Evidence to Support a Gang Enhancement in California

In In re Frank S. (2006) 141 Cal.App.4th 1192, the minor contended the evidence was insufficient to support a gang enhancement in connection with his possession of a concealed knife. A gang expert testified the minor possessed the knife to protect himself; a gang member would use the knife for protection from rival gang members and to assault rival gangs; and his possession of the knife benefited his gang as it helped provide them protection should they be assaulted. The court agreed with the minor's contention that the evidence was insufficient to show he had a specific intent to promote, further, or assist in any criminal conduct by gang members. (Id. at pp. 1195-1196.) The court first emphasized that "crimes may not be found to be gang-related based solely upon a perpetrator's criminal history and gang affiliations." (Id. at p. 1195.) The court observed that the gang expert "testified to 'subjective knowledge and intent' of the minor," and such testimony was "'much different from the expectations of gang members in general when confronted with a specific action.'" (Id. at pp. 1197-1198.) The court concluded "nothing besides weak inferences and hypotheticals show the minor had a gang-related purpose for the knife." (Id. at p. 1199.) The court continued: "Unlike in other cases, the prosecution presented no evidence other than the expert's opinion regarding gangs in general and the expert's improper opinion on the ultimate issue to establish that possession of the weapon was 'committed for the benefit of, at the direction of, or in association with any criminal street gang . . . .' The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. . . . To allow the expert to state the minor's specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended." (Frank S., supra, 141 Cal.App.4th at p. 1199.) And, as Frank S. also stated, "'The crime itself must have some connection with the activities of a gang . . . .'" (Frank S., supra, 141 Cal.App.4th at p. 1199.) Other cases also suggest that some evidence besides expert testimony on gang culture and habits is necessary to establish the specific intent to promote or further criminal conduct by gang members. Thus: In People v. Morales (2003) 112 Cal.App.4th 1176 (Morales), the court observed that, arguably, evidence that one gang member committed a crime in association with other gang members "alone would be insufficient, even when supported by expert opinion, to show that a crime was committed for the benefit of a gang." (Id. at p. 1198.) Morales observed that "the typical close case is one in which one gang member, acting alone, commits a crime." (Ibid.) In Morales, however, the crime was committed in association with fellow gang members, and the statute identifies two alternatives to the element requiring commission of the crime for the benefit of a street gang: the crime may also be committed "at the direction of, or in association with" a criminal street gang. (Ibid.) In Morales, the jury could reasonably infer the requisite association "from the very fact that defendant committed the charged crimes in association with fellow gang members." (Ibid.) Further, there was also sufficient evidence "of the specific intent element (as opposed to the benefit/direction/association element)" of the enhancement. (Ibid.) Thus: "There was evidence that defendant intended to commit robberies, that he intended to commit them in association with Flores and Moreno, and that he knew that Flores and Moreno were member of his gang. Moreover, . . . there was sufficient evidence that defendant intended to aid and abet the robberies Flores and Moreno actually committed. It was fairly inferable that he intended to assist criminal conduct by his fellow gang members." (Ibid.) People v. Romero (2006) 140 Cal.App.4th 15 is to the same effect as Morales. In Romero, the court rejected defendant's argument that, even if the crimes were committed to benefit the gang, defendant lacked the requisite specific intent. (Id. at p. 19.) The "specific intent element is satisfied if defendant had the specific intent to 'promote, further, or assist' fellow gang member Moreno in the shootings of the victims." (Id. at p. 20.) Evidence that defendant intended to commit a crime, intended to help Moreno commit a crime, and knew Moreno was a member of his gang "creates a reasonable inference that defendant possessed the specific intent to further Moreno's criminal conduct." (Ibid.) In People v. Gamez (1991) 235 Cal.App.3d 957 (disapproved on another ground in People v. Gardeley, supra, 14 Cal.4th at p. 624, fn. 10), the court rejected defendant's contention there was no proof that a shooting was done with the intent to promote, further or assist criminal conduct by gang members. (Id. at p. 978.) In Gamez, defendant was a member of the Southside gang, and drove to a location in a rival gang's territory (the Highland Street gang), where he participated in a drive-by shooting. (A Highland Street gang member ("Rambo") had parked his car in front of the house where the drive-by shooting occurred, and where his girlfriend lived with her family. (Id. at p. 963.)) Expert testimony established that Hispanic gangs were extremely territorial; venturing onto rival gang territory was done at great risk; "Rambo" had recently been involved in the shooting of a Southside gang member; and in gang culture, such an incident could not go unavenged and would warrant a retaliatory strike. The court concluded this constituted sufficient evidence that defendant's actions were done with the intent to aid and promote the Southside gang. (Id. at p. 978.) In People v. Margarejo (2008) 162 Cal.App.4th 102, the defendant gang member was convicted of evading police officers on a long car chase, during which he continually made the Highland Park gang sign to pedestrians he passed and even to the police. A gang expert testified defendant's gang-signing was to intimidate the community. The court concluded there was ample basis for a jury to conclude Margarejo "was serving the criminal purposes of the Highland Park gang by turning his flight into a public display of laughing, taunting defiance." (Id. at pp. 109-110.)