                                                                           FILED
                           NOT FOR PUBLICATION                             FEB 23 2015

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



                            FOR THE NINTH CIRCUIT


THOMAS ESPARZA,                                  No. 13-55253

              Petitioner - Appellant,            D.C. No. 2:09-cv-01632-CJC-SS

  v.
                                                 MEMORANDUM*
DOMINGO URIBE, Jr., Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Cormac J. Carney, District Judge, Presiding

                       Argued and Submitted January 6, 2015
                               Pasadena California

Before: KOZINSKI, WARDLAW, and W. FLETCHER, Circuit Judges.

       California state prisoner Thomas Esparza appeals the denial of his 28 U.S.C.

§ 2254 petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C.




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

                                          1
§ 2253. We review de novo the district court’s decision to deny Esparza’s habeas

petition, see Clabourne v. Ryan, 745 F.3d 362, 370 (9th Cir. 2014), and we affirm.

      Esparza argues that the state court unreasonably applied the law clearly

established in Jackson v. Virginia, 443 U.S. 307 (1979), when it held that there was

sufficient evidence to support a gang enhancement under California Penal Code §

186.22(b)(1).

      Esparza cannot overcome the double layer of deference we must afford the

state court’s assessment of the sufficiency of the evidence. See Coleman v.

Johnson, 132 S. Ct. 2060, 2062 (2012) (“We have made clear that Jackson claims

face a high bar in federal habeas proceedings because they are subject to two layers

of judicial deference.”). The California Court of Appeal reasonably determined

that the gang expert supplied evidence sufficient for the jury to find that (1)

Esparza robbed the victim “for the benefit of, at the direction of, or in association

with any criminal street gang,” and (2) that he did so “with the specific intent to

promote, further, or assist in any criminal conduct by gang members.” Cal. Penal

Code. § 186.22(b)(1).

      First, the gang expert testified that Esparza was a member of the Varrio

Norwalk gang, that he went out of his way to commit the crime in Varrio Norwalk

territory, that it was a typical gang-related robbery, and that committing a robbery

                                           2
in his gang’s territory would benefit the gang by intimidating the community and

by obtaining money they could use to fund other criminal activity. A reasonable

juror could infer from this testimony that the robbery was for the benefit of, or in

association with, the Varrio Norwalk gang.

      Second, the jury could find, based on the same expert testimony, that

Esparza committed the robbery with the specific intent to aid in criminal conduct

by other gang members. The gang expert testified that Esparza went out of his way

to rob the taxi driver in gang territory and that such robberies earn money for the

gang to buy guns to use in illegal drug sales. Individual gang members are the

ones who buy and use guns in drug deals, and this constitutes illegal activity.

Unlike the expert in Garcia v. Carey, 395 F.3d 1099 (9th Cir. 2005), a case upon

which Esparza relies, the gang expert here also explained how Esparza’s

commission of a gang-related crime in his gang’s territory would advance gang

members’ other criminal activities: it would intimidate community members and

ward off rival gangs. As a result, the Court of Appeal did not unreasonably

determine that the jury could find beyond a reasonable doubt that Esparza acted

with the specific intent to aid gang members in criminal conduct.

      Esparza incorrectly argues that California courts have held that a defendant

must commit the charged criminal conduct in concert with another gang member to

                                           3
qualify for § 186.22(b)(1)’s enhancement. The Court of Appeal has rejected this

interpretation of state law. The California Supreme Court has not adopted it,

either. See People v. Rodriguez, 290 P.3d 1143, 1152 (Cal. 2012) (noting that “[a]

lone gang member...would not be protected from having [his or her] felony

enhanced by section 186.22(b)(1)”). Contrary to Esparza’s suggestion, People v.

Albillar does not hold that the jury can only impose the § 186.22(b)(1)

enhancement if the defendant acts together with another gang member to commit

the charged offense. 244 P.3d 1062, 1075-76 (Cal. 2010). Albillar says only that

the jury may apply the enhancement under this circumstance. Id.

      AFFIRMED.




                                         4
