                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 26 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


WILSON C. ORTEGA,                                No.    16-55927

              Petitioner-Appellant,              D.C. No.
                                                 2:12-cv-09562-PSG-RAO
 v.

SCOTT KERNAN, Director of                        MEMORANDUM*
Corrections,

              Respondent-Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                        Argued and Submitted July 10, 2018
                               Pasadena, California

Before: BERZON and N.R. SMITH, Circuit Judges, and CASTEL,** District
Judge.

      Petitioner Wilson Ortega appeals the district court’s denial of his habeas

petition challenging his California state court convictions for committing assault


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable P. Kevin Castel, United States District Judge for the
Southern District of New York, sitting by designation.
with a firearm, Cal. Penal Code § 245(a)(2); making criminal threats, id. § 422;

threatening a witness, id. § 140(a); and committing false imprisonment, id. § 236.

We affirm.

      We need not, and so do not, decide whether the California Supreme Court

addressed the merits of Ortega’s ineffective assistance of counsel claim. Instead,

we conclude that the California Supreme Court’s rejection of Ortega’s ineffective

assistance of counsel claim was “correct under de novo review and therefore

necessarily reasonable under the more deferential AEDPA standard of review.”

Berghuis v. Thompkins, 560 U.S. 370, 389 (2010). Ortega’s counsel’s allegedly

deficient failure to object to the government’s gang expert’s description of other

homicide crimes committed by two North Hollywood Boyz members, Luis Vega

and Jose Orozco, could not have prejudiced Ortega under any standard of review.

See Strickland v. Washington, 466 U.S. 668, 687 (1984).

      First, a great deal of inflammatory gang evidence was admitted against

Ortega and not challenged before us. The government’s gang expert testified that

the North Hollywood Boyz was “a pretty hardcore gang,” and explained, “The

primary activity for Boyz that I’ve been involved with is the murder, extortion,

robberies, [and] . . . assault[s] with deadly weapons. They fly the gamut of . . . the

violent crime area.” The jury heard that Ortega himself was involved in a “gang


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related” manslaughter case in 2004, and that a victim in this case had testified in

that case. The jury heard testimony that “[g]angs rely on fear and intimidation in

the community to survive. . . . [I]f you have people report crimes against the gang,

it weakens the gang because they go to jail . . . .” They saw pictures of Ortega’s

gang tattoos. They heard that Ortega’s gang moniker was “Trigger.” Any

additional impact of the details of particular crimes committed by other gang

members added little to the effect of the gang evidence as a whole on the jury.

      Second, Orozco’s and Vega’s convictions were not presented to the jury as

substantively attributable to Ortega, either in the gang expert’s testimony or during

closing arguments. Instead, their convictions were properly admitted to show that

members of the gang engaged in certain types of crime, a necessary predicate to the

charged gang enhancement. See Cal. Penal Code § 186.22(e), (f). The addition of

some details as to the crimes underlying those convictions, even if inflammatory

and improper, could not have reasonably affected the outcome, in light of the other

gang evidence introduced and the peripheral import of the evidence challenged.

      In sum, Ortega cannot show that “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694.

      AFFIRMED.


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