                                    NOT FOR PUBLICATION                     FILED
                          UNITED STATES COURT OF APPEALS                     JUN 24 2016
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
                                    FOR THE NINTH CIRCUIT


    ROBERT DAVID JOHNSON,                            No.14-55905

          Petitioner - Appellant,                    D.C. No. 5:12-cv-01580-JFW-SS

     v.
                                                     MEMORANDUM*
    RAYMOND MADDEN,

          Respondent - Appellee.

                         Appeal from the United States District Court
                            for the Central District of California
                          John F. Walter, District Judge, Presiding

                              Argued and Submitted May 2, 2016
                                    Pasadena, California

Before: M. SMITH and NGUYEN, Circuit Judges, and WILKEN,** Senior District
Judge.

            Robert David Johnson appeals a district court order denying his habeas

corpus petition. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

            The California Supreme Court’s decision to deny Johnson’s ineffective


*
 This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
  The Honorable Claudia Wilken, Senior District Judge for the U.S. District Court
for the Northern District of California, sitting by designation.
assistance of counsel claim was not an unreasonable application of clearly

established federal law. 28 U.S.C. § 2254(d). To obtain relief on his state court

petition, Johnson was required to show “both that his counsel provided deficient

assistance and that there was prejudice as a result.” Harrington v. Richter, 562 U.S.

86, 104 (2011). A petitioner attempting to show that his counsel’s performance

was deficient must overcome “a strong presumption that counsel’s representation

was within the wide range of reasonable professional assistance.” Id. (internal

quotation marks omitted). And to show prejudice, the petitioner must demonstrate

that “[c]ounsel’s errors [were] so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.” Id. (internal quotation marks omitted). Under the

Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) , our review

of the state court’s decision is “doubly” deferential—that is, if there is “any

reasonable argument” that counsel’s performance was satisfactory, we must affirm.

Id. at 105.

      Here, we need not determine whether Johnson’s counsel provided

reasonable professional assistance; Johnson’s claim fails on the prejudice prong.

That is, Johnson fails to show that his counsel’s failure to consult a Riverside gang

expert deprived him of a fair and reliable trial. Much of Johnson’s argument turns

                                           2
on his view that he and his co-perpetrators committed the underlying robbery not

as gang members, but as childhood friends on their own frolic. He argues that a

defense gang expert’s testimony about the distinctions between MDK, MD13, and

RSSH would have undermined the state’s case that the crime was committed “in

association with a criminal street gang.” For several reasons, the California

Supreme Court could reasonably have rejected this argument.

      First, Johnson’s habeas expert adds little to the evidence already presented at

trial through the testimony of the state’s expert. For instance, the state’s expert

testified about MDK’s split into MD13 and RSSH, and about the racial identities

of the latter gangs. He further testified that MD13 and RSSH were separate gangs

and that Johnson was a member of RSSH while his co-perpetrators were members

of MD13. These are the same basic facts upon which Johnson now relies. Thus, the

California Supreme Court could reasonably have concluded that additional gang

expert testimony would not have changed the outcome of the case.

      Second, and more importantly, the distinctions between the gangs are far

from dispositive. Indeed, even if the jury had heard and credited all of the

testimony by Johnson’s expert, it still could have found that the robbery was

committed in association with either MDK or MD13. As for MDK, the evidence at

                                           3
trial undermined the habeas expert’s claim that MDK had ceased to exist by the

time of the robbery. This evidence included the victim’s testimony that the

perpetrators referred to MDK while committing the crime, as well as evidence that

one perpetrator continued to sign letters with “MDK” after his name.

      Moreover, even if it were true that MDK no longer existed, the evidence also

supported a finding that the crime was committed in association with MD13, which

descended from MDK. Because California’s gang enhancement applies to crimes

committed merely “in association with” a criminal street gang, it does not depend

on Johnson’s own membership in the gang or his intent to further the gang’s

interests. People v. Valdez, 55 Cal.4th 82, 132 (2012). Thus the jury could properly

have found that Johnson committed the crime in association with MD13 even

while he was a member of RSSH, and even if, as the habeas expert opines, RSSH

never would have agreed to Johnson’s working with MD13. Indeed, the value of

such an expert opinion is undermined by the simple fact that Johnson did commit a

crime with MD13 members despite his own gang affiliation. And although

Johnson portrays the robbery as a mere frolic unrelated to a gang, these co-

perpetrators were known by Johnson to belong to MD13. Ample evidence

therefore supported the conclusion that Johnson’s commission of robbery with

                                         4
these four co-perpetrators was “in association with” MD13. The California

Supreme Court could reasonably have determined that more expert testimony

about the relationship between these gangs would not have altered this conclusion.

      We are similarly unpersuaded by Johnson’s argument, relying on People v.

Prunty, 355 P.3d 480 (Cal. 2015), that a defense gang expert would have

highlighted the state’s failure to show that MD13 was a criminal street gang. While

the predicate acts were committed only by MDK, not by MD13, the state’s expert

testified that MD13 descended directly from MDK. In that respect, this case is

unlike Prunty, where the state sought to deem one gang a “criminal street gang” by

introducing evidence of predicate acts committed by gang subsets whose

relationship to the gang at issue was unproven. Id. at 81. Under those

circumstances, the court held that the state failed to show that the gang at issue had

committed the predicate acts necessary to deem it a criminal street gang. Id. (“The

critical shortcoming in the prosecution’s evidence was the lack of an associational

or organizational connection between the two alleged Norteño subsets that

committed the requisite predicate offenses, and the larger Norteño gang that Prunty

allegedly assaulted Manzo to benefit.”) Here, in contrast, the relationship between

MDK and MD13 was established at trial, and it was a direct lineage. The

                                          5
California Supreme Court could reasonably have determined that trial counsel’s

failure to contest the evidence that MD13 was a criminal street gang was not

prejudicial.

      AFFIRMED.




                                        6
                                                                           FILED
Johnson v. Madden, No. 14-55905
                                                                            JUN 24 2016
WILKEN, District Judge, dissenting:                                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

      The California gang enhancement applies when an individual commits a

felony “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.” Cal. Penal Code § 186.22(b)(1). Notably, the first

prong of the statute requires that the crime be committed in association with a

“criminal street gang” while the second requires that the defendant act with the

intent to further conduct by “gang members.”

      The fact that a defendant committed a crime with gang members does not

satisfy the first prong. Indeed, the California Supreme Court has noted that the

California State Legislature included the first prong to make “clear that a criminal

offense is subject to increased punishment under the [gang enhancement] only if

the crime is gang related.” People v. Albillar, 51 Cal. 4th 47, 60 (2010) (internal

quotation marks omitted). “Not every crime committed by gang members is

related to a gang” and “it is conceivable that several gang members could commit

a crime together, yet be on a frolic and detour unrelated to the gang.” Id. at 62

(internal citations omitted).

      While, in some cases, California courts have inferred that a crime was

committed “in association with” a criminal street gang when the defendant

                                           1
knowingly committed the crime with a “fellow gang member,” those cases all

involved members of the same gang acting together and many involved crimes

against rival gang members. See, e.g., id. at 61; People v. Leon, 161 Cal. App. 4th

149, 163 (2008); People v. Romero, 140 Cal. App. 4th 15 (2006). This case is

different. There was no clear evidence that any of the men accompanying Johnson

were members of the Riverside Skinheads (RSSH), the gang to which Johnson

belonged. Moreover, there was no evidence that the victim of the crime was a

member of a rival gang. That Johnson committed a crime with members of a

different gang, against a non-gang member, raises no inference that the crime was

gang-related.

      An expert witness the defense could have engaged would have testified that

members of the Riverside Skinheads and MD13, the gang affiliated with the

Mexican Mafia to which Johnson’s co-perpetrators belonged, might have

socialized with each other because they were childhood friends, but that members

of one of the gangs would never commit a crime in association with or for the

benefit of the other gang.

      Further, the prosecution made numerous erroneous statements of law with

respect to the “in association with” requirement in its closing arguments,

suggesting that the state need only prove that Johnson committed the crime in

association with gang members instead of in association with a criminal street


                                         2
gang. Defense counsel failed to explain the difference in her closing argument.

The majority appears to repeat the prosecutor’s mistake when it states that the

value of any expert testimony on behalf of the defense “is undermined by the

simple fact that Johnson did commit a crime with MD13 members despite his own

gang affiliation.”

      Even if the prosecution proved that Johnson committed the robbery in

association with a gang, it had to prove that the gang at issue met the statutory

requirements. The California Supreme Court has held that the gang enhancement

requires that

          the “criminal street gang” the prosecution proves to exist be the
          same gang that the defendant sought to benefit (or which directed
          or associated with the defendant in connection with the crime.)
          This “sameness” requirement means that the prosecution must
          show that the group the defendant acted to benefit [and] the group
          that committed the predicate offenses . . . is one and the same.

People v. Prunty, 62 Cal. 4th 59, 80-81 (2015). Here, the predicate acts were

committed by MDK and Johnson was a member of the Riverside Skinheads acting

with members of MD13. Accordingly, for Johnson’s offense to qualify for the

gang enhancement, the prosecution was required to prove “some associational or

organizational connection” uniting MDK and MD13. Id. at 72.

      The majority assumes that “direct lineage” between MDK and MD13 is

enough to satisfy Prunty’s sameness requirement. But the prosecution is required

to present evidence that they have an “ongoing relationship--the kind of
                                          3
relationship that amounts to being part of the same group.” Id. at 83. Such an

ongoing relationship would be impossible if, as a defense expert would have

testified unequivocally, MDK had ceased to exist as early as 2000, three years

before the robbery. Contrary to the majority’s view, this basic fact was not

provided by the prosecution’s expert. Nonetheless, his testimony that MDK did

exist at the time of the crime was weak. When asked, the expert said only that

MDK “still exists because the MD13 came from MDK and RSSH came from

MDK.” If the state's case is weak there is a greater likelihood that the result of the

trial would have been different.

      The other evidence of MDK’s continuing existence that the majority points

out was also weak. The robbery victim testified that at some point during the

approximately four and a half hours that Johnson and the other men were in his

apartment, one or more of the men “made reference to MDK.” This is not

evidence that MDK still existed. Nor is an undated letter signed by one of the

perpetrators with “MDK” after his name.

       It was crucial for effective counsel to oppose the gang enhancement

because its application had extreme consequences for Johnson’s sentence. It

increased the maximum sentence from a nine-year determinate sentence to a

fifteen-year to life indeterminate sentence, which in turn was doubled to a thirty-




                                          4
year to life sentence because the robbery was Johnson’s second “strike.”

Johnson’s total sentence was forty-three years to life.

      It would not have been inconsistent for the defense to argue both that

Johnson was factually innocent of the robbery and that the robbery was not

committed in association with a street gang, especially not with his former gang

MDK, which no longer existed. Johnson did not argue that he was not present at

the time of the robbery, but rather that he went to the victim’s apartment with his

friends to “party.” An argument that the gang enhancement should not apply

would similarly be based on an argument that Johnson was “partying” with his

friends, not intending to commit a crime in association with a criminal street gang.

      I would hold that it was both deficient and prejudicial for counsel to fail to

engage a gang expert familiar with gangs in Riverside and to fail to argue that the

crime was not committed in association with any criminal street gang, particularly

one that no longer existed. Any finding to the contrary would be an objectively

unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984).

Therefore, I would reverse the district court’s denial of the § 2254 petition and

remand with instructions to grant the writ unless the state retries the gang

enhancement issue or resentences without the enhancement.




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