Michael Herrera v. Kelly Harrington

456 F. App'x 668

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 31, 2011
• Docket: 08-56837
• Status: Unpublished

Opinion

MEMORANDUM **

Petitioner Michael Peter Herrera, a California state prisoner, appeals the district court’s denial of his 28 U.S.C. § 2254 habe-as petition. We have jurisdiction under 28 U.S.C. § 2253. We affirm.

Herrera argues that the evidence presented at his state trial was insufficient to permit the jury to find that the Santa Monica gang’s “primary activities” involved a crime enumerated in California’s gang enhancement statute. See Cal.Penal Code § 186.22; People v. Sengpadychith, 26 Cal.4th 316, 109 Cal.Rptr.2d 851, 27 P.3d 739, 744 (2001) (holding that an enumerated crime is a gang’s “primary” activity when it is one of the gang’s “ ‘chief or ‘principal’ occupations”).

In Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Supreme Court held that when the claim is made that a person has been convicted in state court upon insufficient evidence, the inquiry is whether, “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.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781. Moreover, because Herrera is a state prisoner challenging his conviction in federal court, he must also show that the California state court was “objectively unreasonable” in denying his sufficiency of the evidence claim. Juan H. v. Allen, 408 F.3d 1262, 1275 n. 12 (9th Cir.2005).

Here, the California state court reasonably applied Jackson because a rational trier of fact could have found that the Santa Monica gang’s “primary activities” included at least one of those listed in California Penal Code § 186.22(e).

Next, Herrera argues that the state trial court erred by failing to instruct the jury on the definition of “primary activities” as found in California’s model jury instructions. The phrase “primary activities” is sufficiently clear such that an average juror would understand its meaning. See United, States v. Tirouda, 394 F.3d 683, 688-89 (9th Cir.2005) (“No prejudice results from a district court’s failure to define a concept ‘within the comprehension of the average juror.’ ”) (quoting United States v. Dixon, 201 F.3d 1223, 1231 (9th Cir.2000)). The California Court of Appeal therefore did not unreasonably apply Supreme Court precedent in denying Herrera’s challenge to the jury instructions.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.