                                                                                FILED
                            NOT FOR PUBLICATION                                 MAR 19 2015

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



                            FOR THE NINTH CIRCUIT


PATRICK E. NOEL                                   No. 12-16679

              Petitioner - Appellant,             D.C. No. 3:08-cv-03777-EMC,

  v.

GREG LEWIS, Warden                                MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Edward M. Chen, District Judge, Presiding

                       Argued and Submitted October 7, 2014
                             San Francisco, California

Before: W. FLETCHER, and WATFORD, Circuit Judges, and DUFFY, District
Judge.**

       Patrick Noel (“Noel”) appeals the district court’s denial of his petition for a

writ of habeas corpus under 28 U.S.C. § 2254. We review de novo the district

court’s denial of Noel’s petition. Clabourne v. Ryan, 745 F.3d 362, 370 (9th Cir.


       *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
         The Honorable Kevin Thomas Duffy, United States District Judge for the
Southern District of New York, sitting by designation.
2014).

      Noel was convicted of nine separate felony counts for offenses committed

during a domestic dispute and a drive-by shooting of his cousin on November 26,

2003, in Mendocino County, California. Included among these counts was felony

participation in a criminal street gang under California Penal Code § 186.22(a).

Additionally, the information charging Noel included a sentencing enhancement

under California Penal Code § 186.22(b)(1), alleging that the counts related to the

drive-by shooting were committed “with the specific intent to promote, further, or

assist in any criminal conduct by gang members.” At trial, the prosecution

presented direct evidence that Noel was a member of the Norteños, a criminal gang

active in Mendocino County, and expert testimony that the attempted murder of

Noel’s cousin could have been related to his membership in that gang.

      Noel appeals two aspects of the district court’s denial of his petition. First,

he contends that the evidence presented at trial was constitutionally insufficient to

support a conviction for participation in a criminal street gang and the California

Court of Appeal unreasonably applied clearly established federal law. Second, in

an issue certified after oral argument, Noel alleges that his due process right to a

fair trial was violated because the state trial court admitted irrelevant, unfairly

prejudicial gang evidence.


                                           -2-
      Noel’s first claim for habeas relief can only succeed if any fair-minded

jurist, “viewing all the evidence in the light most favorable to the prosecution,”

would conclude that “no rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Emery v. Clark, 643 F.3d 1210,

1213 (9th Cir. 2011) (per curiam) (citing Jackson v. Virginia, 443 U.S. 307, 319,

324 (1979)). “Insufficient evidence claims are reviewed by looking at the elements

of the offense under state law.” Id. at 1214 (citing Jackson, 443 U.S. at 324 n.16).

      The California Court of Appeal concluded that Noel’s gang participation

conviction was supported by sufficient evidence under then-binding state court

precedent. To prove a gang participation offense, prosecutors must show that the

defendant “willfully promote[d], further[ed], or assist[ed] in any felonious criminal

conduct by members of that gang.” Cal. Penal Code § 186.22(a). After the

California Court of Appeal’s decision in Noel’s case, the California Supreme Court

stated that § 186.22(a) requires that the predicate felony be committed by at least

two members of the same gang. People v. Rodriguez, 290 P.3d 1143, 1147–48

(Cal. 2012); see also id. at 1151 n.8 (specifically disapproving of California Court

of Appeal decisions that permitted conviction for gang participation based on

conduct committed alone). Prosecutors had not presented evidence that any other




                                          -3-
member of Noel’s gang participated in the drive-by shooting with Noel.1 Thus,

there was no evidence that could have supported a gang participation conviction.

See id. at 1146–48. Therefore, the California Court of Appeal’s decision on Noel’s

gang participation conviction under California Penal Code § 186.22(a) is contrary

to clearly established federal law, and we reverse the judgment of the district court

in this regard. See Jackson, 443 U.S. at 319.

      Next, we consider Noel’s contention that his due process rights were

violated by the introduction of gang evidence. Noel argues that, given the

insufficiency of the evidence as a matter of law regarding his conviction for gang

participation under California Penal Code § 186.22(a) and the trial judge’s decision

to set aside the jury’s finding on the gang enhancements under California Penal

Code § 186.22(b)(1), his trial was fundamentally unfair and his due process rights

were violated.

      To obtain federal habeas relief based upon admission of evidence in state

court, the petitioner must show that the admission of the evidence was so

prejudicial as to deny the petitioner his right to due process and a fair trial. See


      1
         Respondent argues unconvincingly that Noel failed to fairly present this
claim in the state courts or in the district court. A careful reading of the district
court opinion, the California Court of Appeal decision denying Noel’s appeal, and
his pleadings in each court show that his claim rested, in varying degrees, on the
fact that he committed the offenses underlying the gang participation charge alone.
                                          -4-
Romano v. Oklahoma, 512 U.S. 1, 12 (1994). “Only if there are no permissible

inferences the jury may draw from the evidence can its admission violate due

process.” Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991).

      Noel has failed to meet his burden. As the California Supreme Court noted:

      Section 186.22(a) and section 186.22(b)(1) strike at different things. The
      enhancement under section 186.22(b)(1) punishes gang-related conduct,
      i.e., felonies committed with the specific intent to benefit, further, or
      promote the gang. . . . [W]ith section 186.22(a), the Legislature sought
      to punish gang members who acted in concert with other gang members
      in committing a felony regardless of whether such felony was gang-
      related.

People v. Rodriguez, 290 P.3d 1143, 1152 (Cal. 2012) (internal quotation marks

and citations omitted). Even though Noel could not have been convicted of the

gang participation offense under section 186.22(a) because he committed his

crimes alone, he could have been subject to the enhancement in California Penal

Code § 186.22(b)(1). See id. (“A lone gang member who commits a felony will

not go unpunished; he or she will be convicted of the underlying felony. Further,

such a gang member would not be protected from having that felony enhanced by

section 186.22(b)(1) . . . .”). At Noel’s trial, his former girlfriend testified that

Noel believed that his cousin was a police informant. Noel’s cousin, the target in

Noel’s attempted drive-by shooting, testified that Noel told him that Noel was a

gang member. Noel’s former girlfriend also testified that Noel made his affiliation


                                           -5-
with the Norteños known. The gang expert testified that Noel had admitted his

membership in the Norteños during an interview with the expert in 2002.

According the the gang expert, Noel’s attempt to shoot his cousin could have

benefitted Noel within the gang and could have also benefitted the gang itself.

This evidence established a possible motive for the shooting—Noel wanted to

punish his cousin for snitching—and permitted an inference that the shooting was

gang-related. See Windham v. Merkle, 163 F.3d 1092, 1104 (9th Cir. 1998).

Though the trial judge set aside the jury’s finding on the enhancement, that ruling,

in and of itself, does not establish that there were no permissible inferences to be

drawn from the gang evidence. Noel’s due process rights to a fair trial were not

violated by admission of the gang evidence, from which permissible inferences

about Noel’s motive could have been drawn, and we affirm the judgment of the

district court in this regard.

       This matter is remanded to the district court with instructions to grant the

writ consistent with this disposition. Each party shall bear its own costs.

       AFFIRMED in part; REVERSED in part and REMANDED.




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