Wilson C. Ortega v. SCOTT KERNAN, Director of Corrections

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILSON C. ORTEGA,
Petitioner-Appellant,
v.
SCOTT KERNAN, Director of
Corrections,
Respondent-Appellee.
No. 16-55927
D.C. No.
2:12-cv-09562-PSG-RAO
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted July 10, 2018
Pasadena, California
Before: BERZON and N.R. SMITH, Circuit Judges, and CASTEL,** District
Judge.
Petitioner Wilson Ortega appeals the district court’s denial of his habeas
petition challenging his California state court convictions for committing assault
FILED
JUL 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable P. Kevin Castel, United States District Judge for the
Southern District of New York, sitting by designation.

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with a firearm, Cal. Penal Code § 245(a)(2); making criminal threats, id. § 422;
threatening a witness, id. § 140(a); and committing false imprisonment, id. § 236.
We affirm.
We need not, and so do not, decide whether the California Supreme Court
addressed the merits of Ortega’s ineffective assistance of counsel claim. Instead,
we conclude that the California Supreme Court’s rejection of Ortega’s ineffective
assistance of counsel claim was “correct under de novo review and therefore
necessarily reasonable under the more deferential AEDPA standard of review.”
Berghuis v. Thompkins, 560 U.S. 370, 389 (2010). Ortega’s counsel’s allegedly
deficient failure to object to the government’s gang expert’s description of other
homicide crimes committed by two North Hollywood Boyz members, Luis Vega
and Jose Orozco, could not have prejudiced Ortega under any standard of review.
See Strickland v. Washington, 466 U.S. 668, 687 (1984).
First, a great deal of inflammatory gang evidence was admitted against
Ortega and not challenged before us. The government’s gang expert testified that
the North Hollywood Boyz was “a pretty hardcore gang,” and explained, “The
primary activity for Boyz that I’ve been involved with is the murder, extortion,
robberies, [and] . . . assault[s] with deadly weapons. They fly the gamut of . . . the
violent crime area.” The jury heard that Ortega himself was involved in a “gang
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related” manslaughter case in 2004, and that a victim in this case had testified in
that case. The jury heard testimony that “[g]angs rely on fear and intimidation in
the community to survive. . . . [I]f you have people report crimes against the gang,
it weakens the gang because they go to jail . . . .” They saw pictures of Ortega’s
gang tattoos. They heard that Ortega’s gang moniker was “Trigger.” Any
additional impact of the details of particular crimes committed by other gang
members added little to the effect of the gang evidence as a whole on the jury.
Second, Orozco’s and Vega’s convictions were not presented to the jury as
substantively attributable to Ortega, either in the gang expert’s testimony or during
closing arguments. Instead, their convictions were properly admitted to show that
members of the gang engaged in certain types of crime, a necessary predicate to the
charged gang enhancement. See Cal. Penal Code § 186.22(e), (f). The addition of
some details as to the crimes underlying those convictions, even if inflammatory
and improper, could not have reasonably affected the outcome, in light of the other
gang evidence introduced and the peripheral import of the evidence challenged.
In sum, Ortega cannot show that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694.
AFFIRMED.
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