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Name: Emery v. Clark
Case #: 08-55249
Court: US Court of Appeals
District 9 Cir
Opinion Date: 05/27/2011

The California Supreme Court’s decision in People v. Albillar (2010) 51 Cal.4th 47 provided the authoritative interpretation of the gang enhancement in Penal Code section 186.22, subdivision (b)(1) and contrary interpretations by the Ninth Circuit are overruled. The specific intent to promote, further, or assist in any criminal conduct by a gang member is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be apart from the criminal conduct underlying the offense of conviction sought to be enhanced. The Ninth Circuit had certified questions to the California Supreme Court about whether the statute required section 186.22’s gang enhancement to only apply when the defendant had the specific intent to facilitate gang members’ criminal activities other than the charged crime. The federal decisions to that effect, Briceno v. Scribner (9th Cir. 2005) 555 F.3d 1069 and Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 are consequently overruled on that point in deference to the state court’s interpretation of its statute.