Joe Fidel Flores v. W.L. MONTGOMERY, Acting Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOE FIDEL FLORES,
Petitioner-Appellant,
v.
W.L. MONTGOMERY, Acting Warden,
Respondent-Appellee.
No. 14-56977
D.C. No.
2:14-cv-02687-RGK-KK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted February 5, 2018
Pasadena, California
Before: CALLAHAN and NGUYEN, Circuit Judges, and PRATT,** District
Judge.
Petitioner Joe Fidel Flores (“Flores”) appeals from the district court’s denial
of his petition for a writ of habeas corpus under the Antiterrorism and Effective
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Robert W. Pratt, United States District Judge for the
Southern District of Iowa, sitting by designation.
FILED
MAR 13 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254.1 We have jurisdiction under 28
U.S.C. § 2253. Under AEDPA, Flores can obtain relief on claims that have been
“adjudicated on the merits in State court proceedings” only if the state court’s
adjudication resulted in a decision that was (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” or (2) “based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d); see also Deck v. Jenkins, 814 F.3d 954, 977
(9th Cir. 2014) (reviewing the decision of the California Court of Appeal as the last
reasoned decision of the state court). Reviewing Flores’s claims de novo, see
Emery v. Clark, 643 F.3d 1210, 1213 (9th Cir. 2011), we affirm.
1. A jury convicted Flores, a known gang member, of first-degree murder
and found both the gang-enhancement and special-circumstances allegations to be
true.2 On direct appeal, the California Court of Appeal affirmed. Flores now
argues the state appellate court unreasonably applied the law clearly established in
Jackson v. Virginia, 443 U.S. 307 (1979), and based its decision on an
1 Flores asks us to take judicial notice of state court documents filed in a
separate case that arose out of the same circumstances upon which Flores’s own
conviction is based. The Warden does not oppose the motion. We may properly
take judicial notice of court filings and other matters of public record. See Fed. R.
Evid. 201(b)–(d). Therefore, we grant Flores’s motion to take judicial notice.
2 Because the parties are familiar with the facts and procedural history, we
restate them only as necessary to explain our decision.

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unreasonable determination of the facts when it held there was sufficient evidence
to support the jury’s gang-enhancement and special-circumstances findings.
The gang enhancement may be applied only if the prosecution proves the
following two elements beyond a reasonable doubt: (1) Flores committed a felony
“for the benefit of, at the direction of, or in association with any criminal street
gang,” and (2) he did so “with the specific intent to promote, further, or assist in
any criminal conduct by gang members.” Cal. Penal Code § 186.22(b)(1). In
order to apply the special-circumstances allegation, the prosecution needed to
prove Flores (1) “intentionally killed the victim while [he] was an active
participant in a criminal street gang” and (2) did so “to further the activities of the
criminal street gang.”3 Id. § 190.2(a)(22).
Based on the evidence in the record, Flores cannot overcome the double
layer of deference we must give to the state appellate court’s decision regarding the
sufficiency of the evidence. See Coleman v. Johnson, 566 U.S. 650, 651 (2012)
(per curiam) (“We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of judicial deference.”).
The gang expert testified Flores was a member of a gang that commanded respect
from the community through fear, violence, and intimidation; an apparent affront
3 Flores only challenges the second element of the section 190.2(a)(22)
analysis.

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could be seen as disrespectful and would not be tolerated by the gang, and a gang
member could be expected to retaliate immediately with violence to regain respect.
The expert further testified that a gang member intervening in a large fight between
non-gang members would essentially be acting on behalf of his gang and putting
his gang’s reputation at risk. Additionally, the expert testified a gang member
would not need to fear significant harm during a physical assault because he would
know that his fellow gang members would come to his aid. Furthermore, the
testimony of a former high-ranking member of Flores’s gang corroborated that of
the gang expert.
A reasonable jury could infer from the testimony of the gang expert and the
corroborating testimony of the former gang member that Flores committed the
murder for the benefit of, or in association with, his gang. See People v. Albillar,
244 P.3d 1062, 1073 (Cal. 2010) (“Expert opinion that particular criminal conduct
benefited a gang by enhancing its reputation for viciousness can be sufficient to
support raise the inference that the conduct was ‘committed for the benefit of . . .
a[] criminal street gang’ within the meaning of section 186.22(b)(1).”).
A jury could also find based on the same testimony that Flores committed
the murder with the specific intent to aid in the criminal conduct of other gang
members and intentionally killed the victim while an active gang member to
further the criminal activities of his gang. See Emery, 643 F.3d at 1215 n.2 (“As

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there is no separate authority interpreting the language ‘to further the activities of a
criminal street gang,’ we intend our discussion of the sufficiency of the evidence as
to specific intent under section 186.22(b)(1) to pertain to the section 190.2(a)(22)
special circumstance as well.”).
On habeas review, we cannot hold unreasonable the California Court of
Appeal’s determination that there was sufficient evidence in the record for the jury
to find the gang-enhancement and special-circumstances allegations true.
2. Flores also argues the state court of appeal unreasonably rejected his
prosecutorial-misconduct claim. We treat Flores’s briefing on the uncertified
claim as a motion to expand the certificate of appealability. See 9th Cir. R. 22-
1(e). Because Flores has not made a “substantial showing of the denial of a
constitutional right,” the motion is denied. See 28 U.S.C. § 2253(c)(2); Doe v.
Woodford, 508 F.3d 563, 567 (9th Cir. 2007).
AFFIRMED.

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