Emery v. Clark, No. 08-55249 (5-27-11) (per curiam with O'Scannlain, Silverman and Conlon, D.J.).

The issue in this petition was a state's interpretation of a special circumstance. The special circumstance was a street gang enhancement. It has an element of specific intent to promote, further, or assist criminal conduct by gang members. The question was whether the conduct was for other conduct apart from the crime of conviction. The 9th had certified the issue to the California Supreme Court, which accepted and then declined the request because it decided a case that specifically held that it could include the instant conviction. With that issue settled, and with AEDPA deference, the 9th upheld the denial of the petition. It found that there was sufficient evidence for a finding that the murder of a store clerk was gang related and for the furtherance of gang activities.