Briceno

I concur in the opinion, except as to Part 111 of the analysis. As to Part III, I must respectfully dissent, principally due to the standards we must apply on habeas review.

In the words of the California Court of Appeal, Alberto Briceno and Evaristo Lan-din “launched a grinchly crime wave on Christmas Day 2000,” and were ultimately convicted of four armed robberies, each committed within a three-hour time span that day. Although there was evidence at trial that the crimes were committed for personal gain (stealing money to buy Christmas gifts), the jury found that a sentencing enhancement was warranted based on the gang-related nature of the crimes. Briceno’s sentence was enhanced under California’s gang enhancement statute, which provides an enhancement for “any person who is convicted of a felony committed [ (1) ] for the benefit of, at the direction of, or in association with any criminal street gang, [ (2) ] with the specific intent to promote, further, or assist in any criminal conduct by gang members.” Cal.Penal Code § 186.22(b)(1) (emphasis added). The two prongs are considered separately. See, e.g., People v. Morales, 112 Cal.App.4th 1176 , 5 Cal.Rptr.3d 615, 632 (2003);…

Opinion by Judge MINER; Partial Concurrence and Partial Dissent as to Part III by Judge WARDLAW.

I. Introduction

Alberto Francisco Briceno appeals from a judgment of the United States District Court for the Central District of California (Morrow, J.) denying his petition for a writ of habeas corpus. Briceno was convicted, following a jury trial, of four counts of second degree robbery and four counts of street terrorism in the Superior Court of Orange County. The jury also found that the robberies were committed for the benefit of a criminal street gang. Briceno pursued various challenges to his convictions in the California state courts and in the District Court. Ultimately, we granted a certificate of appealability as to two issues that are now before us to resolve: “(1) whether there is sufficient evidence to support the gang enhancement convictions for each robbery; and (2) whether the trial court erred by allowing the prosecution’s expert to testify that the gang enhancement allegations were true.” See 28 U.S.C. § 2253 (c)(3). After setting forth the background facts, we analyze these issues in reverse order, answering both in the negative.

II. Of the Crimes

Briceno and…

Vivian A. Fu, San Francisco, CA, for the petitioner-appellant.

Ronald A. Jakob, Deputy Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Gary W. Schons, Senior Assistant Attorney General (Edmund G. Brown, Jr., Attorney General for the State of California), San Diego, CA, for the respondent-appellee.

Before: ROGER J. MINER, [*] KIM McLANE WARDLAW, and MARSHA S. BERZON, Circuit Judges.

Opinion by Judge MINER; Partial Concurrence and Partial Dissent as to Part III by Judge WARDLAW.

MINER, Circuit Judge:

Alberto Francisco Briceno appeals from a judgment of the United States District Court for the Central District of California (Morrow, J.) denying his petition for a writ of habeas corpus. Briceno was convicted, following a jury trial, of four counts of second degree robbery and four counts of street terrorism in the Superior Court of Orange County. The jury also found that the robberies were committed for the benefit of a criminal street gang. Briceno pursued various challenges to his convictions in the California state courts and in the District Court. Ultimately, we granted a certificate of appealability as to two issues that are now before us to resolve:…