, made the inferences, or considered the
evidence at trial. Jackson, 443 U.S. at 318-19. Rather, when “faced with a record of historical
facts that supports conflicting inferences,” this Court “must presume–even if it does not
affirmatively appear in the record–that the trier of fact resolved any such conflicts in favor of the
prosecution, and defer to that resolution.” Id. at 326.
It is a fundamental precept of dual federalism that the States possess primary authority
for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982).
Consequently, although the sufficiency of the evidence review by this Court is grounded in the
Fourteenth Amendment, it must take its inquiry by reference to the elements of the crime as set
forth in state law. Jackson, 443 U.S. at 324 n.16. A fundamental principle of our federal system
is “that a state court’s interpretation of state law, including one announced on direct appeal of the
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challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546
U.S. 74, 76 (2005); see West v. AT&T, 311 U.S. 223, 236 (1940) (“[T]he highest court of the
state is the final arbiter of what is state law. When it has spoken, its pronouncement is to be
accepted by federal courts as defining state law . . . .”). “Federal courts hold no supervisory
authority over state judicial proceedings and may intervene only to correct wrongs of
constitutional dimension.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 345 (2006) (quoting Smith
v. Philips, 455 U.S. 209, 221 (1982)) (internal quotation marks omitted). It is through this lens
that this Court must view an insufficiency of the evidence claim.
In this case, Padilla’s arguments with regard to his legally insufficiency of the evidence
claim are nothing more than an attack on the testimony against him. But this Court is precluded
from either re-weighing the evidence or assessing the credibility of witnesses. Schlup v. Delo,
513 U.S 298, 330 (1995); Bruce v. Terhune, 376 F.3d 950, 957-58 (9th Cir. 2004). Under
Jackson, this Court’s role is simply to determine whether there is any evidence, if accepted as
credible by the trier of fact, sufficient to sustain conviction. Schlup, 513 U.S. at 330. In this
case, there was testimony that Padilla was a member of a criminal street gang and that he
committed the felony with the specific intent to benefit or promote that gang. In addition,
Padilla’s actions and words indicated that he intended to benefit the gang members.
Although it might have been possible to draw a different inference from the evidence and
any contradictions in testimony, this Court is required to resolve that conflict in favor of the
prosecution. See Jackson, 443 U.S. at 326. Padilla bears the burden of establishing by clear and
convincing evidence that the state court’s upholding of the jury’s factual findings against him
was erroneous. 28 U.S.C. § 2254(e)(1). He has failed to carry such burden. The record does not
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compel the conclusion that no rational trier of fact could have found proof that Padilla was a
member of a gang and acted with the intent to benefit that gang, especially considering the
double deference owed under Jackson and AEDPA. Padilla therefore cannot prevail on this
claim either.
V. CONCLUSION AND ORDER
Padilla is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain
a certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,
537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the
Ninth Circuit Court of Appeals. See FED. R. APP. P. 22(b); 9TH CIR. R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: December 15, 2014.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
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