                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 RONNELD JOHNSON,                                   No. 15-56007
             Petitioner-Appellant,
                                                      D.C. No.
                      v.                           2:14-cv-04766-
                                                      AB-VBK
 W. L. MONTGOMERY, Acting
 Warden,
             Respondent-Appellee.                     OPINION


         Appeal from the United States District Court
            for the Central District of California
         Andre Birotte, Jr., District Judge, Presiding

           Argued and Submitted February 13, 2018
                    Pasadena, California

                      Filed August 15, 2018

    Before: Marsha S. Berzon and Jay S. Bybee, Circuit
    Judges, and John A. Woodcock, Jr.* District Judge.

              Opinion by Judge Woodcock;
 Partial Concurrence and Partial Dissent by Judge Berzon




     *
       The Honorable John A. Woodcock, Jr., United States District Judge
for the District of Maine, sitting by designation.
2                   JOHNSON V. MONTGOMERY

                            SUMMARY**


                           Habeas Corpus

    The panel affirmed the district court’s denial of California
state prisoner Ronneld Johnson’s habeas corpus petition
challenging enhancements applied at sentencing for his
conviction for two counts of robbery.

    Johnson argued that the evidence supporting an
enhancement for a gang-related crime was constitutionally
insufficient under Jackson v. Virginia, 443 U.S. 307 (1979).
The panel held that it was objectively unreasonable for the
California Court of Appeal to conclude that the evidence was
sufficient for a reasonable jury to find the robbery was
committed “in association with” a gang, but that any error
regarding gang “association” was harmless because the
California Court of Appeal’s alternative conclusion—that the
evidence was sufficient for a reasonable jury to find the
robbery was committed “for the benefit of” a gang—was not
objectively unreasonable.

    Johnson also argued that an enhancement for a prior
nonjury juvenile adjudication violates Apprendi v. New
Jersey, 530 U.S. 466 (2000). The panel held that even
assuming that the California Supreme Court should have
decided that Johnson’s Apprendi claims fell within an
exception to the In re Dixon procedural bar, Johnson would
not have been entitled to a reduced sentence because the
California Supreme Court would have applied People v.

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                JOHNSON V. MONTGOMERY                     3

Nguyen, 209 P.3d 946 (Cal. 2009) (interpreting Apprendi’s
exception for prior convictions to cover nonjury juvenile
adjudications), and reasonably upheld the sentencing
enhancement based on Johnson’s juvenile conviction.

    Concurring in part and dissenting in part, Judge Berzon
agreed with the majority as to Johnson’s Apprendi claim, but
did not agree that a rational jury could have found that
Johnson committed robbery for the benefit of a gang totally
distinct from his own.


                       COUNSEL

Michael T. Drake (argued), Research and Writing Attorney;
Hilary L. Potashner, Federal Public Defender; Office of the
Federal Public Defender, Los Angeles, California; for
Petitioner-Appellant.

Charles Shang-Rei Lee (argued) and Kathy S. Pomerantz,
Deputy Attorneys General; Kenneth C. Byrne, Supervising
Deputy Attorney General; Lance E. Winters, Senior Assistant
Attorney General; Gerald A. Engler, Chief Assistant Attorney
General; Xavier Becerra, Attorney General; Office of the
Attorney General, Los Angeles, California; for Respondent-
Appellee.
4               JOHNSON V. MONTGOMERY

                         OPINION

WOODCOCK, District Judge:

    Ronneld Johnson, a California state prisoner, appeals the
district court’s denial of his petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 challenging his
sentencing enhancement for a prior nonjury juvenile
conviction and his sentencing enhancement for a gang-related
crime. Johnson argues that the evidence supporting the gang
enhancement was constitutionally insufficient under Jackson
v. Virginia, 443 U.S. 307 (1979), and he argues that the
enhancement for his nonjury juvenile conviction violates
Apprendi v. New Jersey, 530 U.S. 466 (2000). Because the
evidence was sufficient to establish that the robbery was “for
the benefit of” a gang, and because the juvenile conviction
claim was procedurally barred and sentencing enhancements
based on nonjury juvenile convictions do not violate any
clearly established federal law as determined by the United
States Supreme Court, we affirm.

                              I

                        Background

A. The Robbery

    At roughly 9:00 AM on November 9, 2011, Ronneld
Johnson and Jonathan King twice drove by a house in the
area of 111th and Anzac or Grape Streets in Southeast Los
Angeles. Two men were doing landscaping work at the
house. Johnson and King then pulled into an alley next to the
house, exited the car, and approached the other men. Johnson
pointed a semiautomatic gun at the faces of the victims, first
                JOHNSON V. MONTGOMERY                       5

at one, and then he hopped a small fence to point the gun at
the other. Johnson and King took their money, a cell phone,
and a gold chain. During the robbery, either Johnson or King
said, “Hurry up cuz,” which was either directed at the other
defendant or at one of the victims. Johnson and King then
got back in the car and left.

   In December 2011, the State charged both Johnson and
King with two counts of robbery each, including gang and
gun enhancement allegations. In March 2012, a jury
convicted Johnson and King and found the gang and gun
enhancements to be true.

B. The Gang Evidence

      The prosecution called an expert witness, Officer Jose
Carias, to testify about the nature of criminal street gangs.
For example, Officer Carias explained that gang members
sometimes commit crimes so that other members will
“respect” them, and he testified that gangs often encourage or
require their members to “put in work”—meaning commit
crimes—in order to ensure the gang is respected and feared
by others in the community, elevating the status of the gang
and discouraging witnesses from reporting information to the
police. He said that “cuz” is a term typically used by Crip
gangs, and is not a term typically used by members of other
gangs, like Bloods or Hispanic gangs. He also testified that
it is not uncommon for members of different gangs to commit
crimes together after forming ties through family, school, or
juvenile detention.

  King was an admitted member of a gang, the Project
Watts Crips.    He had numerous tattoos indicating
membership in that gang, including some on his face and
6                JOHNSON V. MONTGOMERY

hands. Johnson had self-identified as a member of the 58th
Street Neighborhood Crips in 2006, but the tattoos on his
body, including his hands, suggest he was a member of a
different gang, the East Coast Crips. Robbery is one of the
primary activities of the Project Watts Crips. The robbery
occurred within the area the Project Watts Crips claims as its
territory. The territory of the East Coast Crips is roughly four
or five miles away.

    After a lengthy hypothetical scenario corresponding to the
facts of Johnson and King’s case, the gang expert opined that
the individuals “committed a crime together in concert and
thus in association with another gang member,” and he
concluded that the crime primarily benefited the Project
Watts Crips. The expert relied on the following factors: that
both perpetrators were members of gangs, they committed the
crime within Project Watts Crips territory, they used the word
“cuz,” they drove by the victims multiple times indicating a
level of sophistication, they seemed comfortable because they
took the time to jump a fence and rob a second person, and
the crime occurred in broad daylight, without any attempt to
hide their identities.

C. The Post-Trial Proceedings

    On April 4, 2012, the trial court sentenced Johnson to an
aggregate term of imprisonment of twenty-eight years, eight
months. The sentence was based on the robbery, the gang
and gun enhancements, and a prior strike from a juvenile
conviction, all to run consecutively. The sentencing court
also found Johnson in violation of probation in another case,
and sentenced him to an additional consecutive 16-month
term of imprisonment.
                 JOHNSON V. MONTGOMERY                        7

    On October 4, 2012, Johnson filed a direct appeal. The
California Court of Appeal denied his appeal on May 15,
2013. Johnson sought review from the California Supreme
Court, but it denied review without substantive comment on
July 24, 2013.

   On January 6, 2014, Johnson filed a state habeas petition.
The California Court of Appeal denied the petition on
January 23, 2014. On February 18, 2014, Johnson filed a
habeas petition in the California Supreme Court. It denied
Johnson’s petition on May 14, 2014.

   On June 20, 2014, Johnson filed a petition for a writ of
habeas corpus in the United States District Court for the
Central District of California. The district court denied
Johnson’s habeas petition on June 8, 2015.

                               II

The Sufficiency of the Evidence for the Gang Enhancement

A. The Standard of Review

     “Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum” or “increases the mandatory minimum
[sentence] is an ‘element’ that must be submitted to the jury”
and proved beyond a reasonable doubt. Apprendi, 530 U.S.
at 490; Alleyne v. United States, 570 U.S. 99, 103 (2013).
Under Jackson, a due process claim challenging the
sufficiency of the evidence “can only succeed when, viewing
all the evidence in the light most favorable to the prosecution,
no rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Emery v.
8                JOHNSON V. MONTGOMERY

Clark, 643 F.3d 1210, 1213 (9th Cir. 2011). “When assessing
a petition for a writ of habeas corpus, we thus ‘look to [state]
law only to establish the elements of [the crime] and then turn
to the federal question of whether the [state] court was
objectively unreasonable in concluding that sufficient
evidence supported [its decision].’” Boyer v. Belleque,
659 F.3d 957, 965 (9th Cir. 2011) (alterations in original)
(quoting Juan H. v. Allen, 408 F.3d 1262, 1278 n.14 (9th Cir.
2005)). In addition to Jackson’s already deferential standard,
a second level of deference applies under AEDPA. For the
petitioner to prevail, we must conclude that the state court’s
determination that a rational jury could have found each
required element proven beyond a reasonable doubt was not
just wrong but was objectively unreasonable. Boyer,
659 F.3d at 964–65.

B. The California Gang Enhancement

    California’s gang enhancement applies to “any person
who is convicted of 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). The first prong requires that the crime be
related to a gang, and the second prong that the defendant
specifically intend to assist a gang member’s crime. See
People v. Albillar, 244 P.3d 1062, 1070 (Cal. 2010). Johnson
does not challenge the sufficiency of the evidence regarding
the specific intent prong. Rather, he challenges the California
appellate court’s conclusions that there was sufficient
evidence that the robbery he committed with King was “in
association with” and “for the benefit of” a gang. “Because
the first prong is worded in the disjunctive, [the] gang
enhancement may be imposed” based on either gang
                 JOHNSON V. MONTGOMERY                       9

association or benefit. People v. Weddington, 200 Cal. Rptr.
3d 799, 813 (Cal. Ct. App. 2016).

   1. It was objectively unreasonable to conclude that the
      evidence was sufficient for a reasonable jury to find
      the robbery was committed “in association with” a
      gang.

    “Committing a crime in concert with known gang
members can be substantial evidence that the crime was
committed in ‘association’ with a gang.” People v. Garcia,
199 Cal. Rptr. 3d 399, 413 (Cal. Ct. App. 2016). A crime is
committed “in association with” the gang if the “defendants
relied on their common gang membership and the apparatus
of the gang” when they committed the crime. Id. at 414
(quoting Albillar, 244 P.3d at 1071). In Albillar, the
California Supreme Court focused on the act of “committing
a crime with fellow gang members. . . .” 244 P.3d at 1072.
Albillar teaches that it is not sufficient to simply commit any
act in concert with a gang member, rather it is acting in
concert with individuals of “common gang membership” that
satisfies the “in association with” element of the gang
enhancement. Id.

    The California Court of Appeal concluded that the
evidence was sufficient to support the gang enhancement
based on the “in association with” component because
Johnson and King were both gang members, coupled with
“the manner in which the robberies were committed, which
indicated appellants acted in concert.” The court also pointed
to the expert’s testimony that “gang members’ personal ties
spill over into street crime.” The court’s conclusions were
unreasonable because Johnson and King did not act “in
concert” with “fellow” or “common” gang members.
10               JOHNSON V. MONTGOMERY

Johnson and King were members of different gangs, with
different enrollment and territories.

    It is also not enough to say that Johnson and King were
both Crips. Under California law, the prosecution cannot
group distinct gangs or sets within a larger criminal outfit
unless there is “some associational or organizational
connection uniting those subsets.” People v. Prunty,
355 P.3d 480, 486 (Cal. 2015); see also People v. Franklin,
203 Cal. Rptr. 3d 876, 886 (Cal. Ct. App. 2016) (labeling the
State’s attempt to group distinct gangs together a “bait-and-
switch” and concluding there was insufficient evidence of
“association” when the Defendant, a member of the Jim
Town gang, committed a crime “with the assistance of three
friends who were members of other gangs, not the Jim Town
gang.”).

    Nevertheless, any error regarding gang “association” was
harmless because the California Court of Appeal’s alternate
conclusion—that there was sufficient evidence the robbery
was committed “for the benefit of” a gang—was not
objectively unreasonable. See infra.

     2. It was not objectively unreasonable to conclude that
        the evidence was sufficient for a reasonable jury to
        find the robbery was committed “for the benefit of” a
        gang.

    Under California law, “[e]xpert opinion that particular
criminal conduct benefited a gang by enhancing its reputation
for viciousness can be sufficient to raise the inference that the
conduct was ‘committed for the benefit of . . . a [ ] criminal
street gang’ within the meaning of section 186.22(b)(1).”
Albillar, 244 P.3d at 1073. “[T]he typical close case is one in
                 JOHNSON V. MONTGOMERY                       11

which one gang member, acting alone, commits a crime.”
People v. Leon, 73 Cal. Rptr. 3d 786, 796 (Cal. Ct. App.
2008) (quoting People v. Morales, 5 Cal. Rptr. 3d 615, 632
(Cal. Ct. App. 2003)).

     As in many cases, the gang expert here testified that
violent crimes benefit a gang by increasing the intimidation
in the community, lowering reporting rates among witnesses,
and allowing the criminal enterprise to continue free from
police restraint. The gang expert also opined that such crimes
bestow “respect” on the individual and elevate the status of
the gang. Even so, the testimony of a gang expert, without
more, “is insufficient to find an offense gang related.” People
v. Ochoa, 102 Cal. Rptr. 3d 108, 114 (Cal. Ct. App. 2009).
“[T]he record must provide some evidentiary support, other
than merely the defendant’s record of prior offenses and past
gang activities or personal affiliations, for a finding that the
crime was committed for the benefit of . . . a criminal street
gang.” Id. (quoting People v. Martinez, 10 Cal. Rptr. 3d 751,
757 (Cal. Ct. App. 2004)).

    Here, there was sufficient evidence to establish the
following facts supporting the gang enhancement and the
expert’s testimony: (1) the robbery was a violent crime,
committed with a gun pointed directly into the face of a
victim, (2) the robbery occurred within the territory of the
Project Watts Crips, (3) robbery is one of the primary
activities of the Project Watts Crips, (4) the robbery occurred
in broad daylight, (5) the robbery was brazen because it
involved multiple victims and occurred at a time of the day,
roughly 9:00 a.m., when neighbors were most likely to
observe the crime; (6) King had numerous tattoos, including
some visible on his face and hands, indicating membership in
the Project Watts Crips, (7) during the robbery, either
12               JOHNSON V. MONTGOMERY

Johnson or King used the term “cuz,” a term used by
members of Crips gangs, and (8) the victims were ordinary
members of the public with no personal relationship with the
defendants or gangs.

    Even though Johnson and King never explicitly
mentioned King’s gang or flashed gang signs, it was not
objectively unreasonable to conclude that a rational jury
could find this cumulative evidence sufficient to show the
robbery was committed “for the benefit of” King’s gang. The
outward manifestations of gang involvement—King’s visible
tattoos, the use of gang-affiliated lingo, the brazen daylight
timing, and the apparent comfort with being observed—were
sufficient for a jury to infer that the crime was meant to send
a message to the public about gang brutality and control.
Those outward signs also pointed to the Project Watts Crips
specifically—King’s visible tattoos indicated membership in
that gang, the lingo was associated with Crips gangs, the
crime occurred in that gang’s territory, and robberies are one
of that gang’s primary criminal activities.

    A California appellate court considered Johnson’s
arguments that the robbery was not “for the benefit of”
King’s gang and concluded the underlying facts were
sufficient to support the expert testimony and establish gang
benefit under California law. Johnson does not dispute
whether the evidence was sufficient under Jackson to
establish the key facts, rather, he questions whether those
uncontested facts are legally sufficient to satisfy the
requirements of this California law. That is a question about
what state law requires, on which the state court has spoken.
Estelle v. McGuire, 502 U.S. 62, 63 (1991) (“[I]t is not the
province of a federal habeas court to reexamine state-court
                    JOHNSON V. MONTGOMERY                                13

determinations on state-law questions.”). The state court
decision was not objectively unreasonable.1

                                     III

            The Prior Nonjury Juvenile Adjudication

   Apprendi held that any fact used to increase the maximum
penalty for a crime, “[o]ther than the fact of a prior


    1
       We note that this decision was not incompatible with other
California caselaw. Habeas relief may lie when a misapplication of state
law is weighty enough to rise to the level of a due process violation. See
Estelle, 502 U.S. at 71–73. When we “look to [state] law . . . to establish
the elements of [the crime],” Boyer, 659 F.3d at 965, that includes prior
state cases because, were a state court to misapply the elements or
reinterpret the elements in a wildly inconsistent manner, recasting
sufficiency of the evidence questions as matters of state law interpretation,
it would doubtless transgress Jackson and due process. But this was far
from such a case.

      The state court’s decision was not objectively unreasonable because
even if it involved a slightly novel application of the gang enhancement
elements, that interpretation was in harmony with prior California
precedent, not so discordant as to undermine the fundamental federal right
to proof of every element beyond a reasonable doubt. Nothing in the prior
caselaw prohibited application of the enhancement when the defendant
was not a member of the gang that the crime was committed to benefit.
See Garcia, 199 Cal. Rptr. 3d at 414–16; Morales, 5 Cal. Rptr. 3d at 632.
Those California cases reversing the enhancement are distinguishable.
See e.g., People v. Rios, 165 Cal. Rptr. 3d 687, 712–14 (Cal. Ct. App.
2013) (nonviolent possession crime); Ochoa, 102 Cal. Rptr. 3d at 111,
117–18 (at night, outside gang territory, no observable signs of gang
affiliation); People v. Ramirez, 198 Cal. Rptr. 3d 318, 322–23 (Cal. Ct.
App. 2016) (personal dispute between neighbors); Franklin, 203 Cal. Rptr.
3d at 880–82 (prior romantic relationship with victim); People v. Perez,
226 Cal. Rptr. 3d 820, 826–27 (Cal. Ct. App. 2017) (outside gang
territory, no observable signs of gang affiliation).
14                 JOHNSON V. MONTGOMERY

conviction,” must be submitted to a jury and proved beyond
a reasonable doubt. 530 U.S. at 490. The California
Supreme Court interprets Apprendi’s exception for prior
convictions to cover nonjury juvenile adjudications. People
v. Nguyen, 209 P.3d 946, 953 (Cal. 2009). This court reached
the opposite conclusion. United States v. Tighe, 266 F.3d
1187, 1194 (9th Cir. 2001). But our interpretation of
Apprendi “does not represent clearly established federal law
‘as determined by the Supreme Court of the United States,’”
as required to overturn a state court decision regarding a
federal claim under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). Boyd v. Newland, 467 F.3d
1139, 1152 (9th Cir. 2006) (quoting 28 U.S.C. § 2254(d)(1)).

    The California Supreme Court denied Johnson’s Apprendi
claim in his habeas petition as procedurally barred, citing In
re Dixon, 264 P.2d 513, 514 (Cal. 1953). In California, “[t]he
general rule is that . . . the writ will not lie where the claimed
errors could have been, but were not, raised upon a timely
appeal from a judgment of conviction.” Id. The United
States Supreme Court held that California’s Dixon rule is an
adequate state ground to bar federal habeas review of a
petitioner’s claim. Johnson v. Lee, 136 S. Ct. 1802, 1804
(2016) (per curiam).

    Johnson contends that the California Supreme Court
misapplied its own procedural rule because his Apprendi
claim falls within a recognized exception to Dixon.2
Although we examine the application of state rules that bar
review of federal claims, Cone v. Bell, 556 U.S. 449, 468–69
(2009), “it is unusual to reject a state court’s use of a

    2
      Johnson does not attempt to demonstrate cause and prejudice for the
procedural default.
                JOHNSON V. MONTGOMERY                      15

procedural bar on the ground that it was erroneously applied.”
Sivak v. Hardison, 658 F.3d 898, 907 (9th Cir. 2011); accord
Lopez v. Schriro, 491 F.3d 1029, 1043 (9th Cir. 2007). Even
assuming that the California Supreme Court should have
decided that the Apprendi claim fell within an exception to
the Dixon bar, Johnson would not have been entitled to a
reduced sentence because the California Supreme Court
would have applied Nguyen and reasonably upheld the
sentencing enhancement based on Johnson’s juvenile
conviction.

                             IV

                         Conclusion

  For the reasons set forth above, the district court is
AFFIRMED.



BERZON, Circuit Judge, concurring in part and dissenting in
part:

    I agree with the majority as to Ronneld Johnson’s claim
under Apprendi v. New Jersey, 530 U.S. 466 (2000). But I do
not agree that a rational jury could have found that Johnson
committed robbery for the benefit of a gang totally distinct
from his own.

    California law on sentencing enhancements for gang
activity is broad, but—as California courts have explained—it
is not boundless. Here, taking into account the “double dose
of deference” we owe to a state court’s resolution of a
sufficiency of the evidence claim, Long v. Johnson, 736 F.3d
16               JOHNSON V. MONTGOMERY

891, 896 (9th Cir. 2013), there was simply no evidence that
Johnson committed robbery either “in association with” or
“for the benefit of” his co-defendant’s gang. Cal. Pen. Code
§ 186.22(b)(1). I would thus grant Johnson’s habeas claim
under Jackson v. Virginia, 443 U.S. 307 (1979). Because the
majority does not, I dissent.

                                I.

    I begin with some common ground. The California Court
of Appeal held that, in light of Johnson’s and his codefendant
King’s “known gang affiliation,” the fact that they “acted in
concert,” and evidence that “gang members’ personal ties
spill over into street crime, . . . [were] sufficient to establish
that each defendant committed the robberies in association
with a gang member.” In so doing, the Court misunderstood
a basic premise of the California gang enhancement statute,
as the majority opinion holds. Maj. Opn. at 9–10.

    “Under Jackson, federal courts must look to state law for
‘the substantive elements of the criminal offense.’” Coleman
v. Johnson, 566 U.S. 650, 655 (2012) (internal quotation
marks omitted). Here, the “association with” prong of the
relevant California gang enhancement statute is met when
defendants “c[o]me together as gang members” to commit a
crime, thus relying on “their common gang membership.”
People v. Albillar, 51 Cal. 4th 47, 62 (2010).

    There was no “common gang membership” in this case:
Johnson was a member of the East Coast Crips, while King
was a member of the Project Watts Crips. There was no
evidence that the defendants’ gangs had any overlap in
members or activities. Instead, the gang expert testified that:
the Project Watts Crips’ “primary rivals” included three other
                 JOHNSON V. MONTGOMERY                       17

Crips gangs; he disagreed with the proposition that “all Crip
gangs or sets get along with other Crip sets”; and he agreed
that, “even though they’ve adopted the same color, if you
will, or the same title, Crips, it’s been [his] experience that,
even within that larger group, there’s going to be some rivalry
and infighting.”

   Because the defendants were in different gangs, and there
was no evidence that the different gangs associated with one
another, no rational jury could have found that King and
Johnson acted in association with a single gang.

                              II.

   The Court of Appeal held, in the alternative, that there
was sufficient evidence under Jackson that Johnson
committed the robberies “for the benefit of” King’s gang.
Cal. Pen. Code § 186.22(b)(1). Unlike the majority, I would
hold this conclusion as well objectively unreasonable.

    Under California law, a crime can benefit a gang if it
“enhanc[es]” the gang’s “reputation for viciousness.”
Albillar, 51 Cal. 4th at 63. But, here, even the evidence that
King committed the robberies to benefit his own gang’s
reputation was flimsy. The gang expert opined that the
robberies benefitted the Project Watts Crips in two ways: by
“creat[ing] a sense of fear and intimidation with the
community,” thereby “prevent[ing] citizens from coming
forward and reporting crimes like this”; and by “bestow[ing]
a certain amount of respect on” and “elevat[ing] the status of
the gang itself.” The expert rested his conclusion exclusively
on evidence that King was a member of the Project Watts
Crips, and that robberies were committed with “comfort” in
the territory of the Project Watts Crips “in broad daylight,”
18                 JOHNSON V. MONTGOMERY

while one of the defendants used the word “cuz,” a word the
expert represented as particular to “Crip gang members.”

    There is an obvious gap between the expert’s opinion and
the evidence introduced to support it: “[T]here was no
evidence that . . . any of the . . . persons who witnessed the
crime knew that [Project Watts Crips] gang members or
affiliates were involved. Therefore, the crime could not have
enhanced respect for the gang members or intimidated others
in their community . . . .” In re Daniel C., 195 Cal. App. 4th
1350, 1363 (2011). King or Johnson used a word generically
associated with all Crips gang subsets, including the Project
Watts Crips’ rivals. While King had Project Watts Crips-
related tattoos, neither victim saw them. Even if the victims
had seen King’s tattoos, there was no evidence that they
would have been able to associate them with the Project
Watts Crips gang. The tattoos do not obviously mean
anything to a layperson—they contain the words “Funny” and
“Side,” the letters “P,” “J,” and “RIP,” and abstract symbols.1
And the fact that the robbery was committed in Project Watts
Crips territory cannot, on its own, support a link between the
robbery and the gang’s reputation. See People v. Ramon,
175 Cal. App. 4th 843, 851–52 (2009). On that logic, any
robbery committed in the territory, even if it is unconnected
to a gang or connected to a rival Crips gang, enhances the
Project Watts Crips’ reputation.



     1
       Such tattoo evidence is fundamentally unlike that in the most
relevant California case, in which the “for the benefit” prong was met
despite “no one call[ing] out the gang’s name”; in that case, “the
assailants’ identity as Carpas gang members was obvious,” because the
“[a]ppellant had the word ‘Carpas’ tattooed across his upper lip.” People
v. Galvez, 195 Cal. App. 4th 1253, 1261 (2011).
                 JOHNSON V. MONTGOMERY                        19

    The majority places great weight on the “outward
manifestations of gang involvement” displayed by both King
and Johnson. Maj. Opn. at 12. This reasoning ignores the
fact that such signs did not, and could not, point to affiliation
with the Project Watts Crips in particular, and thus could not
benefit that gang by enhancing its reputation. To the extent
Johnson displayed signs of gang membership generally,
neither California law, nor due process, permits Johnson to be
subject to a sentence enhancement for benefitting a particular
gang by enhancing its reputation because he looked like and
sounded like someone who was in any gang. A general aura
of “gangness”—even if broken down in a numbered
list—cannot establish a particular benefit to a particular gang.

    The Court of Appeal, and today’s opinion, sidestep the
fundamental question of how, exactly, the Project Watts
Crips’ reputation in particular could have been affected by the
crime when there was no evidence indicating that onlookers
could connect the Project Watts Crips to it. The majority
appears persuaded by the Court of Appeal’s concern that if it
held “self-identification during the commission of a crime [to
be] an essential requirement,” “such a requirement would
allow gang members to get around the gang enhancement.”

     To the degree this concern constitutes a factual finding, it
is flatly unreasonable. Defendants need not self-identify as
gang members to commit a crime for the benefit of a gang;
they could commit a crime to fund a gang, or to further its
other illegal activities, while maintaining steadfast secrecy.
See, e.g., People v. Gonzales, 232 Cal. App. 4th 1449,
1466–67 (2015). But if the prosecutor’s theory is that the
defendants intended to benefit a gang by enhancing its
reputation for violence, surely there must be some way for the
violent crime’s victims or onlookers to connect the particular
20               JOHNSON V. MONTGOMERY

defendant’s actions to that gang, either through self-
identification or some other means. If the onlookers cannot
make that connection, and there is no non-reputational benefit
to the gang, due process, as well as California law, require
that defendants not receive a gang enhancement.

                              III.

    Even if the evidence barely supported King’s sentence
enhancement, there was just no evidence introduced as to
why Johnson, a member of one gang, would seek to promote
the reputation of a different gang.

    The gang expert suggested that it was “not uncommon”
for members of different gangs to commit crimes together
because they “form[] ties” at school, through family, or at
juvenile hall. In other words, he opined that members of
different gangs commit crimes together because they know
each other. That is not an opinion or evidence that they
commit crimes together because they seek to benefit one
another’s gangs.

    The majority’s result implies that Johnson’s motives are
of no moment—that the government need not prove that
Johnson committed his crime for the benefit of King’s gang
so long as King did so. See Maj. Opn. at 12. That is
incorrect. The statute “does not punish a defendant for the
actions of associates.” People v. Gardeley, 14 Cal. 4th 605,
624 n.10 (1996), abrogated on other grounds by People v.
Sanchez, 63 Cal. 4th 665 (2016). “[R]ather[,] the act
increases the punishment for a defendant who committed a
felony to aid or abet criminal conduct of a group that has as
a primary function the commission of specified criminal
acts. . . .” Id. California courts have not hesitated to overturn
                 JOHNSON V. MONTGOMERY                      21

such gang enhancements under Jackson when evidence of
such aims—i.e., evidence of a motivating beneficial
relationship between the defendant’s criminal acts and the
identified gang—is lacking. See People v. Perez, 18 Cal.
App. 5th 598, 606–14 (2017) (collecting cases); People v.
Ramirez, 244 Cal. App. 4th 800, 818–19 (2016); Ramon,
175 Cal. App. 4th at 851 (2009).

    No published case has upheld a gang enhancement for a
member of one gang because his actions were taken “for the
benefit of” a gang unrelated to his own. Instead, for example,
People v. Garcia upheld a gang enhancement as to a member
of one Hispanic gang who committed a crime with two
members of another Hispanic gang, who “apparently relied
upon and trusted him as if he were one of them”; there, unlike
in Johnson’s case, “[a]n expert witnesses . . . testified that
there was a great deal of crossover between Hispanic criminal
street gangs” in the relevant area. Garcia, 244 Cal. App. 4th
1349, 1369 (2016). There was no similar testimony here.
The gang expert stressed that King’s and Johnson’s gangs
were distinct. And, as noted, to the limited extent he
explained why the two would commit a crime together, his
explanation relied entirely on the basis of ordinary social
acquaintance, not gang membership.

                             IV.

    This Court has an “obligation under Jackson to identify
those rare occasions in which a properly instructed jury may
convict even when it can be said that no rational trier of fact
could find guilt beyond a reasonable doubt.” United States v.
Nevils, 598 F.3d 1158 (9th Cir. 2010) (alterations and internal
quotation marks omitted). That obligation exists even under
the deferential standards of the Anti-Terrorism and Effective
22              JOHNSON V. MONTGOMERY

Death Penalty Act, 28 U.S.C. § 2554(d)(1). And that
obligation requires granting Johnson’s habeas petition.

    In short, there was no evidence indicating that Johnson’s
crime would enhance someone else’s gang’s reputation for
violence, and there was no evidence suggesting that Johnson
committed the robberies “for the benefit” of a gang to which
he did not belong. I respectfully dissent.
