Luis Escatel v. Kim Holland, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS ESCATEL,
Petitioner-Appellant,
v.
KIM HOLLAND, WARDEN,
Respondent-Appellee.
No. 16-56614
D.C. CV No. 14-2394-CAS (DFM)
MEMORANDUM*
Appeal from the United States District Court
For the Central District of California
Christina A. Snyder, District Judge, Presiding
Submitted February 4, 2019**
Before: GOULD and NGUYEN, Circuit Judges, and BENITEZ,*** District Judge.
Luis Escatel appeals the district court’s dismissal of his petition for habeas
corpus under 28 U.S.C. § 2254. We affirm. The conclusion of the California
Court of Appeal that sufficient evidence supported the gang enhancement was not
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Roger T. Benitez, Senior United States District Judge
for the Southern District of California, sitting by designation.
FILED
FEB 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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objectively unreasonable.
A jury could reasonably infer that robbery was a primary activity for the
gang. The jury had before it the testimony of the gang expert together with the
particular facts of the robberies, including the fact that Escatel acted with another
gang member, the gang was small with only 35 – 40 members, and the two gang
members carried out the robberies of five victims, in four separate incidents, over
the course of five months. The evidence was sufficient to support the jury’s
finding that one of the primary activities of Escatel’s Alondra 13 gang was the
commission of robbery, a criminal act enumerated in California Penal Code
§ 186.22(e).
The California appellate court was not unreasonable in deciding that a
rational trier of fact could have agreed with the jury. See Cavazos v. Smith, 565
U.S. 1, 2 (2011) (“A reviewing court may set aside the jury’s verdict on the ground
of insufficient evidence only if no rational trier of fact could have agreed with the
jury.”). While the jury was not required to draw the conclusion that robbery was
one of the gang’s principal activities, it was permitted by the evidence. Moreover,
the California appellate court applied the correct clearly-established constitutional
test for a defendant’s sufficiency-of-the-evidence claim. And the California
appellate court applied that test in an objectively reasonable fashion in deciding the
evidence was sufficient.

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Denying the petition for a writ of habeas corpus, the district court correctly
applied the deference owed to both the jury’s verdict and the state appellate court’s
reasonable application of federal constitutional law. See Johnson v. Montgomery,
899 F.3d 1052, 1056-57 (9th Cir. 2018); Coleman v. Johnson, 566 U.S. 650, 651
(2012) (describing the two layers of judicial deference to be applied in § 2254
claims of insufficient evidence which affords due respect to the roles of the jury
and the state courts).
AFFIRMED.

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