Although the state court’s finding that defendant’s gang enhancement was supported by evidence he committed a robbery “in association with” a gang was objectively unreasonable, the evidence did support a finding the offense benefitted the gang. Johnson was convicted of robbery, with a gang enhancement and a strike prior found true. His conviction was affirmed on direct appeal and in state habeas proceedings. His writ petition in federal district court was denied and he appealed. Held: Affirmed. California’s gang enhancement applies to any person who is convicted of a felony committed for the benefit of, or in association with any criminal street gang, with the specific intent to promote, further or assist the criminal conduct of the gang (Pen. Code, § 186.22, subd. (b)(1)). It is acting in concert with individuals of common gang membership that satisfies the “in association with” element of the enhancement. In this case it was unreasonable for the state court to find this prong of the enhancement satisfied where Johnson and his codefendant, though both were Crips, were members of different subsets of the Crips gang, which had different enrollment and territories. However, a gang expert testified that violent crimes benefit a gang by intimidating people in the community and deterring witnesses from reporting crimes. Thus, it was not unreasonable for the state court to conclude the robbery was committed “for the benefit of” the gang.

It was not error to use Johnson’s nonjury juvenile adjudication as a strike prior under California’s Three Strikes law. Any fact used to increase the maximum penalty for a crime, other than the fact of a prior, must be submitted to a jury and proved beyond a reasonable doubt (Apprendi v. New Jersey (2000) 530 U.S. 466). “The California Supreme Court interprets Apprendi’s exception for prior convictions to cover nonjury juvenile adjudications.” (People v. Nguyen (2009) 46 Cal.4th 1007.) The Ninth Circuit reached the opposite conclusion (United States v. Tighe (9th Cir. 2001) 266 F.3d 1187), but this does not provide the “clearly established federal law” as determined by the United State Supreme Court, which is required to overturn a state court decision under AEDPA. In any event, the California Supreme Court denied Johnson’s Apprendi claim as procedurally barred because it was not raised on direct appeal (In re Dixon (1953) 41 Cal.2d 756) and this is an adequate state ground to bar federal habeas review of Johnson’s claim (Johnson v. Lee (2016) 136 S.Ct. 1802).

The full opinion is available on the court’s website here: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/15/15-56007.pdf