ESCATEL v. HOLLAND (2019)

MEMORANDUM ***

Luis Escatel appeals the district court’s dismissal of his petition for habeas corpus under 28 U.S.C. § 2254. We affirm. The conclusion of the California Court of Appeal that sufficient evidence supported the gang enhancement was not objectively unreasonable.

A jury could reasonably infer that robbery was a primary activity for the gang. The jury had before it the testimony of the gang expert together with the particular facts of the robberies, including the fact that Escatel acted with another gang member, the gang was small with only 35 – 40 members, and the two gang members carried out the robberies of five victims, in four separate incidents, over the course of five months. The evidence was sufficient to support the jury’s finding that one of the primary activities of Escatel’s Alondra 13 gang was the commission of robbery, a criminal act enumerated in California Penal Code § 186.22(e).

The California appellate court was not unreasonable in deciding that a rational trier of fact could have agreed with the jury. See Cavazos v. Smith, 565 U.S. 1, 2, 132 S.Ct. 2, 181 L.Ed.2d 311 (2011) (“A reviewing court may set aside the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.”). While the jury was not required to draw the conclusion that robbery was one of the gang’s principal activities, it was permitted by the evidence. Moreover, the California appellate court applied the correct clearly-established constitutional test for a defendant’s sufficiency-of-the-evidence claim. And the California appellate court applied that test in an objectively reasonable fashion in deciding the evidence was sufficient.

Denying the petition for a writ of habeas corpus, the district court correctly applied the deference owed to both the jury’s verdict and the state appellate court’s reasonable application of federal constitutional law. See Johnson v. Montgomery, 899 F.3d 1052, 1056-57 (9th Cir. 2018); Coleman v. Johnson, 566 U.S. 650, 651, 132 S.Ct. 2060, 182 L.Ed.2d 978 (2012) (describing the two layers of judicial deference to be applied in § 2254 claims of insufficient evidence which affords due respect to the roles of the jury and the state courts).

AFFIRMED.