Griffin v gipson case brief

Reaction Paper Guidelines

Reaction papers are a critical component of the conversation that will take place in this course. There will be a total of five different reaction papers throughout the course. Each of the five reaction papers will be approximately two pages in length. The text will be double-spaced and formatted using APA format. Students should clearly identify their topic and present their personal viewpoint or perspective; however, students must also present a factual basis for that viewpoint (as opposed to an opinion paper). All references supporting the factual basis must be properly cited to the original sources in accordance with APA guidelines.

Topic:

· The crime of conspiracy

While you are primarily addressing the topic selected, you may want to discuss or expand on a topic presented in the textbook, a case dealing with the subject, or a current event from the news or Internet, and present your viewpoint or perspective on that item as it relates to the issue present in your chosen topic.

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7-2Participation Before and During the Commission of a Crime
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All participants before and during the commission of a crime (accomplices) are prosecuted for the crime itself (for example, accomplices to murder are prosecuted as murderers). So participation before and during a crime ( accomplice liability ) is a very serious business, because the punishment for being an accomplice is the same as for the person who actually committed the crime.

Participation after crimes are committed ( accessory liability ) is prosecuted as a separate, minor offense (for example, accessory to murder). Accessories are punished for misdemeanors, a much less serious offense, because accessories are considered obstructers of justice, not felons.

We need to clear up a problem before we get further into accomplice liability. Accomplices are often confused with co-conspirators (Chapter 8), because both accomplice and conspiracy cases have more than one participant, but they’re two completely different crimes. Conspiracy is an agreement to commit some other crime. A conspiracy to commit murder is not murder; it’s the lesser offense of agreeing to commit murder (Chapter 8). Participating in a murder is the crime of murder itself. For example, two people agree to commit a murder. At this point, they’ve committed conspiracy to murder. Now they go to a gun shop, buy a gun, and drive together to the victim’s house. One acts as a lookout while the other shoots the victim, who dies instantly. They drive away together. They’re both murderers. They’ve committed two separate crimes—the less serious crime of conspiracy to commit murder and the crime of murder.

The rule that the crime of conspiracy and the crime the conspirators agree to commit are separate offenses is called the Pinkerton rule . The name comes from a leading U.S. Supreme Court case, Pinkerton v. U.S. (1946). The two Pinkerton brothers conspired to evade taxes. They were found guilty of both conspiracy to evade taxes and tax evasion itself. According to Justice Douglas, who wrote the opinion for the Court: “It has been long and consistently recognized by the Court that the commission of the offense and a conspiracy to commit it are separate and distinct offenses” (643).

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8-2Conspiracy
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The core of conspiracy is an agreement to commit a crime. It’s this agreement that gives rise to criminal liability, by transforming a lonely criminal thought hatched in the mind of a single, powerless individual into an agreement with another person. I reveal myself as one of those persons who suffer from an abnormal disposition to engage in criminal conduct, by distinguishing myself from those untold millions who harbor criminal thoughts, but never share them with others, never mind act on them in any way. But my decision to seek out likeminded proto criminals, and to join hands with them in the pursuit of a common criminal goal is symptomatic of my extraordinary dangerousness. By combining forces with another similarly dangerous person, I multiply my already considerable dangerousness through the magic of cooperation. (Dubber 2002, 163)

Conspiracy , the crime of agreeing with one or more people to commit a crime, is further removed from actually committing a crime than attempts to commit crimes. In fact, there are two public policy justifications for attaching criminal liability to actions further away from completion than attempts:

1. Conspiracy works hand in hand with attempts to nip criminal purpose in the bud.

2. Conspiracy strikes at the special danger of group criminal activity. (ALI 1985, 3:377–78)

In this section, we’ll look at what’s necessary to prove the actus reus and mens rea of conspiracy, how the law treats the circumstance elements of parties to conspiracies, and the objectives of conspiracies. (See the Elements of Conspiracy illustration.) Then, we look at large-scale conspiracies, gang conspiracies, and RICO-related conspiracies.

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8-2aConspiracy Actus Reus
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Conspiracy actus reus consists of two parts:

· (1)

an agreement to commit a crime (in all states) and

· (2)

an overt act in furtherance of the agreement (in about half the states). Let’s look at each part.

The Agreement
The heart of the crime of conspiracy is the act of agreement between two or more people to commit a crime. The agreement doesn’t have to be a signed written contract. It’s “not necessary to establish that the defendant and his coconspirators signed papers, shook hands, or uttered the words ‘we have an agreement’” (State v. Vargas 2003, 208–9). Facts and circumstances that point to an unspoken understanding between the conspirators are good enough to prove the conspirators agreed to commit a crime. This rule makes sense because conspirators rarely put their agreements in writing.

The rule might make sense, but it encourages vague definitions of “agreement” that can lead to injustice. In one famous trial during the Vietnam War, the government tried the well-known baby doctor turned war protestor, Dr. Benjamin Spock, for conspiracy to avoid the draft law. Videotapes showed several hundred spectators clapping while Dr. Spock urged young men to resist the draft. Spurred on by antagonism to antiwar protestors, the prosecutor in the case made the ridiculous assertion that any person seen clapping on the videotape was a co-conspirator. According to the prosecutor, these people were aiding Spock, and that made them parties to a conspiracy to violate the draft law (Mitford 1969, 70–71).

The Overt Act
In about half the states, the agreement itself satisfies the actus reus of conspiracy. The other half and the federal courts require the act of agreeing to commit a crime plus another act to further the agreement; the second act is called the overt act requirement .

Why the requirement of an “overt act”? To verify the firmness of the agreement. The overt act doesn’t have to amount to much. In the words of the American Law Institute’s commentator (1985, [3] 387), it may “be of very small significance.” And according to the U.S. Supreme Court Justice Oliver Wendell Holmes (Hyde v. U.S. 1912):

If the overt act is required, it does not matter how remote the act may be from accomplishing the [criminal] purpose, if done to effect it; that is, I suppose, in furtherance of it in any degree. (388)

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8-2bConspiracy Mens Rea
Conspiracy mens rea , the mental element in conspiracy, wasn’t defined clearly at common law, and most modern legislatures haven’t made it any clearer. This leaves the courts to define it. The courts in turn have taken imprecise, widely divergent, and inconsistent approaches to the mens rea problem. According to former Supreme Court Justice Robert Jackson, “The modern crime of conspiracy is so vague that it almost defies definition” (Krulewitch v. U.S. 1949, 445–46).

Authorities frequently call conspiracy a specific-intent crime. But what does that mean? Does it mean that conspiracy involves intent to enter an agreement to commit a crime? Or does conspiracy also have to include an intent to attain a specific criminal objective? A criminal objective is the criminal goal of an agreement to commit a crime.

For example, if two men agree to burn down a building, they intend to commit arson. But if they don’t intend to hurt anyone and someone dies, did they also conspire to commit murder? Not if the conspiracy mens rea means the specific intent to achieve a particular criminal objective.

This example demonstrates an important distinction between, on one hand, the intent to make agreements and, on the other hand, the intent to achieve a criminal objective. If the objective is to commit a specific crime, it has to satisfy that crime’s mens rea. So conspiring to take another’s property isn’t conspiring to commit larceny unless the conspirators intended to deprive the owner of possession permanently (see Chapter 11).

Courts further complicate conspiracy mens rea by not clarifying whether it requires purpose. Consider cases involving suppliers of goods and services, such as doctors who order drugs from pharmaceutical companies that they then use or sell illegally. At what point do the suppliers become co-conspirators, even though they haven’t agreed specifically to supply drugs for illegal distribution?

Do prosecutors have to prove the suppliers agreed specifically to further the buyers’ criminal purposes? Most courts say yes, even though that kind of proof is difficult to obtain, because as we’ve already seen, conspirators aren’t foolish enough to put proof of their crimes in writing. So purpose has to be inferred from circumstances surrounding the agreement, such as quantities of sales, the continuity of the supplier–recipient relationship, the seller’s initiative, a failure to keep records, and the relationship’s clandestine nature. Some argue that knowing, or conscious, wrongdoing ought to satisfy the conspiracy mens rea (Direct Sales Co. v. U.S. 1943).

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8-2cParties to Conspiracy
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The traditional definition of “conspiracy” includes the attendant circumstance element that agreements involve “two or more parties agreeing or combining to commit a crime” (ALI 1985, 3:398). Most modern statutes have replaced this traditional definition with a unilateral approach to conspiracy parties that doesn’t require that all conspirators agree—or even know—the other conspirators. For example, if one of two conspirators secretly has no intention to go through with the agreement, the other conspirator is still a party.

When there’s more than one party, failure to convict one party doesn’t prevent conviction of other parties to the conspiracy. Typically, statutes are similar to the Illinois Criminal Code (Illinois Criminal Law and Procedure 1988), which provides:

It shall not be a defense to conspiracy that the person or persons with whom the accused is alleged to have conspired:

1. Has not been prosecuted or convicted, or

2. Has been convicted of a different offense, or

3. Is not amenable to justice, or

4. Has been acquitted, or

5. Lacked the capacity to commit an offense. (chap. 38, § 8-4)

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8-2dThe Criminal Objective of the Conspiracy
Conspiracy is an agreement but an agreement to do what? In the old days, the criminal objective of the conspiracy was defined to cover a broad spectrum. The objective could be as narrow as an agreement to commit a felony or as broad as agreements to

· commit “any crime”

· do “anything unlawful”

· commit “any act injurious to the public health, or for the perversion of or obstruction of justice, or due administration of the laws” (ALI 1985, 3:395)

· do even “lawful things by unlawful means”

In most modern statutes, the criminal objective of the conspiracy is almost always limited to agreements to commit crimes. The vague definitions of the elements in conspiracy offer considerable opportunity for prosecutorial and judicial discretion. At times, this discretion borders on abuse, leading to charges that conspiracy law is unjust. First, a general criticism is that conspiracy law punishes conduct too far remote from the actual crime. Second, labor organizations, civil liberties groups, and large corporations charge that conspiracy is a weapon against their legitimate interests of, respectively, collective bargaining and strikes, dissent from accepted points of view and public policies, and profit making.

Critics say that when prosecutors don’t have enough evidence to convict for the crime itself, they turn, as their last hope, to conspiracy. Conspiracy’s vague definitions greatly enhance the chance for a guilty verdict. Not often mentioned, but extremely important, is that intense media attention to conspiracy trials can lead to abuse. This happened in the conspiracy trials of Dr. Benjamin Spock, the Chicago Eight, and others involving radical politics during the 1960s.

It also occurred in the Watergate conspiracy trials involving President Nixon’s associates during the 1970s, in the alleged conspiracies surrounding the sale of arms to Iran for hostages and the subsequent alleged diversion of funds during the 1980s, and in the alleged conspiracy of Osama bin Laden’s chauffer and the various alleged conspiracies of officials in the White House during the early 2000s. Several states have made efforts to overcome these criticisms by defining conspiracy elements more narrowly. The definitions of “agreement or combination” (two or more parties combining to commit crimes) are no longer as vague as they once were.

The Model Penal Code has adopted the overt act requirement (acts in furtherance of the act of agreement), and about half the states are following that lead. Those states have refined mens rea to include only purposeful conduct—that is, a specific intent to carry out the objective of the agreement or combination. Knowledge, recklessness, and negligence are increasingly attacked as insufficient culpability for an offense as remote from completion as conspiracy. Furthermore, most recent legislation restricts conspiratorial objectives to criminal ends. Phrases such as “unlawful objects,” “lawful objects by unlawful means,” and “objectives harmful to public health, morals, trade, and commerce” are increasingly regarded as too broad and, therefore, unacceptable.

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8-2eLarge-Scale Conspiracies
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The relationship of parties to conspiracies can get intricate, particularly when they involve large operations. Most of these large-scale conspiracies fall into two major patterns: “wheel” and “chain” conspiracies. In wheel conspiracies , one or more defendants participate in every transaction. These participants make up the hub of the wheel conspiracy. Others participate in only one transaction; they are the spokes in the wheel. In chain conspiracies , participants at one end of the chain may know nothing of those at the other end, but every participant handles the same commodity at different points, such as manufacture, distribution, and sale.

Chain conspiracies often involve the distribution of some commodity, such as illegal drugs. In one famous old case still relevant today, U.S. v. Bruno (1939), smugglers brought narcotics into New York, middlemen purchased the narcotics, and two groups of “retailers” (one operating in New York and the other in Louisiana) bought narcotics from the middlemen.

In our next case excerpt, Griffin v. Gipson (2015), the U.S. Magistrate Judge for Eastern District of California found that the prosecutor proved beyond a reasonable doubt that David Griffin, gang name “Baby Attitude,” a member of the “29th Street Crips” gang based in South Sacramento, and several other members of the gang conspired to murder Destiny Doe. The conspiracy to commit murder in California requires prosecutors to prove four elements beyond a reasonable doubt:

1. Griffin and other defendant gang members and associates entered into an agreement to unlawfully kill Doe.

2. Each defendant specifically intended to enter into an agreement to kill a human being.

3. Each of them harbored a specific intent to kill.

4. One of more of them committed an overt act in furtherance of the agreement.

Did He Conspire to Commit Murder?
Case

In Griffin v. Gipson (2015), the U.S. Magistrate Judge for Eastern District of California found that the prosecutor proved beyond a reasonable doubt that David Griffin, gang name “Baby Attitude,” a member of the “29th Street Crips” gang based in South Sacramento, and several other members of the gang conspired to murder Destiny Doe.

Griffin v. Gipson U.S. District Court, Eastern District California. No. 2:13-cv-02516-MCE-GGH (2015)

Hollows, U.S. Magistrate Judge

History
David Griffin (Petitioner) is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of robbery in concert, burglary, aggravated kidnapping, conspiracy to commit murder, and attempted murder; each included enhancements for firearm use and committing the offenses for the benefit of a criminal street gang. He was also convicted of active participation in a criminal street gang. Petitioner was sentenced to a prison term of 19 years 8 months, plus 65 years to life. Petitioner challenges his conviction on due process grounds as follows: 1) prosecutorial misconduct in rebuttal closing argument; 2) prosecutorial misconduct regarding alleged misstatements of law; and 3) insufficient evidence of a conspiracy to commit murder.

Upon careful consideration of the record and the applicable law, the undersigned [U.S. Magistrate Judge Gregory G. Hollows] will recommend that petitioner’s application for habeas corpus relief be denied. [This case excerpt includes only the parts dealing with “conspiracy to commit murder.”]

Facts
Defendants Zachary Tyler (“Smash”), David Griffin (“Baby Attitude”) and Lashea Merritt (“Lady Smash”) were members of a criminal street gang called the 29th Street Crips, which is based in South Sacramento. Tyler’s gang name was “Smash,” Merritt was called “Lady Smash,” and Griffin went by the name of “Baby Attitude.” Defendant Jordan Kidd was a member of the Valley High Crips, which is an “ally” of the 29th Street Crips. His gang name was “Five.” Defendant Kimberly Knorr was an “associate” of the 29th Street Crips who was in a dating relationship with Kidd. Her gang name was “Lady Five.”

In January 2007, Destiny Doe and Knorr were living at the residence of Nate E. in Sacramento. Doe worked as an assistant preschool teacher while also moonlighting as a prostitute for Nate’s “escort” service. Knorr also worked for Nate. While they lived together, Knorr often bragged to Doe about things she and her “Crip homies” did together.

On the evening of January 22, 2007, Doe and Knorr were returning home in Doe’s car when Doe received a call from Nate telling her Knorr had been kicked out of the residence and not to bring her to Nate’s house. Doe dropped Knorr off at a gas station on the corner of Fruitridge and Franklin Boulevard.

Knorr’s sister, B.K., was dating Tyler at around this time and, on the evening of January 22, was with him at the home of A.S., who was Merritt’s mother and was known by the gang name of “Mama Solo.” Also present were A.S., Griffin, Kidd, Merritt, and Merritt’s brother, L.M., who is known as “Baby Solo.”

After Knorr was dropped off, she called B.K. and told her she had argued with Nate and was moving out of his residence. Knorr said she had been dropped off by Doe and needed a ride to pick up her things. Tyler drove to Knorr’s location and brought her back to the A.S. residence.

When Knorr arrived, she was upset and said Nate had insulted the gang. In particular, Knorr told them Nate had said, “fuck them—fuck Smash and them. They’re not no 29th Street Garden Block Crips.” Garden Block Crips is another name for the 29th Street Crips.

The others in the room jumped up and “started talking shit to one another about it.” Tyler said, “fuck that nigga, let’s go smoke him.” In gang culture, to “smoke” means to kill. Tyler also said they should rob Nate. Tyler, Kidd, Griffin, Knorr, Merritt and L.M. departed in two cars, a white and a blue Buick.

Meanwhile, Doe had returned to Nate’s residence and was resting in her room. Nate was also present. Later, Doe heard a disturbance in front of the residence caused by a prior girlfriend of Nate named Mia. When Doe first moved into the house, Knorr and Mia were also living there, but Mia had since moved out. On this evening, Mia was banging on the window and trying to get Nate to come outside and talk with her. Doe got up and moved to what had been Knorr’s bedroom, which was toward the back of the residence. She fell asleep on Knorr’s bed.

Some time later, Doe awoke and saw a silhouette outside the bedroom window. She then saw four or five people wearing bandanas enter the bedroom through the window. They pointed guns at her and told her not to say anything. Doe was held at gunpoint while others searched the residence for Nate, who had fled upon seeing what was happening. Doe was told to get dressed and was taken into the living room. Meanwhile, the intruders took off their bandanas and rummaged through the house looking for things to steal. Doe heard the names Smash and Five mentioned and saw the intruders put clothes and a stereo inside a sheet which they later took with them.

When the intruders departed, they took Doe as well. She got into the blue Buick with three of them, and they followed the white Buick away from the scene. Doe later identified the three in the car with her as the one called “Five” along with Griffin and Merritt.

They all stopped at an apartment complex on 29th Street that had been the birthplace of the gang. Tyler took Doe aside and said to her that “you’re with us now and I’ll take care of you, and why don’t you work for me?” They later got back in the cars and drove away, telling Doe they are the “mob” and this is the “mob life” and “you’re with the mob now.”

They eventually arrived at the home of A.S., where Doe was taken inside. She saw Knorr, B.K., A.S., another woman and a young boy, as well as the others from the home invasion. Doe was taken to a bedroom, where Tyler, Kidd and Griffin talked about “running a train” on her and forcing her to perform oral sex. Tyler yelled at Doe, “you’re gonna suck up all my homies,” and Kidd and Merritt ordered her to orally copulate “Little Homie.” Merritt further said, “give my little homie some head, you’re a ho anyway.”

Tyler told Doe she was going to go out and start making money for him. Doe was eventually told she had to orally copulate L.M. and was left alone in the room with him. She did as directed and, after eight minutes or so, L.M. departed. Tyler then came in the room and forced Doe to orally copulate him as well.

Later that evening, Doe was again placed in the white Buick and departed with Tyler, Kidd, Griffin, and Knorr. It is unclear whether Merritt accompanied them on this trip. Kidd and Griffin were both armed with handguns. Before leaving, B.K. overheard Kidd and Tyler say, “If somethin’ is gonna be done, the bitch has gotta be iced.” She also heard Tyler say something to A.S. like, “we brought the bitch here so she couldn’t tell.”

After stopping at another residence for 15 or 20 minutes, they drove to an area near railroad tracks and an empty field. Doe was told to get out of the car and to start walking through the field. She did as directed. After a while, Doe started hearing gunshots. She began walking faster and then running and continued to hear gunshots. She also saw bullets hit the ground around her. One of the shots hit Doe in the back just below the shoulder blade. Doe ran toward the light of a house and eventually reached the house, where she yelled for help. A man came outside, saw Doe and carried her onto the porch. He called 9-1-1 for help. Doe told the man the 29th Street Crips had shot her.

According to the prosecution’s gang expert, all of the foregoing actions of the defendants were for the benefit of the 29th Street Crips.

On February 3, 2007, police officers contacted Tyler and Merritt in a hotel room. They found a handgun and ammunition in the room. On February 13, police officers found Griffin in a residence along with a gun and ammunition. On February 28, police officers discovered Kidd in a residence with a handgun and ammunition. All five defendants were charged with robbery in concert, burglary, aggravated kidnapping, conspiracy to commit murder, and attempted murder. On each offense, they were further charged with enhancements for firearm use and committing the offenses for the benefit of a criminal street gang. They were also charged with a separate offense for active participation in a criminal street gang.

[Only the part of the opinion dealing with the “conspiracy to commit murder” charge, is included here]

The case was tried to two juries, one for Kidd alone and the other for the remaining defendants. After his arrest, Kidd had been interviewed by police, and the videotape of that interview was played to his jury alone. In that interview, Kidd first denied any involvement in the matter. However, he eventually admitted he went to Nate’s house, but only to steal something and not to kidnap or shoot anyone. He denied kidnapping or shooting anyone. He also denied having a gun and claimed that he departed with Knorr before the others came out of the house and did not know Doe had been taken with them. He denied accompanying the others to the home of A.S.

Tyler was the only defendant to testify at trial. He acknowledged that he went with Knorr to Nate’s residence that night, but claimed he went there only to allow Knorr to pick up her things.

Tyler claimed he waited in the car while Knorr went inside and that Doe came out with Knorr and departed with them voluntarily. Tyler asserted that, when they left, Doe asked to be taken to a school where she met up with some of her “homeboys.” Doe got out and spoke with four men. Tyler overheard her say “fuck Nate” and told the guys they could go to his house and take whatever they wanted because she left the front door unlocked.

Tyler then drove them to the residence of A.S. and hung out there for a while. Later, Tyler took Doe to meet up with a “date” she had that evening. According to Tyler, that was the last time he saw Doe.

Tyler, Griffin and Kidd were convicted on all charges, and all enhancements were found true. For conspiracy to commit murder, Griffin received an indeterminate term of 25 years to life.

On October 21, 2013, Griffin filed a petition for writ of habeas corpus in the Sacramento Superior Court, which was denied on November 14, 2013. Griffin filed his federal petition for writ of habeas corpus in this court on December 5, 2013.

Opinion
Griffin contends that his due process rights had been violated because his conspiracy to commit murder conviction was not supported by sufficient evidence. The Court of Appeal rejected this claim on direct appeal as follows:

Griffin contends there is insufficient evidence he entered into a conspiracy to murder Doe. Griffin acknowledges there was an agreement among the defendants to commit a robbery but “the codefendants were not of a single mind about the rest of the evening.” Doe testified that Griffin, unlike the others, was quieter and more polite to her. Thus, he argues, “one cannot infer from his behavior after the robbery that he necessarily was in agreement with the other codefendants for the rest of the evening.”

In fact, Doe testified that when they left the home of A.S., Tyler and Griffin told her they were taking her home. She also told Detective Nutley that Tyler and Griffin were opposed to hurting or killing her. Griffin further points out that Doe’s testimony was uncertain as to who actually shot at her. According to Griffin, while the jury could have found he joined at the last minute in the attempt to murder Doe, “the evidence does not support the inference beyond a reasonable doubt that he joined in an agreement to kill before-hand.”

A conspiracy is an agreement between two or more people to commit a public offense. It requires not only a specific intent to agree to commit a public offense but a further specific intent to commit the offense itself. It also requires proof of an overt act committed by one or more of the conspirators in furtherance of the object of the agreement.

The agreement or the unlawful design of [the] conspiracy may be proved by circumstantial evidence without the necessity of showing that the conspirators met and actually agreed to commit the offense which was the object of the conspiracy. While mere association does not prove a criminal conspiracy, common gang membership may be part of circumstantial evidence supporting the inference of a conspiracy. The circumstances from which a conspiratorial agreement may be inferred include the conduct of defendants in mutually carrying out a common illegal purpose, the nature of the act done, the relationship of the parties and the interests of the alleged conspirators.”

Here, in addition to a common gang membership among the alleged conspirators, the evidence showed defendants got together to discuss what was to be done with Doe. Although there may have been disagreement among them, eventually they embarked on a course of action that involved taking Doe to a field, releasing her and then taking shots at her as she attempted to flee. From this evidence alone, a reasonable jury could infer defendants agreed to kill Doe before they ever left the home of A.S. Hence, substantial evidence supports Griffin’s conviction for conspiracy to commit murder.

When a challenge is brought alleging insufficient evidence, federal habeas corpus relief is available if it is found that upon the record evidence adduced at trial, viewed in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia, 443 U.S. 307, 319 (1979). Jackson established a two-step inquiry for considering a challenge to a conviction based on sufficiency of the evidence.

First, a reviewing court must consider the evidence presented at trial in the light most favorable to the prosecution. When faced with a record of historical facts that supports conflicting inferences a reviewing court must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.

Second, after viewing the evidence in the light most favorable to the prosecution, the reviewing court must determine whether this evidence, so viewed, is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. At this second step, we must reverse the verdict if the evidence of innocence, or lack of evidence of guilt, is such that all rational fact finders would have to conclude that the evidence of guilt fails to establish every element of the crime beyond a reasonable doubt.

Superimposed on these already stringent insufficiency standards is the AEDPA requirement that even if a federal court were to initially find on its own that no reasonable jury should have arrived at its conclusion, the federal court must also determine that the state appellate court could not have affirmed the verdict under the Jackson standard in the absence of an unreasonable determination.

A federal habeas court determines sufficiency of the evidence in reference to the substantive elements of the criminal offense as defined by state law. To show that petitioner was guilty of conspiracy to commit murder under California law, the prosecution was required to show that:

· (1)

petitioner and his codefendants entered into an agreement to unlawfully kill Doe

· (2)

each specifically intended to enter into an agreement to kill a human being

· (3)

each of them harbored a specific intent to kill; and

· (4)

one or both of them committed an overt act in furtherance of the agreement.

Petitioner concedes that there was an agreement to commit robbery at Belleau Woods but contends that the co-defendants were not in agreement about the rest of the evening, in particular with respect to what to do with Ms. Doe. Petitioner notes Ms. Doe described his treatment of her as more polite, less verbally abusive and less aggressive than the other co-defendants. Ms. Doe also reported to Detective Nutley that petitioner was opposed to hurting or killing Ms. Doe.

Petitioner also notes that the record does not indicate whether the parties reached any agreement at the last house and that Ms. Doe was unclear whether she saw two shooters or one shooter and whether one of the shooters was co-defendant Kidd or someone else. In sum, petitioner contends that his relative kindness to Ms. Doe prior to the shooting, the lack of direct evidence of an agreement to kill Ms. Doe, and Ms. Doe’s inability to identify whether there were one or two shooters do not support the inference that petitioner joined in an agreement to kill Ms. Doe. To the contrary, based on the evidence in the record as more fully discussed below, a rational trier of fact could find the essential elements of conspiracy to commit murder beyond a reasonable doubt.

Respondent contends that the Court of Appeal’s rejection of petitioner’s sufficiency of evidence claim was neither contrary to, nor an unreasonable application of Jackson. The undersigned agrees. The Court of Appeal identified the elements of the crime of conspiracy to commit murder and explained how circumstantial evidence, including common gang membership, the conduct of the defendants, the nature of the act done, the relationship of the parties and the interests of the alleged conspirators, could be used to prove an agreement or unlawful design.

The evidence shows that petitioner and his codefendants were either members, associates, or allies of a criminal street gang called the 29th Street Crips. (Gang expert opined petitioner was a member of the 29th Street Crips); (gang expert opined defendant Jordan Kidd was a member of the Valley High Crips); (gang expert opined defendant Kimberly Knorr was an associate of the 29th Street Crips); (gang expert opined defendant Zachary Tyler was a member of the 29th Street Crips).

The record also supports the inference that the group, through their conduct, reached an agreement to murder Ms. Doe. As Ms. Doe testified, petitioner, Tyler, and Kidd took her and put her back in the car, after she had been sexually assaulted. She testified that petitioner and Kidd were holding guns. They took her to another house, had her sit in a recliner, and went into another room to talk. After several minutes, they took Ms. Doe and placed her in the backseat of the car between petitioner and Kidd.

Tyler drove the group to an empty field and parked. Petitioner and Kidd exited the car and told Ms. Doe to get out and walk home, pointing towards the field. As Ms. Doe walked through the field, she heard gunshots. She testified that she looked back toward the car and saw two men pointing their guns at her. Based on this testimony, a reasonable jury could infer that at the last house they visited, petitioner reached an agreement with his codefendants to kill Ms. Doe. Petitioner’s sufficiency of the evidence claim should be denied.

For all the foregoing reasons, the petition should be denied. Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A certificate of appealability may issue only “if the applicant has made a substantial showing of the denial of a constitution right.” 28 U.S.C. § 2253(c)(2). For the reasons set forth in these findings and recommendations, a substantial showing of the denial of a constitutional right has not been made in this case.

Accordingly, IT IS HEREBY RECOMMENDED that:

1. Petitioner’s application for a writ of habeas corpus be denied; and

2. The District Court decline to issue a certificate of appealability.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a documents should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed within fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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