Michael Herrera v. Kelly Harrington

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…