Pham

MEMORANDUM **

Tien Pham (“Pham”) appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging a trial court’s finding, after a bench trial, that a gang enhancement applied to his sentence arising out of his conviction on three counts of attempted murder. We have jurisdiction pursuant to 28 U.S.C. § 2253 . We affirm.

A federal court reviewing a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir.1992). Rather, the relevant 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 v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979) (emphasis in original). Combining this standard with the deferential habeas standard of review required by 28 U.S.C. § 2254 (d)(1), we must “ask whether the decision of the [state court] reflected an ‘unreasonable application of Jackson and [In re Winship, 397 U.S. 358, 364 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970) ] to the facts of this…

dissenting:

I respectfully dissent.

The majority correctly states the law and I dissent with some trepidation because of the double deference we are required to apply under Jackson v. Virginia 1 and 28 U.S.C. § 2254 (d)(1). 2 Nevertheless, having reviewed the conclusory finding of the trial judge, and having obtained and read the entire transcript of the trial, it is my view that the state court unreasonably applied the Jackson test. On the evidence before the trial court, no rational trier of fact could have found the essential elements of the enhancing crime beyond a reasonable doubt.

Pham was proved to be a member of the V-12 gang. And his conviction for the stabbing is not at issue. All that is at issue is the substantial gang enhancement added to his sentence. And the only serious issue regarding the gang enhancement is whether there was enough evidence for a trier of fact to conclude that Pham acted with the “specific intent to promote, further, or assist in any criminal conduct by gang members.”

The evidence wasn’t there. The only evidence for the gang enhancement was testimony by a police officer with training and experience in gangs, inferring that Pham acted with…