Tuesday, November 6, 2018
Gang Expert’s Opinion, Standing Alone, Insufficient for Enhancement
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday reversed a district judge’s denial of a California inmate’s petition for a writ of habeas corpus, holding that a gang expert’s testimony on the possible benefit of a solo robbery to the convict’s gang was not enough to support a 10-year gang enhancement.
The opinion was written by U.S. District Court Judge Michael H. Simon of the District of Oregon, sitting by designation, and was joined by Circuit Judge Jacqueline H. Nguyen. Senior U.S. Circuit Judge Diarmuid F. O’Scannlain dissented.
Penal Code §816.22(b)(1) provides that anyone convicted of committing a violent felony “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” is subject to a 10-year sentencing enhancement.
The defendant, Felix E. Maquiz MacDonald (referred to in the opinion by his first surname, Maquiz), was convicted by a jury in Riverside Superior Court of a 2001 robbery in Perris which he committed alone, as well as a 1999 robbery he took part in with other members of the Perres Mara Villa gang. The jury also found true that the robberies were both committed for the benefit of the gang.
Maquiz brought his federal habeas corpus petition after his appeals to California’s Fourth District Court of Appeal were unsuccessful. It was denied by District Court Judge John A. Kronstadt of the Central District of California.
Deputy Sheriff’s Testimony
At trial, Riverside Deputy Sheriff Eric Brewer testified as both a factual witness and as the prosecution’s gang expert. (The Riverside Sheriff’s Department performs municipal police services for the city of Perris.)
“A person acting alone, the benefit of that or where that can benefit the gang, the individual is a gang member. He wants to further his respect with other gang members.”
“You want the people to know you’re the ones that run that area and you don’t want to mess with Perres Mara Villa, you know, because we’re the ones that are in charge of this area. This is our turf. And beyond just the fear and intimidation that it’s creating, the fruits of the crime. Whatever money might be obtained or property or anything, that—that’s not necessarily only maintained by that individual. He’s going to share those things with other members of the gang. Maybe the individual owns a vehicle and uses that money to pay for gas or maintenance on his vehicle, and then his vehicle is used by the gang in the commission of other crimes or in their daily travels and stuff. It’s a bigger picture. It’s not just that one moment that individual’s involved in that.”
The majority held the admission of Brewer’s testimony did not contravene due process, but Simon explained that the deputy’s testimony was insufficient, under the U.S. Supreme Court’s 1979 opinion in Jackson v. Virginia, to support the enhancement.
In Jackson, the high court set forth the standard of review for federal challenges to the sufficiency of the evidence supporting state course convictions. Then-Justice Potter Stewart (now retired) explained that “the relevant question is whether, after 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.”
“The evidence presented at trial showed only that Maquiz committed the 2001 robbery alone, without wearing or displaying gang symbols, signs, or colors. There also was no evidence that the victim even knew that Maquiz was a gang member. Maquiz’s decisions to hold his hand over his face and to wear a knitted cap pulled down to his eyes indicate a desire to conceal his face and remain anonymous. An anonymous perpetrator’s crime has no effect on a gang’s reputation, and the perpetrator’s gang affiliation, if any, remains a mystery. Thus, no evidence would permit a reasonable inference that Maquiz performed the robbery to secure any particular territory for the gang or to enhance the gang’s reputation.”
O’Scannlain, who agreed that Brewer’s testimony was properly admitted, contended that federal intervention was unwarranted. Citing 28 U.S.C. §2254(d), he declared:
“The Antiterrorism and Effective Death Penalty Act (AEDPA)…empowers our court to order grant of a writ of habeas corpus in this case only if the California courts reached ‘a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’…Yet despite the Supreme Court’s repeated admonitions to this Circuit that AEDPA means what it says,…the majority treats this appeal just like another State court direct review of a criminal conviction and erroneously, in my view, orders grant of the writ based on California law, rather than Federal law.”
The jurist elaborated:
“I suggest that the majority’s analysis is premised upon two core misunderstandings of how a federal court is to assess a Jackson claim under AEDPA….
“First, the majority looks to the wrong law: rather than rely exclusively on the law clearly established by the Supreme Court as AEDPA commands, the majority turns to what it views as analogous state court decisions….
“Second, the majority fails to answer the only question AEDPA asks of us: whether fairminded jurists could disagree regarding the Jackson question presented in this case. That is, our inquiry here surely is not whether the California courts correctly applied the Jackson standard, but whether the State’s courts applied it in an objectively unreasonable fashion.”
The case is MacDonald v. Hedgpeth, No. 16-55240.
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