McDonald, an active gang member, committed a robbery of a woman in an area close to gang territory but without any evidence by clothing or statements that he was a member of a gang. At his trial a deputy sheriff testified extensively to McDonald’s membership in the gang and their policy of committing crime to gain territory, add graphics on buildings, and frighten the community.

The prosecution added illegal possession of a weapon and commission of a prior robbery, both enhancements to a sentence of robbery .The state court jury found the defendant guilty of robbery and included the enhancements in the sentence. The California Court of Appeal and state Supreme Court upheld the guilty verdict and sentence. Defendant subsequently filed habeas corpus in federal District Court but the judge confirmed all state court decisions. The defendant filed habeas corpus of this decision and appealed to the Ninth Circuit. The majority of the three judge panel affirmed the verdict but reversed the gang member enhancement.

The court majority (the 9th Circuit panel) decision held the deputy’s testimony insufficient to support the jury verdict of sentence enhancements. The dissenting judge cited federal law-now in a federal case-and Supreme Court precedent to apply AEDPA rules warranting a different result upholding the jury on the gang membership.This 2-1 vote overruled all California courts and the federal district court.

PLEASE DO NOT EDIT.  YOU MISREAD THIS CASE,