                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                              OCT 31 2011

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

MICHAEL PETER HERRERA,                           No. 08-56837

              Petitioner - Appellant,            D.C. No. 2:08-cv-2410-JFW-CT

  v.
                                                 MEMORANDUM*
KELLY HARRINGTON, Warden,

              Respondent - Appellee.


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

                      Argued and Submitted October 13, 2011
                               Pasadena, California

Before: PREGERSON and BYBEE, Circuit Judges, and DAVIDSON**, Senior
District Judge.**

       Petitioner Michael Peter Herrera, a California state prisoner, appeals the

district court’s denial of his 28 U.S.C. § 2254 habeas petition. We have

jurisdiction under 28 U.S.C. § 2253. We affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Glen H. Davidson, Senior District Judge for the U.S.
District Court for the Northern District of Mississippi, sitting by designation.
      Herrera argues that the evidence presented at his state trial was insufficient

to permit the jury to find that the Santa Monica gang’s “primary activities”

involved a crime enumerated in California’s gang enhancement statute. See Cal.

Penal Code § 186.22; People v. Sengpadychith, 27 P.3d 739, 744 (Cal. 2001)

(holding that an enumerated crime is a gang’s “primary” activity when it is one of

the gang’s “‘chief’ or ‘principal’ occupations”).

      In Jackson v. Virginia, 443 U.S. 307, 309 (1979), the Supreme Court held

that when the claim is made that a person has been convicted in state court upon

insufficient evidence, the inquiry is whether, “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.” Jackson, 443 U.S. at

319. Moreover, because Herrera is a state prisoner challenging his conviction in

federal court, he must also show that the California state court was “objectively

unreasonable” in denying his sufficiency of the evidence claim. Juan H. v. Allen,

408 F.3d 1262, 1275 n.12 (9th Cir. 2005).

      Here, the California state court reasonably applied Jackson because a

rational trier of fact could have found that the Santa Monica gang’s “primary

activities” included at least one of those listed in California Penal Code

§ 186.22(e).


                                          2
      Next, Herrera argues that the state trial court erred by failing to instruct the

jury on the definition of “primary activities” as found in California’s model jury

instructions. The phrase “primary activities” is sufficiently clear such that an

average juror would understand its meaning. See United States v. Tirouda, 394

F.3d 683, 688–89 (9th Cir. 2005) (“No prejudice results from a district court’s

failure to define a concept ‘within the comprehension of the average juror.’”

(quoting United States v. Dixon, 201 F.3d 1223, 1231 (9th Cir. 2000)). The

California Court of Appeal therefore did not unreasonably apply Supreme Court

precedent in denying Herrera’s challenge to the jury instructions.

      AFFIRMED.




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