United States Ninth Circuit

In a habeas petition relating to a murder prosecution, the Ninth Circuit certifies the following questions to the California Supreme Court: 1) Does California's criminal street gang enhancement statute, in particular the element of "specific intent to promote, further, or assist in any criminal conduct by gang members" in California Penal Code section 186.22(b)(1), require proof that the defendant specifically intended to promote, further, or assist in other criminal gang activity, apart from the offense of conviction? 2) Is gang expert testimony tied to the facts of the case - regarding the centrality of "respect" in gang culture, and how the defendant's use of lethal force to avenge a minor slight to a member of an affiliated gang would enhance the "respect" he gets from other gang members, raise his status within the gang hierarchy, and teach the community not to interfere with even the most minor criminal activities of his fellow gang members - sufficient to satisfy the requirement that the murder was committed with the "specific intent to promote, further, or assist in any criminal conduct by gang members" within the meaning of section 186.22(b)(1)? 3) Does evidence that the defendant committed the attempted robbery and murder in concert with the brother of a young gang member, whom the victim allegedly "disrespected," satisfy the requirement that the crimes were committed with the specific intent to "assist in any criminal conduct by gang members" within the meaning of section 186.22(b)(1)?

Appellate Information

• Argued 12/10/2009
• Decided 05/13/2010
• Published 05/13/2010

Judges

• Before CYNTHIA HOLCOMB HALL and BARRY G. SILVERMAN, Circuit Judges, and SUZANNE B. CONLON, District Judge.

Court

• United States Ninth Circuit

Counsel

• For Appellant:
  
• Vivian A. Fu, San Francisco, CA, for the petitioner-appellant.


• For Appellees:
  
• James William Bilderback, II, Supervising Deputy Attorney General, Los Angeles, CA, for the respondent-appellee.