Opinion
F070695
02-22-2017
THE PEOPLE, Plaintiff and Respondent, v. ADOLFO MONTANO, Defendant and Appellant.
Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Charity S. Whitney, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF156029A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
After robbing three college students at gunpoint, defendant Adolfo Montano was arrested and charged by amended information with three counts of robbery (Pen. Code, § 212.5, subd. (c)) (counts 1 through 3), one count of being a felon in possession of a firearm (§ 29800, subd. (a)(1)) (count 4) and one count of unlawfully participating in a criminal street gang (§ 186.22, subd. (a)) (count 5). The amended information further alleged the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); as to counts 1 through 3, defendant personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); and defendant suffered a prior serious felony conviction (§ 667, subd. (a)) and served two prior prison terms (§ 667.5, subd. (b)).
Further statutory references are to the Penal Code unless otherwise noted.
On the first day of trial, the prosecutor dismissed count 5, unlawful participation in a criminal street gang. The jury subsequently convicted defendant of counts 1 through 4 and found the gang and firearm enhancements true. In a bifurcated proceeding, the trial court found the prior serious felony conviction and prior prison term allegations true.
Defendant was sentenced to a total determinate prison term of 70 years. On count 1, he was sentenced to 10 years (upper term, doubled for the strike (§ 667, subd. (e)(1)), plus an additional 10 years for the gang enhancement (§ 186.22, subd. (b)(1)), an additional 20 years for the firearm enhancement (§ 12022.53, subd. (c)), an additional five years for the prior serious felony conviction (§ 667, subd. (a)) and an additional one year for the prior prison term (§ 667.5, subd. (b)). On counts 2 and 3, he was sentenced on each count to a consecutive term of two years (one-third of midterm, doubled), plus three years four months for the gang enhancement and six years eight months for the firearm enhancement. On count 4, he was sentenced to six years, plus 10 years for the gang enhancement and 10 years for the firearm enhancement, stayed pursuant to section 654.
On appeal, defendant challenges the gang enhancement finding (§ 186.22, subd. (b)(1)) as unsupported by substantial evidence. He also argues that the admission of his gang related booking statements violated his rights under the Fifth and Fourteenth Amendments. (Miranda v. Arizona (1966) 384 U.S. 436, 479 (Miranda); People v. Elizalde (2015) 61 Cal.4th 523, 541 (Elizalde).)
The People dispute defendant's sufficiency of the evidence claim but concede the admission of the jail booking statements was error under Elizalde. They contend the error was harmless, however.
We reverse the gang enhancement finding as not supported by sufficient evidence. Additionally, we find the admission of defendant's booking statements was erroneous under Elizalde, but we do not reach the issue of whether the error was harmless given our reversal of the gang enhancement on sufficiency of the evidence grounds.
FACTUAL SUMMARY
Defendant is not challenging the sufficiency of the evidence supporting his convictions for robbery and being a felon in possession of a firearm and, therefore, we only briefly summarize the facts underlying his convictions, construing them "'in the light most favorable to the judgment.'" (People v. Curl (2009) 46 Cal.4th 339, 342, fn. 3.) The prosecution's evidence supporting the gang enhancement is discussed post.
At around 11:00 p.m. on July 11, 2014, college students Luis Elias, Michael Davalos and Jose Benitez went to a house party in Bakersfield that Benitez had learned of via social media. They were unfamiliar with the area, did not know whose house it was and did not know any of the other guests, but had gone hoping to meet girls. There was drinking and drug use occurring at the party, but they did not participate. They left around 1:00 or 1:15 a.m.
As the three walked toward Benitez's car, defendant, who was across the street from them, asked where they were going. He was wearing a big, white T-shirt, blue jeans and a hat, and he had visible tattoos of a pair of red lips and an outline of the state of California on his neck. Elias, Davalos and Benitez had seen defendant at the house party but they did not interact with him there and did not know him. As they answered, defendant, along with two other Hispanic men, began crossing the street toward them. Mid-street, defendant pulled out a revolver, said, "give me all your sh_t," and demanded their wallets and phones. Defendant jabbed the barrel of the gun into Benitez's chest or stomach, and one or both men with defendant assisted with the theft of Benitez's watch, wallet and phone. Davalos also handed over his wallet and phone to defendant. Elias was robbed last. Elias was in shock and took his time getting his wallet and phone out. Defendant jabbed his throat with the gun barrel, told him to hurry up and warned him that if he tried anything, defendant would pistol-whip him.
Benitez testified one of the two men directed defendant's attention to his watch and defendant took it while Elias testified one of the two men with defendant took Benitez's watch and his other stuff. Davalos testified both men took Benitez's stuff.
There was some inconsistency in the victims' testimony regarding the order the three were robbed, but the order is not material.
After they handed over their belongings, defendant backed away, laughing, and said "pray to God that [he] let [them] live" or "pray to God you live another day." Defendant shot the gun twice at an angle over their heads as they ducked behind a car for protection. After defendant turned the street corner, they waited a bit before running to their car and driving home.
Elias called the police once he was home and after the police arrived, they went over to Benitez's house. Davalos, who had also called the police, arrived thereafter and the police took the victims' statements. A photo lineup had been compiled based on the victims' description of the perpetrator and while at Benitez's house, all three identified defendant from the lineup.
Officers subsequently searched defendant's house. Defendant was apprehended as he was exiting his house through the rear. A .38-caliber revolver was found under a bed, and officers located most of the stolen items in defendant's house, including phones, wallets, credit cards and cash. Some of the items had been thrown in the trash and the toilet. Not recovered were Davalos's driver's license, phone and key, and some of the victims' cash.
Elias, Davalos and Benitez testified at trial they were in fear during the robberies, and they all perceived defendant to be gang-affiliated based on his clothing, tattoos and generally threatening demeanor. In his testimony, Davalos referred to defendant's lips tattoo as "gangster lips," based on people he had encountered and movies he had seen.
DISCUSSION
I. Sufficiency of the Evidence Supporting Gang Enhancement
A. Standard of Review
"In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)
B. Gang Expert's Testimony
1. Defendant's Gang Membership
Officer Escobedo, a gang investigator with the Bakersfield Police Department's special enforcement unit, testified for the prosecution as a gang expert. Escobedo testified that defendant is a member of the Colonia Bakers, a gang in Bakersfield that is a subset of the Sureño gang, which is in turn a subset of the Mexican Mafia prison gang. Within the Colonia Bakers, members further identify with various streets and defendant identified with Center Street, as he lived within the boundaries of that area.
Escobedo explained that no one factor is definitive in determining gang membership and he considers multiple factors, including admissions, associations held, patterns of criminal activity, and information provided by associates, police reports, street checks (field identification cards), booking records, databases and other law enforcement officers. Escobedo's opinion that defendant is a member of the Colonia Bakers was based on his consideration of defendant's tattoos and law enforcement records, including admissions made during jail booking and contained in a police report authored by Officer Littlefield.
Escobedo testified the robberies occurred in rival Varrio Bakers territory.
a. Tattoos
Defendant had a number of tattoos. A few—a Raiders tattoo, his mother's name, his sister's name and his last name—were not gang related. However, he had a pair of red lips on his neck with his girlfriend's name underneath. Escobedo testified the lips tattoo is popular in Hispanic gang culture and is an updated version of the teardrops tattoo, signifying the person has been to prison. Defendant also had a dollar symbol on his cheek, which is consistent with Hispanic gangs and represents "South" or "Sureño." Tattoos consistent with the Colonia Bakers, specifically, included a large "Center" tattoo across defendant's upper back, a "C" on his left calf, a "B" on his right calf, and a Chicago Bears or Cincinnati Reds tattoo signifying "CB." Other Hispanic gang-related tattoos included an outline of California with "BKS" inside, "KC" for Kern County, "Southern," "Califas," "661" and another dollar sign.
The area code for Bakersfield is 661.
Between May 12, 2014, and his arrest on July 12, 2014, defendant acquired the lips tattoo and the "BKS" inside the California outline was filled in. He acquired the dollar sign tattoo on his cheek sometime after his arrest on July 12, 2014. Acquisition of the new tattoos and greater detail on the existing tattoo were "consistent" with continued, ongoing gang activity according to Escobedo.
b. Admissions
A second factor relied on by Escobedo consisted of admissions made by defendant. On June 21, 2013, defendant was interviewed by Officer Littlefield during the course of an investigation and he admitted he was jumped into the Colonia Bakers gang when he was 16 years old. Defendant also claimed both Colonia Bakers and "South" gang membership or affiliation during jail admission processes.
2. Gang's Primary Activities
Escobedo testified that primary activities of the Colonia Bakers consist of revenue generation and weapon obtainment. To that end, gang members engage in robberies, auto thefts, homicides and narcotics sales. Escobedo also testified that committing crimes, particularly brazen crimes, benefits the gang by instilling fear in the community at large and commanding the respect of other gangs. It also shows individual members' willingness to "put in work" for the gang.
3. Hypothetical
In response to the People's hypothetical crime based on facts mirroring those underlying the robberies here, Escobedo testified:
"[The crime] benefits the gang in the sense that you have loss, being the credit cards, other valuables, currency, that could all be, in a sense, liquidated or exchanged for narcotics, firearms, or using the credit cards themselves to make purchases, basically bring back funds into the gang.
"It also benefits the gang because it's showing that you have, what I will call, worker bees willing to work for your gang.
"And by such a brazen act that had occurred, what I would call very brazen because of the shots that were fired and the manner that the robbery was carried out, these weren't guys that were coming in to leave or not. These were gentlemen that were making it known that a robbery has
occurred and they're almost making it very, what I would call, cocky, and in that sense you have guys that are showing that they're willing to be worker bees and benefit the Colonia for future criminal activity."
Escobedo also testified that the brazenness of the crime benefitted the gang by instilling fear in the community. Further, the fact that defendant, a Colonia Baker, kept the proceeds from the robbery "[spoke] volumes" to him.
In connecting the robberies to the elements of the gang enhancement, Escobedo testified that the crime was committed at the direction of the Colonia Bakers because defendant, as a member, was directing the crime. Additionally, he testified that the crimes were associated with the Colonia Bakers because robbery is one of the crimes committed by the Colonia Bakers, defendant as a member committed the crimes and defendant as a member was directing an accomplice.
4. Text Messages
Escobedo also considered, as evidence relating the crimes to gang activity, three specific text messages recovered from defendant's phone. The first message, sent to "Atomic" on July 6, 2014, stated, "Hey, where you at? I need an eight ball." The second message was received from "Atomic" on July 11, 2014, and asked, "Did he still want that?" The third message, sent to "Atomic" at 2:30 a.m. on July 12, 2014, stated, "HMU as soon as you wake up. I got some credit cards."
HMU is an abbreviation for "hit me up," which is slang for "give me a call."
Escobedo considered the texts to be gang related because an eight ball is 3.5 grams of a drug, which is consistent with low level narcotics sales and is "significant" because it refers to purchasing, borrowing or obtaining a narcotic. He testified the second text was "even more consistent to gangs" in terms of purchasing or bartering in narcotics, and the third text was "very consistent with gang activity" because it showed that only an hour after the robberies, defendant was trying to liquidate the credit cards by selling or trading them for narcotics. Escobedo opined the three texts were related to one another and were consistent with the Colonia Bakers criminal narcotics activity.
C. Analysis
1. Background
"Section 186.22 is part of 'the California Street Terrorism Enforcement and Prevention Act (the STEP Act) (§ 186.20 et seq.), involving the activity of criminal street gangs.' [Citation.] 'Underlying the STEP Act was the Legislature's recognition that "California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods." [Citation.] The act's express purpose was "to seek the eradication of criminal activity by street gangs." [Citation.]' [Citation.] 'In pursuit of this goal, the STEP Act focuses upon "patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs."' [Citation.]" (People v. Rios (2013) 222 Cal.App.4th 542, 557-558 (Rios).)
"In addressing the problem, the STEP Act (California Street Terrorism Enforcement and Prevention Act; § 186.20 et seq.) created a substantive offense, set forth in section 186.22, subdivision (a), and a sentencing enhancement, set forth in subdivision (b) of the statute." (Rios, supra, 222 Cal.App.4th at p. 558.) We are concerned here with only the enhancement.
Section 186.22, subdivision (b)(1), provides for an enhancement to the sentence of "any person who is convicted of a felony committed 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 ...." The People bear the burden of proving both prongs of the enhancement. (Rios, supra, 222 Cal.App.4th at p. 561.) "There are two prongs to the enhancement. [Citation.] First, the prosecution is required to prove that the underlying felonies were 'committed for the benefit of, at the direction of, or in association with any criminal street gang.' [Citation.] Second, there must be evidence that the crimes were committed 'with the specific intent to promote, further, or assist in any criminal conduct by gang members.' [Citations.]" (Ibid.)
Defendant concedes the Colonia Bakers is a criminal street gang within the meaning of the statute.
"[T]he Legislature included the requirement that the crime to be enhanced be committed for the benefit of, at the direction of, or in association with a criminal street gang to make it 'clear that a criminal offense is subject to increased punishment under the STEP Act only if the crime is "gang related."' [Citation.]" (Albillar, supra, 51 Cal.4th at p. 60.) It is not a crime to be a gang member, however (Elizalde, supra, 61 Cal.4th at p. 540; People v. Rodriguez (2012) 55 Cal.4th 1125, 1131; Rios, supra, 222 Cal.App.4th at p. 559), and "[n]ot every crime committed by gang members is related to a gang" (Albillar, supra, at p. 60).
2. Evidence Crime was Gang Related
On appeal, the People maintain there is sufficient evidence supporting both prongs of the enhancement. They argue the first prong is supported by substantial evidence in the form of one, "significant evidence" defendant is a gang member and two, evidence of the crimes' nature: commission of a brazen crime of the type identified as a primary Colonia Bakers activity while in rival gang territory, thereby instilling fear in the community and earning respect. Regarding the second prong, the People argue defendant's specific intent is evidenced by the brash nature of the crimes, which instills fear in the community, intimidates people from contacting law enforcement, and nets credit cards to bring funds and goods into the gang and further its narcotics trade.
Evidence of defendant's membership in the Colonia Bakers, however, does not suffice to support the enhancement under section 186.22, subdivision (b)(1), because gang membership is neither a crime nor an element of the enhancement. Something more is needed to show that the robberies of Elias, Davalos and Benitez were gang related. Assuming defendant is a member of the Colonia Bakers and accepting as true Officer Escobedo's testimony that the Colonia Bakers commit robberies, that robberies benefit the gang by bringing in money or items that can be liquidated or bartered, and that brazen crimes benefit the gang by instilling fear in the community and commanding gang respect, there is insufficient evidence that defendant committed these robberies "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 ...." (§ 186.22, subd. (b)(1).)
Escobedo relied on defendant's tattoos and various records, including an admission in a police report authored by Officer Littlefield and jail booking admissions, in forming his opinion defendant is a Colonia Bakers member. As discussed post, defendant's jail booking admissions are inadmissible as evidence of his gang membership under the California Supreme Court's recent decision in Elizalde, supra, 61 Cal.4th 523. The California Supreme Court's even more recent decision in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) affects the admissibility of the admission in Littlefield's report, along with other reports relied on by Escobedo. We need not further address Sanchez or decide whether there is sufficient evidence of defendant's gang membership after the exclusion of evidence under Elizalde and Sanchez because defendant's gang membership is not an element of the enhancement and the enhancement is reversed on other grounds. We observe, however, that the remaining evidentiary basis for Escobedo's opinion after the exclusions mandated by Elizalde and Sanchez is tenuous at best. Escobedo testified that no one thing is definitive and he relies on a combination of factors. Excluding the jail booking admissions and the admission to Littlefield, defendant's tattoos are left as evidence of his gang membership.
The circumstances underlying defendant's attendance at a house party in rival Varrio Bakers territory is not clear, but he and the victims attended the same party. The victims testified they did not know defendant and had not seen him prior to the party, and there is no evidence suggesting defendant was in Varrio Bakers territory looking for trouble with rival gang members. (People v. Romero (2006) 140 Cal.App.4th 15, 17-19; accord People v. Olguin (1994) 31 Cal.App.4th 1355, 1382-1383 ["shooting ... precipitated by crossing out gang graffiti, replacing it with the name of another gang, and then shouting that gang's name to rival gang members"].) The victims, non-gang affiliated college students, were targeted while on their way to their car after leaving the party.
Defendant testified at trial and denied he was a gang member. He explained his gang tattoos as part of his association with gangs when he was younger. He also testified he knew Elias, had seen Davalos and Benitez before with Elias, and he attended the party with them after Elias invited him to the party. He denied robbing them and explained his possession of their personal property as "collateral" they offered to him pending their payment for the marijuana he provided to Elias. He said he panicked when police knocked on his door and started trying to hide the property, including throwing items in the toilet.
There is also no evidence the two men with defendant were gang members or associates. They were never identified and only the barest description was provided: they were Hispanic males, and one wore a black and green shirt. Although one or both men assisted in the robbery of Benitez by taking Benitez's watch, they stayed behind defendant for the most part and there is no evidence they said a word. The victims thought defendant looked and acted like a gang member, but he was not wearing gang colors, did not flash any gang signs and did not say anything gang related. Further, although defendant fired a gun in the air two times after robbing the victims, there is no evidence that this act was distinctive and distinguished this armed robbery as gang related.
Escobedo testified that royal blue, or dark blue, is the traditional gang color of Southern-based Hispanic gangs. He also testified that white T-shirts and blue jeans are very commonly worn by Colonia Bakers and Sureño gangs, but it is just a general style and does not necessarily indicate gang membership.
Approximately one hour after the robberies, defendant texted "Atomic" and stated he had credit cards, but "Atomic" was not identified at trial and there is no evidence he was a gang member or associate. Although Escobedo testified the text messages between "Atomic" and defendant were gang related, the messages' contents, while clearly crime related, do not support a reasonable inference they were gang related. Escobedo's testimony was entirely circular on this point: because the Colonia Bakers engage in criminal activities such as narcotics trafficking and theft to net money and goods for the gang, text messages regarding drugs and credit cards are, ergo, gang related.
Escobedo testified: "Well, the alleged offense occurred—or was reported, I believe sometime around 1:40 in the morning, and no more than an hour later, sent at 2:30 a.m., the person alleged to be [defendant] on his phone is already trying to liquidate these credit cards and basically trying to either sell them or trade them for narcotics. And the way I base that information off of is the text message that was related to before in relation to narcotics.
"So this is very consistent of what I've seen with the Colonia Bakers criminal activity. And in investigations referring to narcotics, I've reviewed several text messages and cellular phones that had had messages with the other Colonia Bakers saying hey, I have a half ounce of dope. I'll trade you for the gun or something to that extent. Or hey, let me front you this.
"And so in this case you have a robbery that's just occurred, and obviously, based on the conversation before, [defendant] is trying to hit this guy up that sells narcotics and— [¶] ... [¶]
"And that's the basis where I come from for these text messages." Here, however, there was no evidence defendant was texting with another Colonia Bakers member.
In short, other than defendant's membership in the Colonia Bakers, which is insufficient, there is little to nothing suggesting his robberies of Elias, Davalos and Benitez were anything other than crimes of opportunity, committed for his own benefit. That the Colonia Bakers commit certain crimes, including robbery, to obtain money or items to sell or liquidate and a Colonia Bakers member robbed three college students does not constitute substantial evidence that the crimes here were gang related within the meaning of section 186.22, subdivision (b)(1).
Our conclusion draws further support from In re Daniel C. (2011) 195 Cal.App.4th 1350 (Daniel C.), People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa), and People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon), cited by defendant. While the People assert the cases are inapposite, we disagree.
In Ramon, the defendant was stopped while driving a stolen truck. He was convicted of receiving a stolen vehicle and other firearm related offenses. In relevant part, the defendant challenged the gang enhancement (§ 186.22, subd. (b)(1)) as unsupported by substantial evidence. (Ramon, supra, 175 Cal.App.4th at p. 846.) The gang expert testified that the crime was gang related because the defendant and his codefendant were members of the Colonia Bakers and they were stopped in a stolen vehicle in their gang's territory. (Id. at p. 849.) This court found the evidence insufficient to show the defendant committed the crimes with the specific intent to promote the Colonia Bakers, explaining, "Simply put, in order to sustain the People's position, we would have to hold as a matter of law that two gang members in possession of illegal or stolen property in gang territory are acting to promote a criminal street gang. Such a holding would convert section 186.22(b)(1) into a general intent crime. That statute does not allow that. [Citations.]" (Id. at p. 853.)
In Ramon, we stated, "The analysis might be different if the expert's opinion had included 'possessing stolen vehicles' as one of the activities of the gang. That did not occur and we will not speculate." (Ramon, supra, 175 Cal.App.4th at p. 853.) In this case, the gang expert did testify robbery is a primary activity of the Colonia Bakers but unlike in Ramon, there was no evidence defendant committed the crime with another gang member. Without more, the mere fact that defendant, a Colonia Baker, committed a robbery and robbery is one of the crimes committed by Colonia Bakers is insufficient to show this robbery was gang related.
The defendant in Ochoa committed carjacking. (Ochoa, supra, 179 Cal.App.4th at p. 652.) He was a member of the Moreno Trece gang, but he acted alone and there was no evidence the victim was a gang member or rival. (Id. at p. 662.) There was also no evidence the defendant bragged about the crime, had permission to commit the crime or was directed to commit the crime by the gang. (Ibid.) Although he did not have observable gang tattoos, the victim, as in this case, perceived him to be a gang member, but as the court noted, "The gang enhancement cannot be sustained based solely on defendant's status as a member of the gang and his subsequent commission of the crimes." (Id. at p. 663.) Further, the "[d]efendant did not call out a gang name, display gang signs, wear gang clothing, or engage in gang graffiti while committing the ... offenses." (Id. at p. 662.) Regarding the gang expert's testimony that car theft is a "'signature' crime" of the Moreno Trece gang and carjacking is a "'signature' crime of gangs in general," the court observed, "There was no evidence that only gang members committed carjackings or that a gang member could not commit a carjacking for personal benefit, rather than for the benefit of the gang." (Id. at p. 662.)
Finally, the juvenile defendant in Daniel C. committed robbery and, on appeal, he challenged the gang enhancement (§ 186.22, subd. (b)(1)). The court concluded there was sufficient evidence supporting the finding that he committed the crime "'in association with' a criminal street gang" but insufficient evidence supporting the finding of "specific intent to promote, further, or assist in any criminal conduct by gang members." (Daniel C., supra, 195 Cal.App.4th at pp. 1358-1359.) In reaching that conclusion, the court noted the absence of evidence that in stealing the bottle of liquor from the store, the defendant acted in concert with those he was with: he stole the bottle after they had exited the store, they did not assist with his subsequent assault on the manager with the broken bottle neck and there was no evidence they even saw what happened. (Id. at p. 1361.) In addition, the manager did not know the defendant or his companions were gang members or affiliates. (Ibid.)
Rather than inapposite, we find these cases instructive, as they involve defendants with varying degrees of gang involvement, but little to nothing suggesting the crimes were gang related within the meaning of section 186.22, subdivision (b)(1). Notably, in arguing that substantial evidence supports the jury's finding, the People do not draw our attention to any cases with facts analogous to those here.
In conclusion, "speculation, supposition and suspicion are patently insufficient to support an inference of fact." (People v. Franklin (2016) 248 Cal.App.4th 938, 951.) The evidence supporting the gang enhancement must be reasonable, credible, and of solid value. (Albillar, supra, 51 Cal.4th at p. 60; People v. Franklin, supra, 248 Cal.App.4th at p. 951.) In this case, there is an absence of facts distinguishing these robberies from mere crimes of opportunity committed by someone involved in a gang versus crimes "committed for the benefit of, at the direction of, or in association with [the Colonia Bakers], with the specific intent to promote, further, or assist in any criminal conduct by gang members" (§ 186.22, subd. (b)(1)). The gang enhancement must therefore be reversed, as it is not supported by substantial evidence.
II. Admission of Jail Booking Statements
Defendant also argues that the evidence of his admissions to gang membership made during jail booking processes was admitted in error, in violation of his rights under the Fifth and Fourteenth Amendments, and the error was prejudicial, requiring reversal of the gang enhancement. The People concede this evidence was admitted in error in light of Elizalde, but contend any error was harmless.
We do not reach defendant's argument that his trial counsel rendered ineffective assistance of counsel in failing to object to this evidence, as the People do not argue the claim was forfeited and they concede error under Elizalde. --------
In Elizalde, the California Supreme Court held that given officials' legitimate interests in reducing or preventing institutional violence, "it is permissible to ask arrestees questions about gang affiliation during the booking process." (Elizalde, supra, 61 Cal.4th at p. 541.) However, a defendant's answers to gang questions posed during the jail booking process, absent Miranda warnings, are inadmissible in the prosecution's case-in-chief. (Elizalde, supra, at p. 541.) Thus, the admission of defendant's unadmonished jail booking process statements regarding gang affiliation was erroneous and we accept the People's concession as required under Elizalde.
"The erroneous admission of a defendant's statements obtained in violation of the Fifth Amendment is reviewed for prejudice under the beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18. [Citations.] That test requires the People 'to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' [Citation.]" (Elizalde, supra, 61 Cal.4th at p. 542; People v. Leon (2016) 243 Cal.App.4th 1003, 1020.)
In this case, defendant's jail booking process admissions, along with his admission to Officer Littlefield, factored prominently in the gang expert's opinion of defendant's gang membership. We therefore reject the People's argument downplaying the importance of the jail admissions. We need not determine whether the error was prejudicial, however, given our conclusion that the gang enhancement finding is not supported by substantial evidence and must be reversed.
DISPOSITION
As to counts 1 through 4, the jury's true findings on the gang enhancement allegations under section 186.22, subdivision (b)(1), are reversed and this matter is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.
/s/_________
KANE, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
GOMES, J.