Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA324835, Gregory A. Dohi, Judge.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant Jose Rosales Cruz.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant Vicente Perez.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Jaime F. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Vicente Perez was convicted, following a jury trial, of two counts of second degree robbery in violation of Penal Code section 211. Appellant Jose Rosales Cruz was convicted, following a jury trial, of two counts of robbery in violation of section 211, and one count of resisting arrest in violation of section 148, subdivision (a)(1). The jury found true the allegations that in the commission of the robberies a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1), a principal personally used a firearm within the meaning of section 12022.53, subdivisions (b) and (e)(1) and Cruz personally used a firearm within the meaning of section 12022.53, subdivisions (b) and (e)(1). The jury also found true the allegation that the robberies were committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C) and the offense of resisting arrest committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (d). The trial court sentenced appellant Cruz to a total term of 23 years, 8 months in state prison. The court sentenced appellant Perez to a total term of 14 years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellants appeal from the judgment of conviction, contending that there is insufficient evidence to support the gang enhancements and that the expert gang testimony violated their right to due process. Appellant Perez claims that the trial court erred in imposing certain firearm and gang enhancements and awarding attorney's fees. Appellant Cruz contends that he is entitled to an additional two days of custody credit. We reverse the true finding on the gang enhancement to appellant Cruz's conviction for resisting arrest and remand the matter for resentencing on the resisting arrest conviction. The firearm and gang enhancement imposed on appellant Perez are ordered corrected and the attorney fees reference modified, as set forth in more detail in our disposition. We affirm the judgment of conviction in all other respects.
Facts
On March 3, 2007, about 7:00 or 8:00 p.m., Francisco Orquideo was waiting for his wife, Lisette Carranza, outside a restaurant on Melrose Avenue near Wilton. The couple had just finished dinner. Appellants approached Orquideo. Appellant Cruz said to appellant Perez: "Give me the shit." Perez removed a handgun from underneath his shirt and gave it to Cruz. Cruz grabbed Orquideo by the shirt, pointed the gun at him and demanded money. Orquideo said that he did not have any money. Cruz threatened to shoot Orquideo.
Orquideo saw that Carranza was coming out of the restaurant. He motioned for her not to come out. Cruz said that he wanted Carranza's purse. Carranza told Claudia Lopez, the restaurant owner's daughter, to call 911. She then opened her purse, and took out a $20 bill. The restaurant's owner, Jacinta Santiago, took the money, opened the door a little and gave the money to Orquideo.
Orquideo gave the $20 bill to Cruz. Cruz demanded more money and again threatened to shoot Orquideo. Other people started to notice the robbery. Orquideo pushed Cruz. Appellants walked away.
Orquideo followed appellants to Ridgewood Place where he lost sight of them. Police arrived and Orquideo flagged them down. He got into the patrol car, which drove north on Ridgewood. Orquideo saw appellants walking north on Ridgewood and told police officers that they were the robbers. The officers stopped the patrol car and got out to detain appellants. The officers drew their weapons, identified themselves and told appellants to stop. Cruz stopped. Perez did not.
Officer Richard Koval followed Perez as he walked away and repeatedly told him to stop. Eventually, Perez stopped and laid down in a driveway. He was handcuffed.
Officer Manuel Arzate stayed with Cruz. He ordered Cruz to put his hands up. Cruz scowled at Officer Arzate and said, "No." Officer Howell approached and Cruz then complied with Officer Arzate's commands. Cruz had a handgun in his waistband and a $20 dollar bill in his front pants pocket. There were no other pedestrians in the vicinity during this encounter.
Orquideo identified appellants in a field show-up. He also identified the gun recovered from Cruz.
At trial, Los Angeles Police Officer Gerardo Morales testified for the People as a gang expert on the Mara Salvatrucha 13 gang ("MS13"). He explained that MS13 had evolved from a youth group into a criminal street gang with ties to the Mexican Mafia. The vast majority of MS13's members are from El Salvador. MS13 claims a large territory in Hollywood, including the location where the robbery in this case occurred. The primary activities of MS13 were robberies, homicides, burglaries, assaults, drive-by shootings and vandalism. MS13 discouraged the commission of crimes by non-members in its claimed territory.
In Officer Morales's opinion, both Cruz and Perez were members of MS13. The officer knew Perez. He based his opinion on Perez's admission of gang membership to another police officer, his gang nickname of "Goofy," the gang tattoos on his body, and the facts that Perez lived in MS13 territory and committed the charged offense there. Officer Morales based his opinion that Cruz was a member on Cruz's gang tattoos, his association with Perez and his commission of the charged crimes in MS13 territory. Based on the details of the crime, Officer Morales believed that Cruz had higher status in the gang than Perez.
Officer Morales opined that the offenses were committed for the benefit of MS13, in essence because all violent crimes in a gang's territory benefit the gang, even when the criminals do not identify themselves as gang members. In Officer Morales's experience, due to gang injunctions and other penal consequences, there was a trend for gang members not to announce their gang name when committing offenses.
Ana Cruz, appellant Cruz's sister, testified on his behalf that he had the MS13 tattoos before he came to the United States from El Salvador in 1998. According to her, appellant Cruz seldom went out at night.
Discussion
1. Sufficiency of the evidence – gang allegation
Appellant Cruz contends that there is no factual basis for the gang expert's opinion that the robbery would benefit MS13 and no evidence that either appellant knew the other was a gang member, so that there is insufficient evidence to support the true finding on the gang allegation. Appellant Perez joins that contention. Cruz further contends that there is no factual basis for the gang expert's opinion that resisting arrest would benefit MS13, particularly since that crime was committed by Cruz alone. Appellants contend that such a finding violates their federal constitutional right to due process of law.
The gang expert's testimony was flawed, but there is sufficient evidence to support the true finding for the gang allegation on the robbery convictions. There is not sufficient evidence to support the gang allegation for resisting arrest, and that finding must be reversed. There was no violation of appellants' right to due process.
In reviewing the sufficiency of the evidence, "courts apply the substantial evidence test. Under this standard, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, internal quotation marks and citations omitted.)
"The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." (People v. Stanley (1995) 10 Cal.4th 764, 792-793, internal quotation marks and citations omitted.)
"Where an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value. [Citations.] In those circumstances the expert's opinion cannot rise to the dignity of substantial evidence. [Citation.]" (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135-1136.)
Section 186.22, subdivision (b)(1) provides for enhanced punishment for a defendant who commits a felony "for the benefit of, at the direction of, or in association with any criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members."
Here, appellants did nothing to indicate any gang affiliation during the robberies. Officer Morales nevertheless believed that the robberies would benefit MS13. He opined, in essence, that any violent crime creates fear and intimidation in a neighborhood. Appellants committed their crimes in a neighborhood claimed by MS13. According to the officer, residents know when they live in a gang neighborhood and believe that most crimes committed in the neighborhood are carried out by gang members and any criminal who approaches them could be a gang member whether he says so or not. Thus, residents are afraid of and intimidated by all criminals, including gang members. This fear and intimidation benefit gang members because it makes it easier for them to commit crimes and not get caught. Officer Morales based his opinion on interviews of crime victims and witnesses.
Officer Morales was no doubt accurately recounting the views of the victims and witnesses that he had interviewed. That is not enough of a basis to support an opinion that all or even most crime victims and witnesses in a gang neighborhood have the views described by Morales, let alone that all or even most residents of gang neighborhoods have the views described by Morales. The neighborhood claimed by MS13 is very large. Some solid statistical methodology would be required to show that the views of an individual officer's sampling of crime victims reflect those of all or most of the residents of an area. There is nothing to suggest that such methodology was present here. Officer Morales's conclusions are further called into question by the fact that the victims and witnesses in this case did not give any indication that they believed that appellants were gang members.
There is nevertheless sufficient evidence to support the gang enhancement to the robbery convictions. Section 186.22, subdivision (b)(1) applies to a defendant who commits a felony "for the benefit of, at the direction of, or in association with any criminal street gang." (Emphasis added.) Here, there is evidence that both appellants are members of MS13. They committed the armed robbery together. This is sufficient to satisfy the association element of section 186.22. (People v. Morales (2003) 112 Cal.App.4th 1176, 1197-1198 ["the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members"].)
Appellants contend that there is no evidence that they knew each other, or knew that the other was a gang member. It is more than reasonable to infer each appellant knew the other was a gang member. The two men worked together as a team to commit the robberies. Perez carried the gun and handed it over to Cruz on request. This shows at least some rudimentary planning together by the men and some level of trust between them. The robbery occurred in MS13 territory. Officer Morales testified that it is MS13's practice to discourage crimes in its territory by individuals who are not members of MS13. Each appellant would have a strong interest in learning whether the other was a gang member before committing a crime with him in gang territory. The opposite inference, that appellants did not know each other or know of the other's gang membership, but decided to commit a violent crime in their gang's territory with a stranger met in a bar, is not reasonable.
Appellants also contend that there is no evidence that they committed the robberies "with the specific intent to promote, further or assist in any criminal conduct by gang members," as required by section 186.22. There is sufficient evidence.
The implication of appellant's argument is that section 186.22 requires an intent to promote the gang's criminal activity beyond the charged crime. This is the holding of Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, which our colleagues in Division Four of this District Court of Appeal have declined to follow. (People v. Romero, supra, 140 Cal.App.4th at p. 19.) We agree with the reasoning of Romero.
There is evidence that Perez intended to commit a crime and intended to help Cruz commit a crime. There is evidence that Cruz intended to commit a crime and intended to help Perez commit a crime. As we discuss, supra, it is reasonable to infer that each appellant knew the other was a member of MS13. That is sufficient evidence to support a finding that each appellant intended to "promote, further or assist" criminal conduct by a gang member. (People v. Romero (2006) 140 Cal.App.4th 15, 20 [evidence that appellant intended to commit a crime, intended to help fellow gang member Moreno commit a crime and knew that Moreno was a member of appellant's gang creates a reasonable inference that appellant possessed the specific intent to "promote, further or assist" criminal conduct by a gang member within the meaning of section 186.22, subd. (b)(1)].) Further, the prosecutor asked Officer Morales whether he believed that appellant had committed the robberies in association with a criminal gang. Officer Morales replied that he did so believe because "You have two gang members that are together, obviously, they're in a gang area."
We agree with appellant Cruz that there is insufficient evidence to support the gang allegation to the resisting arrest charge. Officer Morales testified that resisting arrest benefited MS13 because "if a person is a member of the Mara Salvatrucha, he's refusing, that gives the gang status. People will look and say, wow, this guy is Mara Salvatrucha, that gang is a tough gang, they're – they're not willing to back down. [¶] And that's how – how they want to be looked at, they want to be looked at as fearless and that's how the entire gang is looked at whenever they're caught. They're caught committing a crime, yet they're still willing to fight and willing not to comply." The prosecutor asked Officer Morales if it would change his opinion if no one witnessed the act of resisting arrest. Officer Morales replied: "No. When – when this person goes into – whether he's released or he goes to jail, this is the story that he's going to tell and this story that he tells everybody else." Officer Morales continued: "This is the way a gang member gains status through violence and by putting in work. This is a crime of violence and his resistance or his – him not listening to authority, that is a story that he most likely will – will tell 'cause that is how he gains status within this gang, and that's how the gang gains that."
Officer Morales was simply speculating as to the behavior of Cruz. If Cruz chose to remain silent, no one would know, and there would be no benefit to MS13. There is no evidence that Cruz actually told anyone about his act of resisting arrest. Since it is based on speculation and conjecture, Officer Morales's opinion is not substantial evidence that Cruz's act of resisting arrest benefited MS13. (See Pacific Gas & Electric Co. v. Zuckerman, supra, 189 Cal.App.3d at pp. 1135-1136.) There is no evidence that Perez assisted Cruz in resisting arrest. Thus, there is no evidence to support the true finding on the gang enhancement to the resisting arrest conviction, and it must be reversed.
Cruz's conviction for resisting arrest becomes a misdemeanor upon the striking of the gang allegation. Thus, this matter must be remanded for resentencing. Cruz's contention that he is entitled to two additional days of presentence credit may be addressed on remand.
Since a rational trier of fact could have found the essential elements of the gang enhancements to the robbery convictions proven beyond a reasonable doubt and since we have reversed the gang enhancement to the resisting arrest conviction, the due process clauses of the California and United States Constitutions are satisfied. (People v. Osband (1996) 13 Cal.4th 622, 690.)
2. Admission of gang evidence
Appellant Cruz claims that the trial court erred in admitting evidence on the following five topics: (1) the origins and growth of MS13 and its links to the Mexican Mafia; (2) Cruz's senior status in MS13; (3) gang injunctions; (4) the "cloud of fear" in territory claimed by MS13; and (5) the benefit to MS13 of Cruz's resisting arrest. He contends that the erroneous admission of this evidence violated his federal constitutional right to due process. Appellant Perez joins in this contention.
Respondent contends that appellants have forfeited these claims by failing to object in the trial court. We agree in part.
Appellants did not object on any ground to the description of the evolution of MS13 or its links to the Mexican Mafia. They have forfeited all claims of error related to this testimony. Appellants did not make any substantive objections to Officer Morales's testimony about status within a gang generally or Cruz's status relative to Perez. They have forfeited all claims of error related to this testimony.
Appellants did initially object that the prosecutor's questions about gang status were vague and improper and Officer Morales's answers were nonresponsive, but these objections were properly overruled and in any event could not preserve a due process violation claim. Appellants then objected that a hypothetical about status misstated the testimony, and that objection was sustained.
Appellants did object to the gang injunction testimony on the grounds that it lacked relevance and foundation. They objected to the "cloud of fear" testimony on lack of foundation, improper opinion and Evidence Code section 352 grounds. They also objected to the resisting arrest testimony on speculation grounds. They did not object on due process grounds.
We do not agree with respondent that appellants have forfeited their due process claim by failing to object on that specific ground in the trial court. As the California Supreme Court has explained, a defendant may not argue on appeal that "constitutional provisions required the trial court to exclude the evidence for a reason not included in the actual trial objection." (People v. Partida (2005) 37 Cal.4th 428, 437-438.) A defendant may argue that the trial court erred in overruling his trial objection and "that this error had the legal consequence of violating his due process rights." (Id. at p. 439.) In Partida, the trial objection was that the evidence was more prejudicial than probative under Evidence Code section 352. (Ibid.) We understand appellants as arguing the trial court erred in overruling their objections in the trial court, and that these errors have the legal consequence of violating his due process rights.
Respondent's reliance on a footnote in People v. Lewis (2006) 39 Cal.4th 970 to show forfeiture is misplaced. The Court in Lewis cites People v. Partida, supra, 37 Cal.4th 428 to show forfeiture. (People v. Lewis, supra, 39 Cal.4th at p. 1028, fn. 19.) The Court did not modify or overrule the holding of Partida. (Ibid.)
There was no error in the admission of the evidence about the gang injunction, and so no violation of appellant's due process rights. On cross-examination, Perez's counsel questioned Officer Morales about the ways gang members identify themselves, such as making gang signs, stating their gang's name and their own nickname in the gang, or issuing a gang challenge. Counsel also asked if identifying themselves would be an easy way for gang members to instill fear and intimidation in the community, and Officer Morales agreed that it would. On redirect, the prosecutor elicited the complained-of testimony about the gang injunction. Officer Morales simply testified that after a gang injunction was issued in Hollywood, he noticed that gang members were refusing to identify themselves. Thus, this testimony was essentially an explanation that gang behavior in general has been changing. While it is true that Cruz had not been served with the gang injunction, that means only that he could not be prosecuted for violating its terms. Even assuming that lack of service meant that Cruz was not aware of the terms of the injunction, it would still be reasonable to assume that he would be aware of such a major shift in the behavior of his fellow gang members, and would act in accordance with such a shift.
As we discuss in section 1, supra, the "cloud of fear" testimony and the resisting arrest testimony were speculation. It should not have been admitted.
The erroneous admission of evidence violates due process only if there are no permissible inferences the jury may draw from that challenged evidence, the evidence is of such quality as necessarily prevents a fair trial, and it can be inferred that the jury must have used the evidence for an improper purpose. (People v. Williams (2009) 170 Cal.App.4th 587, 612; People v. Garcia (2008) 168 Cal.App.4th 261, 275.)
The "cloud of fear" evidence and intertwined evidence about resisting arrest is not of such a quality as to necessarily prevent a fair trial. Officer Morales had properly described the criminal nature of the gang and its practice of committing violent crimes. He also acknowledged that not all crimes in a gang neighborhood are committed by gang members. The additional testimony that people in a gang neighborhood believe (incorrectly) that all violent crimes in the neighborhood are committed by gangs does not make MS13 or appellants look any worse than their own actions do. The testimony was relatively brief, taking about seven pages of Officer Morales's approximately two hundred pages of testimony. It did not describe any violent acts.
Appellants point to the behavior of Juror No. 5 to show that the gang evidence was so emotionally charged that it must have rendered the trial fundamentally unfair. The morning following the first day of Officer Morales's testimony, the trial court learned that Juror No. 5. had a concern about safety. The juror told the court that when she was walking to her car after the court recessed the previous day, she saw a black man who looked like a gang member. He kept looking at her. The man's hands were in his pockets, and the juror saw something silver. The juror explained that she lived in South Central and knew what gang members looked like and how they walked, and believed that they usually had guns. The incident scared her. Juror No. 5 was excused.
We do not believe that Juror No. 5's fears show that Officer Morales's testimony was prejudicial. Juror No. 5's fears did not correspond to the specifics of Officer Morales's testimony. The officer did not testify that gang members usually carry guns, for example. There is nothing to suggest that any other jurors noticed this man or were alarmed by his presence. Thus, it is most reasonable to infer that Juror No. 5's fears arose from her own life experiences.
3. Enhancements
Appellant Perez contends that the trial court erred in staying the ten-year section 12022.53 enhancement and instead imposing a ten-year section 186.22, subdivision (b)(1) enhancement plus a one-year section 12022 enhancement. We agree.
The trial court could not impose both the section 12022.53 and the section 186.22 enhancements because appellant Perez did not personally use the firearm. (§ 12022.53, subd. (e)(2).) Similarly, the trial court could not impose both the section 12022.53 enhancement and the section 12022 enhancement. (§ 12022.53, subd. (f).)
We agree with our colleagues in Division Four of this District Court of Appeal that in such circumstances, the section 12022.53 enhancement alone should be imposed. (People v. Sinclair (2008) 166 Cal.App.4th 848, 853-854.) As the Court explained, subdivision (j) of section 12022.53 requires a court to impose the section 12022.53 enhancement unless "another enhancement" provides for a greater penalty or a longer term of imprisonment. The phrase "another enhancement" is singular and so does not include combinations of enhancements. (Ibid.)
Respondent asks us to reexamine the Court's statutory construction in Sinclair. We decline this invitation.
4. Attorney fees determination
Appellant Perez contends that the trial court erred in ordering him "to pay attorney fees in the amount to be determined by the financial evaluator." We find that court's order ambiguous, and order it clarified.
We do not agree with respondent that appellant's claim has been forfeited by failing to object to this order in the trial court. Such an order would appear to be without evidentiary support, and so cognizable on appeal. (See People v. Lopez (2005) 129 Cal.App.4th 1508, 1536-1537.)
Section 987.8, subdivision (b) provides that: "In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court, or upon the withdrawal of the public defender or appointed private counsel, the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings. The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided."
Proper notice is required when the defendant is ordered to appear before a county officer. (§ 987.8, subd. (d).) The contents of the notice are detailed in subdivision (d).
Appellant is correct that the trial court's order at the October 14, 2008, sentencing hearing that appellant was ordered to pay "attorney's fees in an amount to be determined by the financial evaluator" does not constitute proper notice. It is possible to understand this statement as an order to pay attorney fees, albeit a conditional one. Such an order would be erroneous. (See People v. Lopez, supra, 129 Cal.App.4th at pp. 1536-1537 [court's order that defendant pay attorney fees "not to exceed $1,000" suggested that some other determination was to take place before an amount was finally determined; since no evidence in the record that such a determination ever took place, trial court was directed to reconsider the order while case was on remand due to reversal of convictions].)
The trial court could not order appellant to pay attorney fees without notice and a hearing. Appellant was remanded to custody forthwith for delivery to the Department of Corrections and Rehabilitation. It seems questionable that a hearing ever took place. Accordingly, the abstract of judgment is ordered corrected to read: "Defendant has been ordered to appear before a financial evaluator for an inquiry into his ability to pay attorney fees."
If a hearing has taken place, and if appellant was ordered to pay attorney fees, that order is ordinarily enforceable as a civil judgment. If there is some reason to add the order to the abstract of judgment for enforcement purposes, the financial evaluator can seek to amend the abstract in the trial court. We do not consider appellant's speculative claims that an order by a financial evaluator may have been issued without proper notice and hearing. There is no such order before us. Any improprieties in such an order must be addressed separately from this appeal.
Disposition
The true finding on the section 186.22, subdivision (d) gang enhancement allegation to the count 3 arrest conviction is reversed. The judgment of conviction as to appellant Cruz is affirmed in all other respects. The matter is remanded to the trial court for resentencing on the count 3 conviction, which becomes a misdemeanor upon the striking of the gang enhancement.
The ten year enhancement term imposed on appellant Perez pursuant to section 186.22, subdivision (b)(1) and the one year term imposed pursuant to section 12022 are ordered stayed. The ten year term imposed but stayed pursuant to section 12022.53 is no longer stayed. Appellant Perez's sentence now totals 13 years. The following sentence is ordered stricken from appellant Perez's abstract of judgment: "Defendant is ordered to pay attorney fees in the amount to be determined by the financial evaluator." The following sentence is ordered inserted into that abstract of judgment: "Defendant has been ordered to appear before a financial evaluator for an inquiry into his ability to pay attorney fees." The judgment of conviction is affirmed in all other respects. The clerk of the superior court is instructed to prepare an amended abstract of judgment for appellant Perez and to deliver it to the Department of Corrections and Rehabilitation.
I concur: KRIEGLER, J.,
MOSK, J., Concurring and Dissenting
I do not believe the evidence is sufficient to support the gang enhancement. Recent cases have expressed a more restrictive view of the nature of the evidence necessary to support a gang enhancement. (See, e.g., People v. Ochoa (2009) ___ Cal.App.4th __, 2009 WL 3931696; People v. Ramon (2009) 175 Cal.App.4th 843; In re Frank S. (2006) 141 Cal.App.4th 1192; see Briceno v. A.K. Scribner (9th Cir. 2009) 555 F.3d 1069, 1081, fn. 4 [“we doubt that Morales (People v. Morales (2003) 112 Cal.App.4th 1176) is an accurate statement of California law.”])
Here, aside for the conclusory (and in the words of the majority, “flawed”) testimony of the gang expert, there is little, if anything, to tie the crimes to gang involvement.
Clarification of the elements of proof necessary for a gang enhancement would be desirable.
I dissent only as to the gang enhancement.