Tony Jake v. Tom Felker

MEMORANDUM

Petitioner Tony Jake appeals the district court’s denial of his petition for a writ of habeas corpus. Jake argued that there was insufficient evidence to support the jury verdict that he committed a felony “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” Cal.Penal Code § 186.22(b)(1). He argued that the imposition of the enhancement in the absence of sufficient evidence was unconstitutional under Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). Although he raised additional issues in his Application for a Certificate of Appealability, the district court granted a certificate only as to petitioner’s claim that there was insufficient evidence to support the gang enhancement because “reasonable jurists could debate whether the evidence was sufficient to establish that petitioner had the specific intent to assist in criminal conduct by gang members.”

In its interpretation of the second prong of § 186.22(b)(1), the California courts have held that “if substantial evidence establishes that the…