                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           AUG 09 2012

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

TONY JAKE,                                       No. 09-56417

              Petitioner - Appellant,            D.C. No. 2:07-cv-06208-ODW-
                                                 JTL
  v.

TOM FELKER, Warden, Warden, CDC                  MEMORANDUM *
High Desert State Prison,

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     Otis D. Wright, District Judge, Presiding

                           Submitted August 7, 2012 **
                              Pasadena, California

Before: REINHARDT, SILVERMAN, and WARDLAW, Circuit Judges.




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

      **     The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       Petitioner Tony Jake appeals the district court’s denial of his petition for a

writ of habeas corpus. Jake argued that there was insufficient evidence to support

the jury verdict that he committed a felony “committed 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). He argued that the imposition of the enhancement in

the absence of sufficient evidence was unconstitutional under Jackson v. Virginia,

443 U.S. 307 (1979). Although he raised additional issues in his Application for a

Certificate of Appealability, the district court granted a certificate only as to

petitioner’s claim that there was insufficient evidence to support the gang

enhancement because “reasonable jurists could debate whether the evidence was

sufficient to establish that petitioner had the specific intent to assist in criminal

conduct by gang members.”

       In its interpretation of the second prong of § 186.22(b)(1), the California

courts have held that “if substantial evidence establishes that the defendant

intended to and did commit the charged felony with known members of a gang, the

jury may fairly infer that the defendant had the specific intent to promote, further,

or assist criminal conduct by those gang members.” People v. Albillar, 51 Cal. 4th

47, 68 (2010). Here, there was substantial evidence that Petitioner intended to and

did assist Underwood and Filer in murdering Bates. There was also sufficient
evidence that Underwood and Filer were Gangster Disciples members, and that the

Gangster Disciples were a criminal street gang within the meaning of Cal. Penal

Code § 186.22(f). Therefore, we find that the district court did not err in

concluding that the California Court of Appeal’s determination that there was

sufficient evidence supporting the enhancement as defined by the California courts

was not an objectively unreasonable application of Jackson.




AFFIRMED.
