The question at the heart of this state habeas case is whether there was sufficient evidence to convict petitioner of aiding and abetting a gang-related murder.

* The evening of July 11, 1989, started out uneventfully for members of the Four Tray Hoover Crips gang and their rivals, the Rolling Forties. Between six and seven p.m. Maurice Taylor, Jerry "Judabean" Knox, "Eight-Ball" and "Big Black," all of them Four Tray Hoovers, were hanging out on the corner of 43rd and Kansas Streets in the city of Los Angeles. Things quickly turned ugly, however, when petitioner Troy Isaiah Mitchell, standing on the nearby second-floor landing of his apartment building, yelled out "Fuck Hoover."1

Taking extreme umbrage, Judabean and his cohorts ran up the staircase from the street to the second-floor landing and kicked in the door to Mitchell's apartment. After a fistfight between gang members, the Hoovers returned to their perch on the street corner. A few minutes later, Mitchell drove by with fellow Rolling Forty members; the group opened fire on the Hoovers. Big Black was shot in the ankle and Judabean in the arm. The former was taken to the hospital while the latter retreated to his aunt's nearby home.

Kimberly Johnston, Judabean's girlfriend, learned of the shooting and immediately came to his aid. She intended to drive him to the hospital, she testified, but they never got there. En route, Judabean asked Johnston to stop in front of petitioner's apartment building, the scene of the earlier altercation. There, a group of men stood on the second-floor landing; one of them held a long-barreled gun in plain sight. Judabean rolled down the car window and yelled in an angry voice, "I wish you would shoot me." He then got out of the car and repeated his challenge.

This turned out to be a bad idea. When the shooting stopped, Judabean was lying on the ground. One bullet had passed through his neck and lodged in his spine; another had passed through his right leg. Johnston drove off in fear, leaving Judabean in the street.

After the second shooting, those on the landing fled. Some ran down the street; others piled into two cars. While speeding away, one car made a U-turn and trampled Judabean's body, crushing his chest. There was testimony that Mitchell was the driver of that car. Mitchell himself told police he was the driver; he later denied driving but seemed to concede he had been in the car.

At trial, Dr. Christopher Rogers, a Deputy Medical Examiner, testified that Judabean's three gunshot wounds--one in the arm, another in the right leg and the last in the neck--would have been treatable. He further testified that, but for the blunt force compression of the chest, Judabean would probably have survived with ordinary medical care. Dr. Rogers concluded that the chest injury was "rapidly fatal" and would have caused death within one or two minutes, even if it had been Judabean's only injury.

Mitchell alone was charged with Judabean's killing; a jury found him guilty of second degree murder. The verdict form also contained two special jury findings: (1) that Mitchell had not committed the crime by personal use of a firearm; and (2) that he had not committed the crime by driving the vehicle that ran over Judabean.2

After unsuccessfully pursuing state court remedies, Mitchell filed a federal habeas petition pursuant to 28 U.S.C. § 2254.3 The district court, adopting the findings, conclusions and recommendations of the magistrate judge, dismissed the petition on the merits and denied a Certificate of Probable Cause.4 We granted Mitchell's request for a Certificate of Probable Cause.5

Mitchell argues that there was insufficient evidence to sustain his murder conviction.6 We review Mitchell's petition de novo. Calderon v. Prunty, 59 F.3d 1005, 1008 (9th Cir.1995). Because the jury found that Mitchell neither fired any of the bullets that struck Judabean nor drove the vehicle that crushed Judabean's chest, he could be guilty of Judabean's murder--if at all--only as an aider and abettor. In California, a person is guilty of aiding and abetting if "he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." People v. Beeman, 35 Cal. 3d 547, 561, 199 Cal. Rptr. 60, 674 P.2d 1318 (1984). To be convicted, an aider and abettor must have criminal intent, and "the requisite intent to render such aid must be formed prior to or during 'commission' of that offense." People v. Cooper, 53 Cal. 3d 1158, 1164, 282 Cal. Rptr. 450, 811 P.2d 742 (1991)(emphasis in original).

Since the jury did not disclose how it thought Mitchell aided and abetted Judabean's murder, we must consider petitioner's involvement in the gang-related activities the night Judabean was killed.

Judabean was shot on two separate occasions. The state does not contend that the first shooting caused a lethal injury. The state does take great pains to connect Mitchell to the second shooting; it argues that, even though Mitchell was found not to have fired any of the shots from the balcony, he intentionally promoted the shooting by his fellow gang members. During deliberations, the jury seemed to focus on the possibility that Mitchell aided and abetted by admitting armed gang members onto the landing of his apartment building. It asked the trial judge for

[f]urther instruction on the meaning of "to aid and abet." Specifically, is the defendant aiding and abetting in the commission of a crime (murder) or the natural consequence (murder) if he allows or facilitates or promotes the introduction of deadly firearms into his home.

If you find that the defendant let or allowed firearms into his apartment with the intent and mental state as defines murder of the first or second degree, then the answer to your question is yes, which means that if you find that the defendant allowed or let the firearm or firearms into his apartment with the intent to use them in the crime of murder, first- or second-degree murder, then the answer is yes. But if you found that the defendant let or allowed the firearms into his apartment without such intent or mental state, then the answer is no.

The jury instruction is correct; on this record, it also leads to only one possible answer: Because Mitchell could not have known that Judabean would appear outside his apartment--deferring medical care in order to taunt his adversaries--there is no way Mitchell could have admitted fellow gang members into his apartment with the intent to commit murder. Thus, even if Mitchell facilitated Judabean's murder by making the landing of his apartment building available to the assailants,8 this actus reus was not coupled with the necessary simultaneous mens rea.9 Evidence that Mitchell may have wanted Judabean dead--that is to say, that he had a motive for murder--is not proof of intent.10B. The Car Assault

The jury might have rested its verdict on Mitchell's participation in running Judabean over with the car. Because this was the actual cause of Judabean's death, Mitchell could have been found guilty of aiding and abetting if there were proof that he instigated, encouraged or assisted the driver in crushing Judabean with the car. See Beeman, 35 Cal. 3d at 561, 199 Cal. Rptr. 60, 674 P.2d 1318. But there is no such evidence. One witness testified that Mitchell drove the car that ran over Judabean but the jury rejected this theory in its special finding: "We further find the defendant, Troy Isaiah Mitchell, was not the driver of the car which drove over Jerry Knox."

As to what else Mitchell might have done to abet the running over of Judabean, the record is silent. There is no proof that the vehicle that killed Judabean was owned or provided by Mitchell for the purpose of doing the running over; there is no proof that Mitchell said anything to the driver of the vehicle in the minutes between the shooting and the fatal U-turn; in short, there is nothing at all to suggest that Mitchell helped bring about Judabean's death, except perhaps by adding weight to the car that ran over Judabean's body. There is, in other words, a massive failure of proof that Mitchell aided and abetted Judabean's killing.

The state tries hard to bridge the gap in its evidence by arguing that Mitchell aided and abetted the killing by fanning the fires of gang warfare that culminated in Judabean's death. It offers this recitation of facts that, in its view, support the jury's inference of guilt:

[T]he other princip[als] were appellant's fellow gang members.... [A]ppellant knew additional crimes would be committed because appellant seemed determine[d] to fuel escalating hostilities. Additionally, [appellant stated that] he got into a ... car ... which ran over Judabean's body.... [Appellant] fled with his fellow gang members, and remained with them throughout the evening, without ever trying to distance himself from the gang or the crime.

Appellee's Supplemental Br. at 21-22.

The state's argument smacks of guilt by association. Except in West Side Story, gang members do not move in lock-step formation. Gang movements are, in fact, often more chaotic than concerted. See Jeffrey J. Mayer, Individual Moral Responsibility and the Criminalization of Youth Gangs, 28 Wake Forest L.Rev. 943, 949-50 (1993)(describing most gangs as "disorganized" and decrying "efforts to prosecute ... gang members on the basis of social ties," as opposed to "traditional legal principles," as a "panic response"). Membership in a gang cannot serve as proof of intent, or of the facilitation, advice, aid, promotion, encouragement or instigation needed to establish aiding and abetting. To hold otherwise would invite absurd results. Any gang member could be held liable for any other gang member's act at any time so long as the act was predicated on the "common purpose of 'fighting the enemy.' " Curtin v. Lataille, 527 A.2d 1130, 1133 (R.I.1987).11

Forsaking gang membership as a basis for liability, the state cannot rely on Mitchell's presence at the time of the shooting, or in the assaulting car, to establish liability. That Mitchell may be a thoroughly evil person does not, under California law, make him a murderer.12

* * *

Because there is no evidence from which a rational jury could have inferred that Mitchell aided and abetted Jerry Knox's murder, we REVERSE the district court's denial of the petition for a writ of habeas corpus and REMAND for issuance of the writ.

We are required to "consider[ ] the evidence in a light most favorable to the prosecution and defer[ ] to the trier of fact's presumed resolution of conflicting inferences most favorably to the prosecution." Payne v. Borg, 982 F.2d 335, 339 (9th Cir.1992) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). Viewed in this light, the evidence in this case could allow a rational trier of fact to find that Mitchell aided and abetted in the murder of Knox.

The first juncture at which Mitchell could have aided and abetted Knox's murder was when the shooters on Mitchell's landing fired at Knox.

In a special verdict, the jury found that Mitchell himself did not fire at Knox. Moreover, mere participation in a gang that is involved in a homicide is an insufficient basis from which to infer a particular gang member's intent to commit the homicide. But here, the record contains other evidence to support a conclusion that Mitchell intentionally aided and abetted the shooting of Knox by permitting heavily-armed fellow gang members to gather just outside Mitchell's apartment before the midnight shooting.

First, the record contains facts that could support an inference that killing Knox was a personal priority for Mitchell. Mitchell had a motive to kill Knox because Knox had broken into Mitchell's apartment earlier that evening. Some evidence also indicated that Mitchell and Knox had gotten into a fistfight during Knox's break-in and that Mitchell had wounded Knox in a drive-by shooting soon after the fight.

Second, the record indicates that Mitchell's apartment served as headquarters for the day's activities leading up to Knox's murder. In particular, the record indicates that Mitchell's gang gathered at his apartment and was heavily-armed when Knox arrived later that night.

Given these facts, a reasonable jury could have concluded that Mitchell intended to aid and abet his fellow gang members in killing Knox if the opportunity presented itself. This circumstantial evidence and the logical inferences drawn from it are sufficient to sustain Mitchell's conviction. See Payne, 982 F.2d at 341 (denying habeas relief to petitioner convicted of intentionally aiding first-degree murder because "[c]ircumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction") (quoting United States v. Lewis, 787 F.2d 1318, 1323 (9th Cir.1986)).

The second juncture at which the jury could have found that Mitchell aided and abetted Knox's murder was when Mitchell joined his fellow gang members in a car which, according to some testimony, was the car that drove over Knox's injured body and crushed his chest.

In its special verdict, the jury found that Mitchell was not the driver of that car. The special verdict did not determine, however, that Mitchell played no role in this assault. As noted above, there is evidence that could support the inference that Mitchell wanted to kill Knox. There is also some evidence that Mitchell was in the car that ran over Knox. A rational jury could infer from this evidence of Mitchell's presence in the car and his animus toward Knox that Mitchell encouraged the driver of the car to make a sudden U-turn and run over Knox. Thus, the evidence in the record could support a conclusion that Mitchell intentionally aided and abetted Knox's murder by encouraging the assault with the car. See Payne, 982 F.2d at 341 (upholding a conviction where "[a] rational trier of fact could prefer the incriminating explanation for [petitioner's] conduct over explanations which would be inconsistent with an intent to aid in the killing").

Mitchell also argues that he was denied due process because the trial court failed to instruct the jury as to intent, an essential element of the offense of aiding and abetting second-degree murder. Because Mitchell did not object to the jury instructions at the time of trial, the instructions are reviewed for plain error. United States v. English, 92 F.3d 909, 914 (9th Cir.1996).

Contrary to Mitchell's contention, the record shows that the trial court properly instructed the jury on the element of intent. The trial court issued standard jury instructions taken from California Jury Instructions (Criminal) ("CALJIC") 3.01. CALJIC 3.01, as submitted to the jury, explicitly sets forth intent as an element of aiding and abetting second-degree murder:

A person aids and abets the commission of a crime when he or she, (1) with knowledge of the unlawful purpose of the perpetrator and (2) with the intent or purpose of committing, encouraging, or facilitating the commission of the crime, by act or advice aids, promotes, encourages or instigates the commission of the crime.

CALJIC 3.01 (emphasis added).

The jury later requested further instruction on the meaning of "to aid and abet." The jury asked: "Specifically, is the defendant aiding and abetting in the commission of a crime (murder) or the natural consequence (murder) if he allows and/or facilitates and/or promotes the introduction of deadly firearms into his home?"

The trial court responded with a supplemental instruction which clearly reiterated the element of intent:

[I]f you found that the defendant allowed or let the firearm or firearms into his apartment with the intent to use them in the crime of murder, first- or second-degree murder, then the answer is yes. But if you found that the defendant let or allowed the firearms into his apartment without such intent or mental state, then the answer is no.

Because the trial court clearly indicated intent as an element of the offense in both the original and supplemental jury instructions, there was no plain error.

The standard of review in this case does not permit us to grant habeas relief solely because we are unsure whether the petitioner intentionally aided and abetted in the killing. "We are required to deny the writ, even if we ourselves might not be persuaded beyond a reasonable doubt, if any rational trier of fact could have been so persuaded...." Payne, 982 F.2d at 339. I think the circumstantial evidence in this case is sufficient to permit a rational jury to find that Mitchell intentionally aided and abetted in Knox's killing. Accordingly, I would affirm.