                                                                              FILED
                    UNITED STATES COURT OF APPEALS
                                                                               APR 18 2017
                            FOR THE NINTH CIRCUIT                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS




JOSHUA JOEL ZAMORA GONZALES,                        No.   13-56498

              Petitioner-Appellant,                 D.C. No.
                                                    5:12-cv-00862-BRO-PLA
 v.                                                 Central District of California,
                                                    Riverside
CONNIE GIPSON, Warden,

              Respondent-Appellee.                  ORDER


Before: PREGERSON, D.W. NELSON, and CALLAHAN, Circuit Judges.


      Appellant’s petition for rehearing is GRANTED and the petition for

rehearing en banc is denied as moot. Judge Callahan votes to deny the petition for

rehearing and the petition for rehearing en banc.

      The memorandum disposition and dissent filed August 11, 2016, is

withdrawn. A memorandum disposition shall be filed concurrently with this

order. With the filing of the new memorandum disposition, the parties shall be

allowed to file petitions for rehearing and/or rehearing en banc.

      SO ORDERED.
                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            APR 18 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOSHUA JOEL ZAMORA GONZALES,                     No. 13-56498

              Petitioner - Appellant,            D.C. No. 5:12-CV-00862-BRO-
                                                 PLA
 v.

CONNIE GIPSON, Warden,                           MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                 Beverly Reid O’Connell, District Judge, Presiding

                      Argued and Submitted December 7, 2015
                               Pasadena, California

Before: PREGERSON, D.W. NELSON, and CALLAHAN, Circuit Judges.

      Joshua Joel Zamora Gonzales (“Gonzales”) appeals the district court’s

denial of his federal habeas petition, challenging his conviction for three counts of

attempted murder and one count of shooting from a motor vehicle on insufficiency

of the evidence grounds. With respect to each of these counts, the jury found true



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
that Gonzales “personally and intentionally discharged a firearm, a handgun, which

caused great bodily injury to” the victims. The jury also found that he committed

the crimes within the meaning of California’s gang enhancement statute. The trial

court sentenced Gonzales, who was just 17 years old when the crimes were

committed, to an aggregate term of 86 years and 8 months to life in state prison.

      We have jurisdiction pursuant to 28 U.S.C. § 2253. We review the district

court’s decision to grant or deny the habeas petition de novo, Solis v. Garcia, 219

F.3d 922, 926 (9th Cir. 2000) (per curiam), and the last-reasoned state court’s

adjudication of the habeas claim for whether it was contrary to or an unreasonable

application of clear Supreme Court precedent, Boyer v. Belleque, 659 F.3d 957,

964 (9th Cir. 2011). We reverse the district court and grant Gonzales’s petition for

habeas relief.

      “To prevail on an insufficiency of evidence claim, a habeas petitioner must

show that ‘upon the record evidence adduced at the trial[,] no rational trier of fact

could have found proof of guilt beyond a reasonable doubt.’” Briceno v. Scribner,

555 F.3d 1069, 1078 (9th Cir. 2009) (quoting Jackson v. Virginia, 443 U.S. 307,

324 (1979) (alteration in original)). Because the Antiterrorism and Effective Death

Penalty Act (“AEDPA”) applies to this petition, “we owe a ‘double dose of

deference’” to the state court’s judgment. Long v. Johnson, 736 F.3d 891, 896 (9th


                                           2
Cir. 2013) (quoting Boyer, 659 F.3d at 964). To grant habeas relief, we therefore

must also conclude that “the state court’s determination that a rational jury could

have found that there was sufficient evidence of guilt, i.e., that each required

element was proven beyond a reasonable doubt, was objectively unreasonable.”

Boyer, 659 F.3d at 965. While this is an “extremely high bar” to overcome, the bar

“is not insurmountable.” O’Laughlin v. O’Brien, 568 F.3d 287, 304 (1st Cir.

2009). Indeed, we have an “obligation under Jackson to identify those rare

occasions in which ‘a properly instructed jury may . . . convict even when it can be

said that no rational trier of fact could find guilt beyond a reasonable doubt[.]’”

United States v. Nevils, 598 F.3d 1158, 1167 (9th Cir. 2010) (quoting Jackson, 443

U.S. at 317 (alterations in original)).

      “Although our sufficiency of the evidence review is grounded in the

Fourteenth Amendment, we undertake the inquiry with reference to the elements of

the criminal offense as set forth by state law.” Juan H. v. Allen, 408 F.3d 1262,

1275 (9th Cir. 2005) (citing Jackson, 443 U.S. at 324 n.16). Here, the attempted

murder convictions required proof that Gonzales: (1) had the specific intent to kill;

and (2) committed a direct but ineffectual act toward accomplishing this goal.

People v. Millbrook, 166 Cal. Rptr. 3d 217, 229 (Cal. Ct. App. 2014); see also Cal.

Penal Code §§ 187, 664. The shooting from a motor vehicle conviction required


                                           3
proof that Gonzales: (1) willfully and maliciously discharged a firearm from a

motor vehicle (2) at another person other than an occupant of a motor vehicle. Cal.

Penal Code § 26100(c).

      The evidence against Gonzales consisted of the following: Gonzales wore a

baseball cap to a party, where he introduced himself as “Knuckles” and associated

with members of the Playboyz gang. After the party ended, shots were fired from

a dark colored vehicle that was leaving the area. Three victims were wounded.

Witnesses recalled seeing two shooters, one shooting from the backseat of the dark

colored vehicle and the other over the hood. No witness could identify the

shooters, but at least one believed the shooter in the backseat wore a baseball cap.

Gonzales admitted to hearing men on the street “talking shit” and to hearing shots

as he was leaving the party in the backseat of his friend’s light red Cadillac, but

witnesses testified that many cars were leaving the area at the time of the shooting.

Although the record does not reflect what prompted police to investigate Gonzales

as a suspect, police arrived at Gonzales’s house the following day and arrested

him. They found no weapons in his home or on his person. After a prolonged

interrogation at the police station, where Gonzales likely contacted numerous

contaminated surfaces, a gunshot residue test revealed only two gunshot residue

particles on Gonzales’s right hand.


                                           4
      Considering “the record evidence adduced at the trial,” Jackson, 443 U.S. at

324, we conclude that that evidence is constitutionally insufficient to support

Gonzales’s convictions.

      First, no eyewitness testified that Gonzales was the shooter or could identify

any of the occupants of the vehicle from which the shots were fired. One witness

explicitly stated that Gonzales was not the person who “gave the heads up or

what’s up” to the victims and that he was not the shooter. Two others specifically

testified that they did not see Gonzales in the car from which the shots were fired,

let alone see him with a gun.

      Second, testimony concerning Gonzales’s baseball cap and gang affiliation

does not distinguish him from other people present on the night of the shooting.

Various witnesses testified that many people (one witness thought it was 100)

attended the party. No witness testified that the shooter wore a baseball cap that

matched the one Gonzales wore that night. The evidence did not establish that a

person known as “Knuckles” was connected with the shooting, nor that the victims

were shot to benefit the Playboyz gang specifically. Evidence of gang affiliation

alone cannot constitute sufficient grounds for conviction. See United States v.

Garcia, 151 F.3d 1243, 1244 (9th Cir. 1998).




                                          5
      Third, witnesses’ descriptions of the car from which the shots were fired did

not match descriptions of the car in which Gonzales claimed he was a passenger.

All witnesses stated that the vehicle from which the shots were fired was black or

dark colored, but Gonzales consistently stated that he left the party in his friend’s

light red Cadillac. He also repeatedly denied ever shooting a gun or seeing anyone

fire a gun from the car he was in.

      Fourth, although Gonzales stated during his police station interview that he

was the rear passenger in a car that drove by some men on the street who were

“talking shit” and that he later heard gunshots, he did not clearly admit that he

exchanged words with or motioned to anyone from the backseat of his friend’s

light red Cadillac. At one point during the interview, Gonzalez explicitly denied

saying anything to the men on the street. Further, witnesses testified that numerous

cars passed by the victims before the shooting occurred.

      Fifth, the two particles of gunshot residue on Gonzales’s right hand do not

connect him to any gun fired on the night of the shooting. The police never located

a gun matching the shell casings found at the scene of the shooting. Further, the

lead detective used a gunshot residue test kit to collect the particles of gunshot

residue from Gonzales 12 hours after the shooting – after police allowed Gonzales

to go to the bathroom and wash his hands when he arrived at the police station.


                                           6
The prosecution’s expert (who was not the one who administered the gunshot

residue test) expressed surprise that the particles survived, testifying that he

“would expect the 12 hours . . . to remove all of [the particles] and washing at that

point to kind of finish the job.” The expert also testified that it was just as likely

the particles came from contacting a surface contaminated with gunshot residue as

from firing a firearm, handling a firearm, or being in close proximity to a

discharged firearm.

        Sixth, despite a thorough search, police officers found no weapons, bullets,

gun magazines, gun cleaning devices, or other firearm paraphernalia at Gonzales’s

home.

        “In conducting our inquiry, we are mindful of the deference owed to the trier

of fact and, correspondingly, the sharply limited nature of constitutional

sufficiency review.” Juan H., 408 F.3d at 1275 (citations and internal quotation

marks omitted). However, “[o]ur deference . . . is not without limit.” Id. “We

have held, for example, that evidence is insufficient to support a verdict where

mere speculation, rather than reasonable inference, supports the government’s

case[.]” Nevils, 598 F.3d at 1167; see also O’Laughlin, 568 F.3d at 301 (“A

reviewing court should not give credence to evidentiary interpretations and

illations that are unreasonable, insupportable, or overly speculative.” (citation and


                                            7
alterations omitted)). Where a defendant’s conduct is consistent with both guilt

and innocence, the government has the burden to “produce[] evidence that would

allow a rational trier of fact to conclude beyond a reasonable doubt that the

government’s explanation of [the defendant’s] actions, rather than [the

defendant’s] innocent explanation[,] . . . is the correct one.” United States v.

Bautista-Avila, 6 F.3d 1360, 1363 (9th Cir. 1993).

      “Circumstantial evidence and inferences drawn from it may be sufficient to

sustain a conviction. However, mere suspicion or speculation cannot be the basis

for creation of logical inferences.” United States v. Lewis, 787 F.2d 1318, 1323

(9th Cir. 1986) ( citations omitted); see also Juan H., 408 F.3d at 1279

(“Speculation and conjecture cannot take the place of reasonable inferences and

evidence . . . .”). Such is the case here. Even resolving all conflicting factual

inferences in favor of the prosecution, as we must do under Jackson, 443 U.S. at

326, the evidence does not permit any rational trier of fact to conclude that

Gonzales was guilty beyond a reasonable doubt.

      Gonzales’s convictions rest on a speculative and weak chain of inferences

that he was the shooter and that he personally discharged a firearm. As the

California Court of Appeal explained:




                                           8
      [W]itnesses testified that the rear passenger in a moving car shot at them.
      Furthermore, although the victims could not identify defendant as the
      shooter, another witness . . . identified defendant as the person who
      introduced himself to her as “Knuckles” at the . . . party and who was
      dressed like a Playboyz gang member and associating with other gang
      members. In conjunction with [this witness’s] testimony are defendant’s
      admissions to the police that he attended the party, dressed as she described
      him, and that he was in a car, passing by a group of men on the street at the
      time of the shooting. The foregoing evidence, combined with defendant’s
      positive gunshot residue test, is sufficient to establish . . . defendant’s
      identity as the shooter.

      This evidence is not inconsistent with the possibility that Gonzales was the

shooter. However, taken individually or collectively, these pieces of circumstantial

evidence do not establish the inference that Gonzales was the shooter beyond a

reasonable doubt. We hold that the California Court of Appeal unreasonably

determined that a rational jury could have found sufficient evidence of guilt.

      The evidence in this case is not merely “far from overwhelming,” as the

magistrate judge observed. Rather, it is constitutionally insufficient. Accordingly,

viewing the evidence in the light most favorable to the prosecution as required by

Jackson, and with deference to the state court decision as required by AEDPA, we

hold that no rational trier of fact could have found proof of Gonzales’s guilt

beyond a reasonable doubt and that the California Court of Appeal’s conclusion

that the circumstantial evidence was sufficient to support Gonzales’s convictions

was objectively unreasonable.


                                          9
      We reverse the judgment of the district court and remand the case to the

district court with instructions to grant the petition for a writ of habeas corpus.

      REVERSED and REMANDED.




                                           10
Gonzales v. Gipson, No. 13-56498                                           FILED
CALLAHAN, J., dissenting.                                                  APR 18 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
      In finding the evidence constitutionally inadequate to sustain Joshua

Gonzales’s convictions for attempted murder and shooting from a motor vehicle,

the majority improperly substitutes its view of the evidence for that of the

California Court of Appeal. In doing so, the majority commits the exact error for

which the Supreme Court has repeatedly chastised us. See Davis v. Ayala, 135 S.

Ct. 2187, 2202 (2015) (reminding us that “[t]he role of a federal habeas court is to

guard against extreme malfunctions in the state criminal justice systems, not to

apply de novo review of factual findings and to substitute its own opinions . . . .”)

(citation and quotation omitted)). I therefore respectfully dissent.

      In refusing to defer to the Court of Appeal, the majority pays only lip service

to the “double dose of deference” required under the AEDPA standard of review.

Under AEDPA, a sufficiency of the evidence claim “face[s] a high bar in federal

habeas proceedings because [it is] subject to two layers of judicial deference.”

Coleman v. Johnson, 566 U.S. 650, 132 S. Ct. 2060, 2062 (2012) (per curiam).

“First, on direct appeal, ‘it is the responsibility of the jury—not the court—to

decide what conclusions should be drawn from evidence admitted at trial. A

reviewing court may set aside the jury’s verdict on the ground of insufficient

evidence only if no rational trier of fact could have agreed with the jury.’” Id.

                                          1
(quoting Cavazos v. Smith, 565 U.S. 1, 132 S. Ct. 2, 4 (2011) (per curiam)). This

inquiry requires “viewing the evidence in the light most favorable to the

prosecution . . . .” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “And second,

on habeas review, ‘a federal court may not overturn a state court decision rejecting

a sufficiency of the evidence challenge simply because the federal court disagrees

with the state court. The federal court instead may do so only if the state court

decision was objectively unreasonable.’” Coleman, 132 S. Ct. at 2062 (quoting

Cavazos, 565 U.S. at 4).

      The evidence of Gonzales’s guilt is more than sufficient to support the jury’s

conclusion that Gonzales was guilty of attempted murder and shooting from a

vehicle. The jury heard evidence that:

       • Gonzales and two other individuals were in a car in the area at the
       time of the shooting.
       • Gonzales was seated in the backseat of the car in which he was a
       passenger.
       • Gonzales told the police that he saw some men on the street “talking
       shit” and “mad[-dogging] some other fool” when a car backed up
       toward them.
       • Gonzales exchanged some words with the men on the street, who
       began to approach the car he was in.
       • Gonzales claimed that he heard shooting as the car he occupied
       drove away, but denied that any shots were fired from his car.
       • One person shot from the back seat of the car in question, and a
       front passenger got out of the car and fired a handgun from over the
       hood.

                                          2
        • Two different caliber shell casings were found at the scene.
        • Prior to the shooting, a person in the vehicle asked the victims for
        their gang affiliation.
        • On the night in question, Gonzales as wearing a baseball cap
        featuring the Pirates “P” logo in support of the Playboyz gang.
        • A person in the backseat of the car from which shots were fired was
        wearing a baseball cap.
        • At the party, there was a dispute that may have been gang-related,
        and Gonzales was “mingled” in with its participants.
        • Gonzales tested positive for gunshot residue during his interview
        with police the next day.
        • In his interview with the police, Gonzales continually denied
        participation in the shooting, while at the same time expressing his
        fear of retaliation.
      There may be alternative explanations for what happened the night of the

shootings and for the presence of gunshot residue on Gonzales’s hands. But, faced

with these facts, it can hardly be said that “no rational trial of fact could have found

proof of guilt beyond a reasonable doubt.” Briceno v. Scribner, 555 F.3d 1069,

1078 (9th Cir. 2009) (quoting Jackson, 443 U.S. at 324). Indeed, the California

Court of Appeal stated:

        [I]t is undisputed that someone committed a crime by firing a gun
        from a car at the three wounded victims. The witnesses testified that
        the rear passenger in a moving car shot at them. Furthermore,
        although the victims could not identify defendant as the shooter,
        another witness, Yesenia, identified defendant as the person who
        introduced himself to her as “Knuckles” at the Colton party and who
        was dressed like a Playboyz gang member and associating with other
        gang members. In conjunction with Yesenia’s testimony are
        defendant’s admissions to the police that he attended the party,
        dressed as she described him, and that he was in a car, passing by a
                                         3
          group of men on the street at the time of the shooting. The foregoing
          evidence, combined with defendant’s positive gunshot residue test,
          is sufficient to establish the corpus delicti of defendant’s four crimes
          and defendant’s identity as the shooter. Similarly, substantial
          evidence supports the jury’s finding that defendant was an occupant
          of the car from which the shots were fired. Sufficient evidence
          supports defendant’s three convictions for attempted murder and one
          conviction for shooting from a motor vehicle.

      This determination is not “objectively unreasonable.”1 Boyer v. Belleque,

659 F.3d 957, 965 (9th Cir. 2011). Rather than come to grips with what the

prosecution’s evidence against Gonzales was and the Court of Appeal’s reasons for

finding it constitutionally sufficient, the majority, engaging in a de novo review,

finds fault in what the evidence against Gonzales was not. See Mem Dispo at 5–7.

For example, the majority looks to the testimony of the gunshot residue expert to

dismiss the significance of the presence of two particles of gunshot residue on

Gonzales’s hands. This view of the evidence directly conflicts with the repeated

direction that our task is not to determine “whether the evidence excludes every

hypothesis except that of guilt . . . .” United States v. Nevils, 598 F.3d 1158, 1165

(9th Cir. 2010). Viewed in the light most favorable to the prosecution, the




      1
        To the contrary, not only did twelve jurors find Gonzales guilty beyond a
reasonable doubt based on these facts, five judges—three Justices of the California
Court of Appeal, the Magistrate Judge, and the District Judge—have all agreed that
this evidence was sufficient to permit a “rational trial of fact [to find] proof of guilt
beyond a reasonable doubt.” Briceno, 555 F.3d at 1078.
                                          4
presence of gunshot residue on Gonzales’s hands the morning following the

shooting is strong evidence of his guilt.

      The majority further errs in faulting the evidence supporting Gonzales’s

conviction as resting on a “speculative and weak chain of inferences.” See Mem

Dispo at 7–8. This conclusion requires turning a blind eye to the direct evidence of

Gonzales’s guilt, which includes not only Gonzales’s own admission to the police

that he was at the scene of the shooting, but also eye-witness testimony about the

shooting and the shooter’s appearance. 2 The majority further ignores that, even if

the evidence was only circumstantial, such evidence and the “inferences drawn

from it may be sufficient to sustain a conviction.” Ngo v. Giurbino, 651 F.3d

1112, 1114 (9th Cir. 2011) (quoting Walters v. Maass, 45 F.3d 1355, 1358 (9th

Cir. 1995)). It is therefore the majority’s decision, and not Gonzales’s conviction,

that is grounded in “mere suspicion or speculation.” United States v. Lewis, 787

F.2d 1318, 1323 (9th Cir. 1986). This is exactly what AEDPA prohibits.

      Applying the AEDPA standard of review, as directed by the Supreme Court,

I would find that the Court of Appeal’s determination that a rational trier of fact

could agree with the jury was objectively, and eminently, reasonable. See



      2
         The majority’s discussion of the inferences that may be drawn when the
evidence of guilt is only circumstantial is therefore inapposite. See Mem Dispo at
8 (citing United States v. Bautista-Avila, 6 F.3d 1360, 1363 (9th Cir. 1993); United
States v. Lewis, 787 F.2d 1318, 1323 (9th Cir. 1986)).
                                           5
Coleman, 132 S. Ct. at 2062. This conclusion is inescapable when the evidence

presented at trial is viewed—as it must be—in the light most favorable to the

prosecution. Jackson, 443 U.S. at 319. Both a magistrate judge and a district

judge, applying the correct AEDPA standard of review, so found. In reversing the

district court’s decision, the majority allows Gonzales—a defendant found guilty

of attempted murder beyond a reasonable doubt—to walk free.

      I respectfully dissent from the majority’s decision to reverse the district

court and grant Gonzales’s petition for a writ of habeas corpus.




                                          6
