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Johnson v. Montgomery

United States Court of Appeals, Ninth Circuit

August 15, 2018

Ronneld Johnson, Petitioner-Appellant,
v.
W. L. Montgomery, Acting Warden, Respondent-Appellee.

          Argued and Submitted February 13, 2018 Pasadena, California

          Appeal from the United States District Court for the Central District of California Andre Birotte, Jr., District Judge, Presiding D.C. No. 2:14-cv-04766-AB-VBK

          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.

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

         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. 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.

          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 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 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.

         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 ...


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