dissenting:

The majority concludes that habeas relief is warranted because there is “no evidence” that Garcia committed the robbery with the “specific intent to promote, further, or assist in any criminal conduct by gang members.” CAL. PENAL CODE § 186.22(b)(1). I believe that the majority misinterprets the requirements of section 186.22(b)(1), fails to credit the rational inferences that could be made from the record, and misapplies the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Thus, I respectfully dissent.

My first disagreement with the majority’s analysis concerns its interpretation of section 186.22(b)(1). See Chein v. Shum-sky, 373 F.3d 978, 983 (9th Cir.2004) (en banc) (“The Jackson standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law” (internal quotations omitted)). The majority contends that there was no evidence indicating what particular criminal gang activity Garcia intended to further in committing the robbery. See Ante at 1103 (“The expert’s testimony is singularly silent on what criminal activity of the gang was furthered or intended to be furthered by the robbery of Bojorquez”). But section 186.22(b)(1) does not require proof that the crime of conviction was committed with the intent to further some other specifically identified crime or category of crimes, and California courts have rejected sufficiency of the evidence claims even where such evidence was entirely lacking. See People v. Ortiz, 57 Cal.App.4th 480, 484-85 , 67 Cal.Rptr.2d 126 (1997) (sufficient evidence for gang enhancement where murder was committed in such a manner as to incriminate a rival gang in retaliation for an earlier incident); People v. Gamez, 235 Cal.App.3d 957, 978 , 286 Cal.Rptr. 894 (1991) (sufficient evidence where shooting was a “retaliatory strike” for shooting of member of defendant’s gang), overruled on other grounds, People v. Gardeley, 14 Cal.4th 605 , 59 Cal.Rptr.2d 356 , 927 P.2d 713 , 725 n. 10 (Cal.1996).

Indeed, the California Court of Appeal rejected Garcia’s challenge to the enhancement not because it thought the evidence in the record linked the robbery to some other specifically identified criminal gang activity, but because the evidence supported a rational inference that the robbery was committed with the intent to “facilitat[e]” the “nefarious control of the Little Five Points area and its residents.” This “facilitation” theory is entirely consistent with the California Supreme Court’s interpretation of section 186.22(b)(1). See Gardeley, 59 Cal.Rptr.2d 356 , 927 P.2d at 722 (sufficient evidence where assault was committed in public, and expert testified that gangs often commit violent assaults in public “to frighten the residents of an area where the gang members sell drugs, thereby securing the gang’s drug-dealing stronghold”).

This brings me to my second objection to the majority’s analysis, which involves its assessment of the record evidence in this case. Federal habeas relief is not warranted unless, at the very least, a court can conclude that “after viewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). Thus, even assuming that AEDPA does not require us *1106 to review state-court applications of Jackson deferentially (a point to which I shall soon return), we may grant habeas relief in this case only if the record cannot support beyond a reasonable doubt a rational inference that the robbery was committed with the intent to facilitate E.M.F.’s “nefarious control” of the gang’s “turf.” See United States v. Sherwood, 98 F.3d 402, 408 (9th Cir.1996) (“[W]e must respect the exclusive province of the jury to determine the credibility of witnesses, resolve eviden-tiary conflicts, and draw reasonable inferences from proven facts, by assuming that the jury resolved all such matters in a manner which supports the verdict” (internal quotations and alteration omitted)).

The majority attempts to distinguish Gardeley on the ground that the state’s expert in this case, Detective Hernandez, did not present testimony “comparable” to that offered by the expert in Gardeley. Ante at 1104. But, Gardeley merely held that such expert testimony was sufficient to support a section 186.22(b)(1) enhancement, not that it was necessary. The California Court of Appeal thought the evidence in this case sufficient notwithstanding the absence of such expert testimony, and its discussion of this issue is worth quoting at length:

One judge dissented from the California Court, of Appeal’s rejection of Garcia’s claim, arguing that “if the evidence in this case is sufficient to support the ‘gang’ enhancement, ... every crime committed by a gang member, without more, would qualify for the enhancement.” But, as the Court of Appeal’s majority opinion makes clear, the evidence supporting the gang enhancement was not limited to Garcia’s mere gang member status. Importantly, the evidence showed that Garcia asked Bojorquez, who Garcia did not know, where. Bojorquez was from and identified *1107 himself as “Little Risky from E.M.F.” A rational juror could infer from this evidence that Garcia intended to intimidate Bojorquez and the store owner by letting them know that they were dealing with an E.M.F. member on E.M.F. turf, so that Bojorquez, a perceived challenger to the gang’s authority, would know not to intrude on E.M.F. turf in the future and so that the store owner would submit to the gang’s dominance. The California Court of Appeal could properly conclude that there was sufficient evidence that this form of intimidation would “facilitate” the gang’s “nefarious control” of the area and make it easier to commit crimes there in the future, such as robbery, which was one of E.M.F.’s “principal activities.” See Gardeley, 59 Cal.Rptr.2d 356 , 927 P.2d at 722 . I therefore cannot agree that “there was no testimony or other evidence to support a rational inference that the robbery of Bojorquez was committed with the intent to further other criminal activity of E.M.F.” Ante at 1104.

Lastly, I disagree with the majority’s analysis of AEDPA. On at least two occasions, we have avoided deciding whether AEDPA requires a federal court reviewing a sufficiency of the evidence claim to accord a state court decision rejecting that claim an additional layer of deference beyond that built into the Jackson standard. See Chein, 373 F.3d at 982-83 ; Bruce v. Terhune, 376 F.3d 950, 956-57 (9th Cir.2004) (per curiam). The majority considers it unnecessary to decide how AEDPA interacts with Jackson in this case as well, because habeas relief supposedly is warranted even if AEDPA requires us to review state court applications of Jackson deferentially.

But if I assume that the California Court of Appeal incorrectly applied Jackson , as argued by the majority, I cannot agree that AEDPA makes no difference in this case. Rather, if AEDPA requires an additional level of deference, that deference would preclude relief here. I would therefore reach the question avoided in Chein and Bruce . As to that question, another member of this court has persuasively explained why AEDPA “clearly mandates not a direct application of Jackson , but a deferential review of a state court’s application of Jackson.” Bruce, 376 F.3d at 960 (O’Scannlain, J., concurring). Judge O’Scannlain pointed out that five circuits have concluded “that a sufficiency of the evidence claim presents a legal determination that must be evaluated through the AEDPA standard of review embodied in § 2254(d)(1).” Id. at 958-59 (collecting cases). Although the case could be made that state court decisions rejecting sufficiency of the evidence claims are properly reviewed pursuant to section 2254(d)(2) (which asks whether a state court decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding”) rather than section 2254(d)(1), the important point is that AEDPA does require some degree of additional deference. Indeed, “[n]o circuit has explicitly held that a state court’s Jackson inquiry is exempt from AEDPA’s standard of review.” Id. at 959. Thus, regardless of which subsection of section 2254(d) governs the inquiry, the deference required by that statute would preclude relief in this case.

' Had I been a member of the jury in Garcia’s state court trial, I might well have rejected the gang enhancement. Indeed, had I been a judge on the California Court of Appeal, I might have found the evidence supporting that enhancement insufficient. But that is not the inquiry commanded by AEDPA. Pursuant to section 2254(d), we may grant habeas relief only if the California Court of Appeal’s decision involved an “unreasonable application” of Jackson or an “unreasonable determination” of the *1108 facts. I conclude that the majority fails to accord the state court decision the deference it is due.

For these three reasons, I respectfully dissent.