                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                               MAR 31 2014

                                                                            MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS

JOSE CRUZ,                                        No. 11-56045

              Petitioner - Appellant,             D.C. No. 2:10-cv-08392-VBF-
                                                  MLG
  v.

CONNIE GIPSON, Warden,                            MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                        for the Central District of California
                  Valerie Baker Fairbank, District Judge, Presiding

                        Argued and Submitted March 5, 2014
                               Pasadena, California

Before: PREGERSON, PAEZ, and HURWITZ, Circuit Judges.


       Jose Cruz appeals the district court’s denial of his petition under 28 U.S.C. §

2254 for a writ habeas corpus, challenging the jury’s finding that he committed a

felony “for the benefit of, at the direction of, or in association with any criminal




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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). We affirm.

      Cruz argues that the jury’s finding was not sufficiently supported by the

evidence, as required by Jackson v. Virginia, 443 U.S. 307, 319 (1979). On habeas

review, sufficiency-of-the-evidence claims must overcome two layers of deference.

Juan H. v. Allen, 408 F.3d 1262, 1274–75 (9th Cir. 2005); see also Coleman v.

Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam). First, a reviewing court

defers to the factfinder’s resolution of all conflicting evidence, overturning the

jury’s verdict “only if no rational trier of fact could have agreed with the jury.”

Johnson, 132 S. Ct. at 2062. Second, a habeas court must sustain a state court

decision rejecting a sufficiency-of-the-evidence challenge unless the decision

reflects an unreasonable application of the Jackson standard. Juan H., 408 F.3d at

1274–75; see also Johnson, 132 S. Ct. at 2062.

      In the last-reasoned state court decision, the California Court of Appeal

explained that the gang expert’s testimony that “it is MS13’s practice to discourage

crimes in its territory by individuals who are not members of MS13,” supported an

inference that Cruz and Vicente Perez “would have a strong interest in learning

whether the other was a gang member before committing a crime with him in gang

territory.” People v. Cruz, No. B211979, 2009 WL 4681814, at *4 (Cal. Ct. App.


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Dec. 10, 2009). In light of the location of the crime, the jury could reasonably

infer that Cruz knew Perez was a member of MS13 and was also an MS13

member. Moreover, the jury was entitled to credit the gang expert’s explanation

that the manner in which Cruz and Perez committed the robbery indicates that Cruz

had some status over Perez within the gang because a non-member or a

subordinate would not order an MS13 member to hand over a weapon.

Furthermore, the type of crime and Cruz’s gang tattoos also buttress the conclusion

that he is a member of MS13.

      It was neither contrary to, nor an unreasonable application of, the Jackson

standard to conclude, based on this evidence, that Cruz and Perez “came together

as gang members” to commit the offense, satisfying the “in association with”

provision of California Penal Code section 186.22(b)(1). People v. Albillar, 119

Cal. Rptr. 3d 415, 427 (Cal. 2010). The jury was not required to accept Cruz’s

alternative theory of the case. See Emery v. Clark, 643 F.3d 1210, 1214 (9th Cir.

2011) (explaining that the jury was entitled to disagree with the defendant’s

version of events and agree with the prosecution that the defendant’s explanation

was “implausible”).

      Sufficient evidence also supports the inference that Cruz knew Perez was a

member of MS13 and intended to help Perez commit the robbery. See People v.


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Cruz, 2009 WL 4681814, at *5. Nothing more is required to satisfy the specific

intent requirement of California Penal Code section 186.22(b)(1). See Albillar,

119 Cal. Rptr. 3d at 431 (explaining that the statute requires only “the specific

intent to promote, further, or assist criminal conduct by gang members” and

“[t]here is no statutory requirement that . . . ‘criminal conduct by gang members’

be distinct from the charged offense” or that the conduct be a “gang-related

crime”); see also Emery, 643 F.3d at 1215.

      AFFIRMED.




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