                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 04 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JAMES DANIEL FUENTES,                            No. 09-56903

              Petitioner - Appellee,             D.C. No. 5:09-cv-01041-CJC-RZ

  v.
                                                 MEMORANDUM *
FERNANDO GONZALEZ, Warden,

              Respondent - Appellant.


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

                      Argued and Submitted October 14, 2011
                               Pasadena, California

Before: D.W. NELSON and CALLAHAN, Circuit Judges, and ERICKSON, Chief
District Judge.**

       Fernando Gonzalez, Warden, appeals the district court’s decision to grant

James Fuentes’s petition for habeas corpus. Fuentes was convicted in the




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Ralph R. Erickson, Chief District Judge for the U.S.
District Court for North Dakota, Fargo, sitting by designation.
California Superior Court of aiding and abetting Melecio Reyes in the first-degree

murder of Francisco Ferreira in 2003. We have jurisdiction over this appeal

pursuant to 28 U.S.C. §§ 1291 and 2253. We conclude that the California Court of

Appeal was objectively reasonable in upholding Fuentes’s conviction and

accordingly reverse the district court’s grant of Fuentes’s habeas petition.

      Fuentes’s petition is subject to the provisions of the Anti-Terrorism and

Effective Death Penalty Act (“AEDPA”), 28 U.S.C. §§ 2241-2255. Under Section

2254(d) of AEDPA, where a state court decides the merits of a petitioner’s

constitutional claim, a federal court may grant habeas relief with respect to that

claim only if the state decision:

      (1)    resulted in a decision that was contrary to, or involved an
             unreasonable application of, clearly established Federal law, as
             determined by the Supreme Court of the United States; or

      (2)    resulted in a decision that was based on an unreasonable
             determination of the facts in light of the evidence presented in the
             State court proceeding.

28 U.S.C. § 2254(d).

      “A state-court decision that correctly identifies the governing legal rule but

applies it unreasonably to the facts of a particular prisoner’s case certainly would

qualify as a decision ‘involv[ing] an unreasonable application of . . . clearly

established Federal law.’” Williams v. Taylor, 529 U.S. 362, 407-08 (2000). A

state court’s application of “clearly established Federal law . . . must be objectively

                                           2
unreasonable,” Lockyer v. Andrade, 538 U.S. 63, 75-76 (2002); see also Williams,

529 U.S. at 411, not just “incorrect or erroneous,” Lockyer, 538 U.S. at 75. The

“clearly established Federal law” upon which Fuentes and the district court relied

was Jackson v. Virginia, 443 U.S. 307 (1979), under which “the relevant question

is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Id. at 319 (emphasis in original).

      Since the district court granted Fuentes’s petition in October 2009, the

Supreme Court decided Harrington v. Richter, -- U.S. --, 131 S. Ct. 770 (2011),

Cullen v. Pinholster, -- U.S. --, 131 S. Ct. 1388 (2011), and Cavazos v. Smith, -- S.

Ct. --, 565 U.S. --, 2011 WL 5118826 (No. 10-1115, Oct. 31, 2011) (per curiam).

In Richter, the Court explained that an “unreasonable application” of federal law is

an objective test that turns on “whether it is possible that fairminded jurists could

disagree” that the state court decision meets the standards set forth in that law. If

fairminded jurists could so disagree, habeas relief is precluded. Richter, 131 S. Ct.

at 786. In Pinholster, the Court reiterated that AEDPA requires additional

deference to state court determinations on habeas, and that “[w]e have said time

and again that ‘an unreasonable application of federal law is different from an

incorrect application of federal law.’” Pinholster, 131 S. Ct. at 1410-11 (quoting

Richter, 131 S. Ct. at 785) (emphasis in Richter). In its most recent post-AEDPA

                                           3
habeas decision, Cavazos, the Supreme Court reversed this Court’s decision to

grant a writ on Jackson grounds, reiterating that juries, not judges, must weigh

competing evidence and decide whether the prosecution’s theory of a case is

correct. Cavazos, 2011 WL 5118826 at *1, 3-5.

      Under California law, a person aids and abets a crime where he (1) knows

the “unlawful purpose of the perpetrator,” (2) intends to commit, encourage, or

facilitate the crime, and (3) “by act or advice aids, promotes, encourages or

instigates” the crime. People v. Marshall, 15 Cal. 4th 1, 40 (1997) (quotation

marks and citation omitted). The trial evidence showed that in June 2003, Fuentes

accompanied Melecio Reyes, a fellow member of the West Side Verdugo (“WSV”)

gang, in a car to the house of Francisco and Ector Ferreira. (A year earlier Reyes

had shot Ector and a friend in a gang-related altercation near the Ferreiras’ house.)

Reyes and Fuentes drove past Francisco, who was working on his car in front of

his house, stopped, reversed, and pulled up next to Francisco. Reyes reached in his

lap, pulled up a gun, and began shooting at Francisco. Fuentes, who was in the

front passenger seat, leaned back at the time Reyes began to shoot. Reyes and

Fuentes then sped away and were stopped by the police a short time later; Fuentes

was still in the passenger seat but the gun used in the shooting was missing.

      The State’s gang expert testified regarding the structure, culture and

hierarchy of the WSV gang, including that Reyes would not have shot Francisco

                                          4
without first informing Fuentes, and that Fuentes would not have continued to

correspond with, and show respect for, Reyes after the shooting if Reyes had

“disrespected” Fuentes by keeping him in the dark. The gang expert also testified

that Fuentes, an active “up and comer” in the WSV gang, would gain status in the

gang as a result of the shooting, and that the shootings benefitted the WSV gang,

which was trying to establish turf in the area of the shooting. It was objectively

reasonable for the Court of Appeal to conclude that the trial evidence supported the

jury’s findings that Fuentes knew of Reyes’s plan to murder Francisco, and that he

intended to, and did, aid in that murder.

      The district court determined that certain alternative inferences were

reasonable, but neither Jackson nor AEDPA allows a habeas court to pick and

choose among reasonable inferences and substitute its own judgment for the jury’s.

See Jackson, 443 U.S. at 326 (“A federal habeas court faced with a record of

historical facts that supports conflicting inferences must presume—even if it does

not affirmatively appear in the record—that the trier of fact resolved any such

conflicts in favor of the prosecution, and must defer to that resolution.”); Cavazos,

2011 WL 5118826 at *1 (Jackson “makes clear that it is the responsibility of the

jury—not the court—to decide what conclusions should be drawn from evidence

admitted at trial.”); id. at *4-5 & n.1; Richter, 131 S. Ct. at 786 (explaining that



                                            5
AEDPA prohibits a court from “treat[ing] the unreasonableness question as a test

of its confidence in the result it would reach under de novo review”).

      This Court’s decisions in Mitchell v. Prunty, 107 F.3d 1337, 1342 (9th Cir.

1997), overruled on other grounds, Santamaria v. Horsley, 138 F.3d 1280 (9th Cir.

1998) (en banc), Garcia v. Carey, 395 F.3d 1099, 1103 (9th Cir. 2005), and

Briceno v. Scribner, 555 F.3d 1069, 1078-79 (9th Cir. 2009), do not support

granting Fuentes habeas relief. Not only do those cases pre-date Cavazos, Richter,

and Pinholster, they concerned evidence of gang membership or generic gang

expert testimony where there was no other evidence to prove intent. In this case,

the State presented evidence about Fuentes’s role in and actions during the

shooting, as well as specific and thorough gang expert testimony. Juan H. v. Allen,

408 F.3d 1262, 1276 (9th Cir. 2005), also is inapposite because there the defendant

“did not do or say anything before, during or after the shootings from which a

reasonable factfinder could infer an intent or purpose” to aid and abet in murder.

      We appreciate that the State’s case here relied heavily on circumstantial

evidence, and that this evidence may have supported inferences other than those

the jury drew. However, under the deference required by AEDPA, the only

relevant question is whether the Court of Appeal’s conclusion that sufficient

evidence supported Fuentes’s conviction was “so lacking in justification that there

was an error well understood and comprehended in existing law beyond any

                                          6
possibility for fairminded disagreement.” Richter, 131 S. Ct. at 786-87. Because

Fuentes has not met this high threshold, the district court erred in granting

Fuentes’s habeas petition.

      REVERSED.




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