Opinion
F072774
03-01-2018
THE PEOPLE, Plaintiff and Respondent, v. DONTRELL BLINKS, Defendant and Appellant.
James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF160442A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Dontrell Blinks was charged with possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1) [count 1]); possession of ammunition by a felon (§ 30305, subd. (a)(1) [count 2]); gang participation (§ 186.22, subd. (a) [count 3]); and misdemeanor obstruction of a peace officer (§ 148, subd. (a)(1) [count 4]). The information further alleged: as to counts 1 through 3, he was convicted of grossly negligent discharge of a firearm in 2003 and gang participation in 2012, both of which constitute "strike" offenses (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)) and serious felonies (§ 667, subd. (a)); as to counts 1 through 3, he served prison terms for the aforementioned 2003 and 2012 convictions as well as a 2004 conviction for possession of a firearm by a felon (§ 667.5, subd. (b)); as to count 1, he was armed with a deadly weapon (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)); and, as to counts 1 and 2, he committed the offense for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)).
Subsequent statutory citations refer to the Penal Code.
Following a trial, the jury found defendant guilty as charged. In addition, it found he was armed with a deadly weapon in connection with count 1 and he committed the offenses underlying counts 1 and 2 for the benefit of, at the direction of, or in association with a criminal street gang. In a bifurcated proceeding, the trial court found true the remaining special allegations. Subsequently, the court dismissed the 2003 "strike" conviction pursuant to section 1385. Defendant received an aggregate sentence of 20 years on count 1, consisting of a doubled base term of six years plus four years for the gang enhancement, five years for the serious felony conviction in 2003, and five years for the serious felony conviction in 2012; and a concurrent sentence of 180 days on count 4. Execution of punishment on counts 2 and 3 were stayed pursuant to section 654.
On appeal, defendant makes two contentions. First, the gang enhancement finding on counts 1 and 2 must be reversed because the evidence did not establish he committed the underlying crimes for the benefit of a gang and intended to promote, further, or assist in any criminal conduct by gang members. Second, the gang participation conviction on count 3 must be reversed because the evidence did not establish felonious criminal conduct was committed by at least two gang members. The Attorney General concedes the evidence did not support the gang participation conviction but maintains substantial evidence established both elements of the gang enhancement.
We accept the Attorney General's concession, reverse the gang participation conviction, and affirm the judgment in all other respects.
STATEMENT OF FACTS
I. Prosecution's case-in-chief.
a. The search.
On May 30, 2015, at approximately 3:40 a.m., several members of the Bakersfield Police Department, including Officers Dickson, Esparza, Gavin, McIntyre, and Montgomery, executed a search warrant for a firearm at a Hoover Street address (hereinafter, "the Hoover Street residence"). As they approached the front screen door, a dog started barking. Esparza, who led the group, heard someone inside the house say, "Who is it?" Defendant opened the door. Esparza identified himself and ordered defendant to "come on out with his hands up." Instead, defendant backpedaled; turned around and "briskly" walked approximately 20 feet down the hallway; and tossed a black object into the southeast bedroom. He then "brisk[ly] walk[ed] right towards" Esparza. Before reaching the front screen door, defendant turned into the kitchen and headed to a converted garage. Meanwhile, Esparza shouted, "Gun, gun, gun." He lost sight of defendant after the latter proceeded to the converted garage.
Outside, Gavin spotted defendant on top of the roof and alerted Dickson and Montgomery. Dickson witnessed defendant "jump[ing] off the roof" and ordered him to stop. Defendant ignored the command, hopped over a fence, and fled the scene.
In the living room and kitchen of the residence, Esparza encountered seven other individuals, including Avontis James and Antonio Scott. All were detained. In the southeast bedroom, the officers retrieved a black Springfield Armory XD .40 caliber firearm, which was loaded. The gun was unregistered in California.
b. Defendant's capture.
On June 9, 2015, at approximately 4:30 p.m., McIntyre and Montgomery were in a patrol vehicle when they saw defendant in front of a residence that was "two houses north" of the Hoover Street residence. Montgomery left the vehicle and ordered defendant to halt. When defendant went inside that neighboring home, Montgomery sprinted to the backyard while McIntyre stayed in the front yard. Four to five minutes later, Timothy Toralba exited the residence and told McIntyre that defendant "would be coming out soon." Shortly thereafter, defendant exited the residence and surrendered.
c. Gang evidence.
On March 17, 2010, Officer Kroeker pulled over a vehicle driven by defendant. Darius Robinson was in the passenger seat. Defendant and Robinson admitted they were members of the Eastside Crips. On the dashboard, Kroeker saw a photograph of defendant and Michael Carter. Defendant stated he and Carter were friends. Kroeker knew Carter had the gang moniker "Little Pooh."
On May 23, 2010, Kroeker encountered defendant and Travell Clark near Elk's Lodge, a nightclub. Defendant disclosed Elk's Lodge was a "location where Eastside Crips gang members associate." Kroeker knew Clark was an Eastside Crip.
On September 11, 2011, Officer Woods arrested defendant for possession of methamphetamine for sale. Defendant admitted he was an Eastside Crip and had the gang moniker "Pooh Bear."
On November 22, 2014, Officer Malley encountered Treyonte Hogg at Elk's Lodge. Hogg admitted he was a member of the Spoonie G Crips. He told Malley that defendant was "his big homie within the Eastside Crips" and had the gang moniker "Pooh Bear."
Montgomery, the prosecution's gang expert, testified the Eastside Crips are a criminal street gang in Bakersfield. They claim the color royal blue and territorialize the area bounded west by Union Avenue, east by Washington Street, north by East California Avenue, and south by East Belle Terrace. That area contains the relevant block of Hoover Street. The gang's rivals include the Country Boy Crips, the Westside Crips, and Bloods. Eastside Crips "show their disrespect to other gangs" "[w]ith tattoos and/or graffiti." For example, a tattoo of a crossed-out letter S disparages the Country Boy Crips, who are "the furthest south African-American gang in Bakersfield" and alternatively known as "Southside."
The Eastside Crips have several subsets, including the East 11 Project Crips, the Clifton Mob Crips, the Stroller Boy Crips, and the Spoonie G Crips. In particular, Spoonie G Crips identify with the letters S and G (for "Spoonie G") and the number 3 (for Third Street, "the territory that they claim").
The primary activities of the Eastside Crips include murder, assault with a weapon, robbery, carjacking, burglary, vehicle theft, unlawful firearm possession, and narcotic sales. According to Montgomery, guns play "a huge role in the Eastside Crips." In addition to facilitating the aforementioned crimes, possession of a gun is a "status symbol":
Montgomery identified the following predicate offenses committed by members of the Eastside Crips: (1) Willie Roberts was convicted of possession of a firearm by a gang member in 2010; (2) Clark was convicted of possession of a firearm by a felon in 2012; (3) Troy Stewart was convicted of possession of a controlled substance for sale in 2014; and (4) Hogg was convicted of non-residential burglary in 2015.
"Being caught with a firearm carries a stiff sentence, essentially. If a gang member is going to carry a firearm, other members will see that as a sign of power. Basically, that that member is down for the cause and not
afraid of law enforcement, above the law. And it shows they have power within the streets, and they are not afraid to express themselves with it."Profits "turned from slinging narcotics" are "used to purchase ammunition" and "firearms from people who . . . are in a pinch for money." Because many gang members are unable to purchase firearms due to their criminal records, those members "will break into houses [and vehicles] and steal [them]." Eastside Crips also share "gang gun[s]" with one another.
Montgomery opined defendant was an Eastside Crip at the time of the search. During prior contacts with law enforcement, defendant (1) admitted he was an Eastside Crip; (2) admitted he was a Spoonie G Crip; (3) wore royal blue apparel; (4) wore "military issue dog tags, with the letter S on one dog tag and G on the other dog tag"; (5) was with known Eastside Crips, including Carter, Clark, Curtis Moore, and Toralba; and (6) was at Elk's Lodge, a known Eastside Crips hangout. Hogg, an admitted Eastside Crip, referred to defendant as his "big homie," a designation reserved for "older, seasoned gang members." Finally, defendant exhibited numerous gang-related tattoos, including (1) the letters "S" and "G" on his chest; (2) the letters "S" and "G" and the number 3 on his right arm; (3) a crossed-out letter "S" on his right hand; (4) the letter "G" on his left hand; (5) the phrase "G-Code" on his neck; and (6) the letters "B" and "G."
Montgomery explained "G-Code" is "a term used on the streets that the gangsters will live by . . . [the] rules of being a gangster."
Montgomery explained the letters B and G stand for "baby gangsters" which, in turn, refers to those who "have been a gangster their entire life since they were a baby."
Montgomery also opined Scott was an Eastside Crip at the time of the search. During a prior contact with law enforcement, Scott and his companion admitted they "associate[d] with" the Eastside Crips.
In response to the prosecutor's hypothetical question, which mirrored the facts shown by the evidence, Montgomery opined an Eastside Crip unlawfully possesses a loaded firearm for the benefit of, at the direction of, or in association with the gang when he carries the weapon "in a residence in Eastside Crip territory" and in the presence of "additional Eastside Crips . . . at [that] residence." Montgomery noted members "often flee to residences of [other] Eastside Crips . . . because they can have comfort and shelter there." In response to another hypothetical question mirroring the facts shown by the evidence, Montgomery opined an Eastside Crip discards the aforementioned firearm for the benefit of, at the direction of, or in association with the gang when he does so "in the presence of at least one other Eastside Crip" who "now . . . has access to that firearm."
II. Defense's case-in-chief.
James lives at the Hoover Street residence. Since December 26, 2014, the date his uncle moved out, no one has occupied the southeast bedroom of the residence.
On May 30, 2015, at approximately 3:00 a.m., James "saw green lights dancing across [his] front lawn." He then heard the officers outside instructing him to "open the door or they w[ere] going to shoot." After James opened the screen door, the officers "[e]scorted everyone out the house," "search[ed] the house," "ran everybody['s] names," and "let [them] all go." At no point did James observe any of his guests carry a firearm, enter the southeast bedroom, stand on the rooftop, or run away.
James testified defendant was not at his home at the time of the search, specifying he saw defendant for the first time at trial.
DISCUSSION
I. Standard of review.
To determine the sufficiency of the evidence to support a conviction or an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Albillar (2010) 51 Cal.4th 47, 59-60; People v. Tripp (2007) 151 Cal.App.4th 951, 955.) We "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Redmond (1969) 71 Cal.2d 745, 755.) If the circumstances, plus all the logical inferences the trier of fact might have drawn from them, reasonably justify a finding, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. (People v. Albillar, supra, at p. 60; People v. Tripp, supra, at p. 955.) " 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.' [Citation.]" (People v. Lee (2011) 51 Cal.4th 620, 632.)
II. Substantial evidence supported the gang enhancement finding with respect to counts 1 and 2.
"Section 186.22, subdivision (b)(1) imposes various sentencing enhancements on a defendant convicted of a gang-related felony committed with the specific intent to promote, further, or assist in any criminal conduct by gang members." (People v. Franklin (2016) 248 Cal.App.4th 938, 948 (Franklin).) "There are two prongs to the gang enhancement under section 186.22, subdivision (b)(1) . . . . The first prong requires proof that the underlying felony was 'gang related,' that is, the defendant committed the charged offense 'for the benefit of, at the direction of, or in association with any criminal street gang.' [Citations.] The second prong 'requires that a defendant commit the gang-related felony "with the specific intent to promote, further, or assist in any criminal conduct by gang members." ' [Citations.]" (Ibid.)
" 'In order to prove the elements of the criminal street gang enhancement, the prosecution may . . . present expert testimony on criminal street gangs.' [Citation.] ' "Expert opinion that particular criminal conduct benefited a gang" is not only permissible but can be sufficient to support [a] gang enhancement.' [Citations.] While an expert may render an opinion assuming the truth of facts set forth in a hypothetical question, the 'hypothetical question must be rooted in facts shown by the evidence.' [Citation.]" (Franklin, supra, 248 Cal.App.4th at pp. 948-949.) "As for the specific intent prong, ' "[i]ntent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense." ' [Citation.]" (Id. at p. 949.)
Defendant does not contest he "belonged to a gang," i.e., the Eastside Crips, and "illegally possessed a gun" and barely challenges the conclusion that Scott was an Eastside Crip at the time of the search. Nonetheless, defendant claims the evidence did not establish either element of the gang enhancement.
The record—viewed in the light most favorable to the prosecution—demonstrates defendant, an Eastside Crip, possessed a loaded, unregistered firearm at the Hoover Street residence. Scott, another Eastside Crip, was also at this residence. After encountering Esparza at the front door, defendant walked briskly away from Esparza down a hallway to a bedroom. He tossed the gun into that bedroom and then returned to Esparza's location. Before reaching the front door, defendant turned into the kitchen and to the garage and fled. Montgomery testified that unlawful firearm possession is one of the primary activities of the Eastside Crips and that the gang territorializes an area in Bakersfield that contains the relevant block of Hoover Street. In response to a hypothetical question that was " 'rooted in facts shown by the evidence' " (People v. Vang (2011) 52 Cal.4th 1038, 1045), Montgomery opined an Eastside Crip's possession and disposal of a loaded firearm in a residence in the gang's territory and in the presence of another Eastside Crip benefits the gang in at least two ways. First, such a residence functions as a safe house for other members. Second, consistent with members' practice of sharing guns, which facilitate the gang's illicit activities (e.g., murder, assault with a weapon, robbery, carjacking, burglary, vehicle theft, and narcotic sales), the firearm is easily accessible to the Eastside Crips who are at the residence.
As noted, the specific intent to promote, further, or assist in any criminal conduct by gang members " ' "is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense." ' [Citation.]" (Franklin, supra, 248 Cal.App.4th at p. 949.) Defendant's gang membership and that the crimes were perpetrated in gang territory "bolster[s] the . . . theory that he acted with intent to benefit his gang . . . ." (People v. Sanchez (2016) 63 Cal.4th 665, 699.) That intent is further supported by the evidence defendant possessed the loaded firearm in a house in gang territory where a fellow gang member (Scott) was present. (See People v. Williams (2009) 170 Cal.App.4th 587, 625.) That defendant, when confronted by Esparza, did not escape immediately but, instead, went to the southeast bedroom to dispose of the gun—a choice that required him to then return to the area of Esparza's location to gain access to the kitchen and garage for his escape, further established his intent. A trier of fact could reasonably conclude defendant took this riskier, circuitous route to leave the weapon in a place where a fellow gang member, like Scott, could procure it.
Defendant cites In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.); People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon); People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa); In re Daniel C. (2011) 195 Cal.App.4th 1350 (Daniel C.); and People v. Rios (2013) 222 Cal.App.4th 542 (Rios), all of which involved the reversal of a gang enhancement finding. These cases, however, are not persuasive.
In Frank S., a police officer pulled over a bicycle ridden by the minor and discovered a red bandana and a concealed fixed blade knife, inter alia, in his possession. The minor stated he "ha[d] several friends in the northern gangs," "had been attacked two days prior," and "needed the knife for protection against 'the Southerners' because they fe[lt] he support[ed] northern street gangs." (Frank S., supra, 141 Cal.App.4th at p. 1195.) At the contested jurisdiction hearing, the gang expert testified the minor was an active Norteño and "possessed the knife to protect himself." (Ibid.) She stated "a [Norteño] gang member would use [a] knife for protection from rival gang members and to assault rival gangs." (Ibid.) The expert opined the minor's knife possession benefited the Norteños because "it helps provide them protection should they be assaulted." (Id. at p. 1196.) In contrast to the instant case, the prosecution in Frank S. provided no evidence the minor was in gang territory or accompanied by another gang member. (Id. at p. 1199.) In addition, the expert's opinion was not based on a hypothetical question mirroring the specific facts of the case shown by the evidence. Rather, she "simply informed the judge of her belief of the minor's intent with possession of the knife . . . ." (Ibid.) Accordingly, we reversed the juvenile court's gang enhancement finding. (Id. at p. 1200.)
In Ramon, a sheriff's deputy pulled over a stolen truck driven by Ramon and discovered an unregistered handgun under his seat. (Ramon, supra, 175 Cal.App.4th at pp. 846-847.) It was undisputed that Ramon and his male passenger were gang members (Colonia Bakers) and the traffic stop occurred in gang territory. (See id. at pp. 849-850.) At trial, the gang expert testified the Colonia Bakers primarily engaged in sales and possession of narcotics, theft, extortion, burglaries, robberies, car theft, and victim and witness intimidation. He opined the possession of a stolen truck and an unregistered firearm by two Colonia Bakers in gang territory benefited the gang because those members could " 'conduct any one of [the aforementioned] crimes' " and then " 'dispose of either [the truck or the firearm] without having to worry about having ties back to [them].' " (Id. at pp. 847-848.) Because "the gun and the stolen vehicle could be used to facilitate the commission of a crime" (id. at p. 849, italics added) and "the Colonia Bakers commit crimes" (ibid.), the expert deduced Ramon and his companion "must have been acting on behalf of the Colonia Bakers" and "intended to promote the Colonia Bakers" (ibid.). On appeal, we reversed the jury's gang enhancement finding. (Id. at p. 858.) We concluded "[t]here were no facts from which the expert could discern whether Ramon and [his companion] were acting on their own behalf the night they were arrested or were acting on behalf of the Colonia Bakers." (Id. at p. 851.) Although Ramon was with another gang member in gang territory, we found "[t]hese facts, standing alone, are not adequate to establish that Ramon committed the crime with the specific intent to promote, further, or assist criminal conduct by gang members." (Ibid.; but see Ochoa, supra, 179 Cal.App.4th at p. 661, fn. 6 (Ochoa) ["We would find the evidence in Ramon sufficient to meet the specific intent prong of the [gang enhancement] statute."].) We also emphasized "[t]he analysis might be different if the expert's opinion had included 'possessing stolen vehicles' as one of the activities of the gang." (Ramon, supra, at p. 853.) Here, by contrast, defendant's specific intent was inferred from not only his gang membership and the perpetration of the offenses in a house in Eastside Crip territory but also his actions at the time of the search. Instead of fleeing the residence at once, he delayed his escape to leave the gun in the house and in Scott's proximity. It was not, as in Ramon, " ' "mere speculation" ' " (id. at p. 851) that defendant acted not on his own behalf but on behalf of the gang. Furthermore, Montgomery testified unlawful firearm possession is one of the Eastside Crips' primary activities.
In Ochoa, the defendant, a member of Moreno Valley 13, committed a carjacking. He "was alone" and "made no apparent gang signs or signals." (Ochoa, supra, 179 Cal.App.4th at p. 653.) The victim, however, believed the defendant was involved in a gang because he was "Mexican with short hair." (Ibid.) At trial, the gang expert testified a carjacking benefited Moreno Valley 13 by, inter alia, "providing general transportation to the gang's members," "enabling transportation of narcotics for sale by the gang," "enabling transportation to commit further crimes by the gang," and "by raising the gang's reputation in the community." (Id. at p. 656.) He concluded the defendant committed the carjacking for the benefit of the gang because the defendant was a member of Moreno Valley 13; the defendant's "demeanor and appearance" led the victim to believe he was a gang member; car theft was Moreno Valley 13's " 'signature' " crime; and the evidence showed defendant "had immediately driven over to someone else's home and brandished [a] shotgun," possibly "to retaliate" against a rival gang. (Id. at pp. 655-656, fn. omitted.) On cross-examination, the expert conceded "there was no indication" "defendant used the stolen vehicle to transport other gang members" or "defendant had claimed responsibility for his crimes in the name of his gang." (Id. at p. 656.) Ochoa is distinguishable. First, there was no evidence the defendant was accompanied by a fellow gang member or the crimes were committed in gang territory. (Id. at p. 662.) Second, the expert never testified the offense at issue, i.e., carjacking, was a primary activity of the gang. (See id. at pp. 661-662.) Third, "the prosecutor did not pose any hypothetical to the gang expert, but essentially asked him the impermissible question of whether the particular crimes were committed to benefit defendant's gang." (Id. at p. 664, italics added.) Fourth, the expert's opinion was unsubstantiated. Division Two of the Fourth Appellate District, which reversed the gang enhancement finding (id. at p. 665), pointed out:
"Defendant did not call out a gang name, display gang signs, wear gang clothing, or engage in gang graffiti while committing the instant offenses. There was no evidence of bragging or graffiti to take credit for the crimes. There was no testimony that the victim saw any of defendant's tattoos. . . . There was no evidence that the victim of the crimes was a gang member or a Moreno Valley 13 rival. . . .
"While the [expert] testified that the carjacking could benefit defendant's gang in a number of ways, he had no specific evidentiary support for drawing such inferences. Indeed, he admitted that there was no indication that defendant had used the vehicle to transport other gang members. There was no testimony that defendant used the vehicle to transport drugs or manifested any intention to do so. While the [expert] testified that defendant may have been motivated to commit the instant crimes in order to exact retaliation against another individual, he failed to provide any evidentiary support for this conclusion. There was never any suggestion that the alleged victim of the brandishing . . . was a rival gang member or had committed any offenses against defendant or his gang. The [expert]'s testimony, as to how defendant's crimes would benefit Moreno Valley 13, was based solely on speculation, not evidence. . . .
"While it is true that the carjacking victim testified that he believed 'a little' that defendant may have been a gang member, it is difficult to imagine how that would benefit Moreno Valley 13 because the victim did not know to which gang, if any, defendant may have belonged. The gang enhancement cannot be sustained based solely on defendant's status as a
member of the gang and his subsequent commission of crimes. [Citation.]" (Ochoa, supra, 179 Cal.App.4th at pp. 662-663, fns. omitted.)
In Daniel C., the minor and two companions entered a supermarket. (Daniel C., supra, 195 Cal.App.4th at p. 1353.) All three "were . . . wearing clothing with an element of red on it." (Id. at p. 1354.) After his companions left the supermarket, the minor took a bottle of whiskey and headed for the exit. When an employee tried to stop him, the minor "raised the bottle as if to strike [the employee] with it or throw it at him," "broke [the bottle] against a nearby machine," and "hit [the employee] on the ear with the neck of the bottle" before fleeing. (Id. at p. 1353.) At the contested jurisdiction hearing, the gang expert opined the robbery was "gang related" because, inter alia, the minor and his companions were either Norteño members or affiliates; coordinated their activities in the market; and wore red apparel, which is associated with the Norteños. (Id. at pp. 1355-1356.) He also opined the Norteños benefited from "the commission of violent crimes" because "it earns the gang respect, in that members of the community hear about the crime, become afraid of the gang, and are thereby encouraged to permit the members to commit other crimes without confronting them or reporting them to the police." (Id. at p. 1356.) In contrast to Montgomery's opinion in the instant case, the expert's opinion in Daniel C. was undercut by the evidence. Division Four of the First Appellate District, which reversed the gang enhancement finding (ibid.), detailed:
"[T]here is no evidence that [the minor] acted in concert with his companions. [His] companions left the store before he picked up the liquor bottle, and they did not assist him in assaulting [the employee]. Indeed, there is no evidence in the record that [the minor]'s companions even saw what happened in the store after they left. Moreover, there is no evidence that [the employee] was aware that [the minor], or his companions who had been in the store earlier, were gang members or 'affiliates.' [¶] . . . [¶]
"Here, [the expert] based his opinion that [the minor] committed the robbery to further the interests of the Norteño gang on the premise that it was a violent crime, and gangs commit violent crimes in order to gain respect and to intimidate others in their community. But, nothing in the record indicates that [the minor] or his companions did anything while in
the supermarket to identify themselves with any gang, other than wearing clothing with red on it. No gang signs or words were used, and there was no evidence that [the employee] or any [witnesses] knew that gang members or affiliates were involved. Therefore, the crime could not have enhanced respect for the gang members or intimidated others in their community . . . .
"Also, there is no evidence that [the minor] or his companions entered the store with the intention of committing a violent crime. Had [the employee] not intervened, it appears from the record that [the minor] simply planned to walk through the unattended cash register with the bottle, without paying for it, and to leave the store. . . . [¶] Thus, the underlying premise of [the expert]'s opinion, that the participants planned or executed a violent crime in concert in order to enhance their respect in the community, or to instill fear, was factually incorrect." (Daniel C., supra, 195 Cal.App.4th at pp. 1361, 1363-1364.)
Finally, in Rios, California Highway Patrol (CHP) officers impounded a stolen car driven by the defendant and found an unregistered revolver under the front passenger seat. (Rios, supra, 222 Cal.App.4th at pp. 547-548.) At trial, the gang expert testified the defendant was an active Norteño based on, inter alia, his prior admissions, his tattoo, and the gang-related apparel retrieved from the stolen car. (See id. at pp. 551-553.) In response to the prosecutor's hypothetical questions, he opined the defendant committed the crimes of vehicle theft and carrying a loaded firearm in a vehicle with the intent to promote, further, or assist in criminal conduct by gang members. (See id. at pp. 573-574.) With respect to vehicle theft, the expert stated a stolen vehicle allowed gang members to circumvent "perimeter[s]" set up by law enforcement to catch them as well as to " 'assist other gang crimes' " such as drive-by shootings. (Id. at p. 574.) With respect to unlawful firearm possession, he stated firearms "protect [the gang's] drug sales territory and other gang members," "make[] it easier for gang members to commit crimes," and " 'boosts the fear in the community.' " (Id. at p. 573.) Like Frank S., Ramon, Ochoa, and Daniel C., Rios is inapposite. There was no evidence the defendant in Rios was accompanied by a fellow gang member or the crimes were committed in gang territory. (Rios, supra, at pp. 572, 574.) The prosecutor's hypothetical questions did not mirror all the facts of the case shown by the evidence. Instead, the prosecutor asked the expert to consider only two facts: (1) defendant's gang membership; and (2) defendant's commission of the crimes. (See id. at pp. 573, 574.) Lastly, the expert's opinion lacked evidentiary support. The Sixth Appellate District, which reversed the gang enhancement finding (id. at p. 576), noted:
"[T]he prosecution could have presented evidence that another gang member had directed defendant to steal a car to use in a robbery, or that defendant was transporting the loaded gun from one gang member to another to use in a robbery or drive[-]by shooting. There was no such evidence. . . . [D]efendant never admitted that he stole the car or transported the gun to promote, further, or assist in any criminal conduct by gang members.
". . . [T]here was no evidence that the gun defendant transported was brandished or shown to anyone or used to intimidate persons in the community. . . . [I]t was hidden under the front passenger seat and was not visible from outside the car. . . . [T]here was no evidence that any victim in this case or anyone in the local community knew defendant was a gang member, was affiliated with a gang, or was acting with a gang purpose. [¶] . . . [¶]
". . . [T]here was no evidence that [defendant] had used the [stolen car] to pick up one or more fleeing gang members, that he intended to use the car to commit another gang crime separate and apart from the vehicle theft, or that there were any drive[-]by shootings or attempted drive[-]by shootings that night . . . .
". . . [T]here was no evidence that defendant . . . called out a gang name, displayed gang signs or otherwise stated his gang affiliation; or that the victims of the car theft were rival gang members or saw his tattoos or gang clothing." (Rios, supra, 222 Cal.App.4th at pp. 572-574.)
At oral argument, defendant cited for the first time People v. Perez (2017) 18 Cal.App.5th 598 (Perez), in which the Third Appellate District reversed a gang enhancement finding. He did not provide notice of this new authority as required by California Rules of Court, rule 8.254(a). Regardless, the case is inapposite.
In Perez, the defendant, a "validated and heavily tattooed [Norteño] gang member" (Perez, supra, 18 Cal.App.5th at p. 601), shot four students at a college party (id. at pp. 602603). There was no evidence, however, that he was accompanied by a fellow gang member or the shooting took place in gang territory. (Id. at pp. 601, 609.) In response to the prosecutor's hypothetical question (id. at p. 609), the gang expert in Perez opined the shooting benefited the Norteños because " '[the shooting]'s going to instill fear in anybody who knows about that shooting occurring' " and " '[t]hat fear is going to be now attributed to the reputation of the Norteños' " (id. at p. 610). The evidence, though, undermined his opinion: the defendant did not wear gang clothing, did not yell gang epithets, and did not throw gang signs; the defendant's tattoos were not visible; and the partygoers did not know about the defendant's gang affiliation. (Id. at pp. 609, 613614.)
Substantial evidence supported the jury's section 186.22, subdivision (b)(1) findings on counts 1 and 2.
III. The Attorney General concedes the evidence did not support defendant's conviction for gang participation on count 3.
" 'Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished . . . .' [Citations.] 'The elements of the gang participation offense in section 186.22[, subdivision ](a) are: First, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang.' [Citation.]" (People v. Johnson (2014) 229 Cal.App.4th 910, 920, fns. omitted.)
" '[T]o satisfy the third element, a defendant must willfully advance, encourage, contribute to, or help members of his gang commit felonious criminal conduct.' [Citations.] Section 186.22, subdivision (a), 'requires that felonious criminal conduct be committed by at least two gang members, one of whom can include the defendant if he is a gang member.' [Citation.] One may promote, further, or assist in the felonious conduct by at least two gang members by either (1) directly perpetrating the felony with gang members or (2) aiding and abetting gang members in the commission of the felony. [Citation.] Section 186.22, subdivision (a), 'reflects the Legislature's carefully structured endeavor to punish active participants for commission of criminal acts done collectively with gang members.' [Citation.]" (People v. Johnson, supra, 229 Cal.App.4th at pp. 920-921, fn. omitted.)
On appeal, the Attorney General concedes "there was insufficient evidence to support [defendant]'s conviction for gang participation within the meaning of section 186.22, subdivision (a), because there was no evidence he committed the underlying offenses with one or more gang members." We accept this concession.
DISPOSITION
The judgment of conviction on count 3 is reversed and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
/s/_________
DETJEN, Acting P.J. WE CONCUR: /s/_________
PEÑA, J. /s/_________
SMITH, J.