STEP Notices in California

In People v. Ferraez (2003) 112 Cal.App.4th 925, the defendant was arrested at a swap meet for possession of rock cocaine for sale. (Id. at p. 928.) The defendant told the arresting officer that he had acquired permission to sell drugs from the gang who claimed the swap meet as its territory. (Ibid.) Defendant admitted to being a gang member, had made previous such admissions, had a gang moniker, had a gang tattoo, had received five Street Terrorism Enforcement and Prevention Act (STEP Act) notices, and had been on probation with gang terms. (Id. at pp. 928-929.) However, the defendant asserted that he was not selling the drugs for the gang, but was doing so for personal, economic reasons. (Ibid.) The prosecution's gang expert opined that, based on a hypothetical identical to the facts of the case, the defendant intended to sell the drugs for the benefit of, or in association with, the gang. (Id. at p. 928.) He testified that the proceeds "would be used to benefit the gang through the purchase of weapons or narcotics, or as bail for a fellow gang member. He also testified that the sale of drugs promotes, furthers, and assists criminal conduct by the gang." (Ibid.) The appellate court upheld the jury's finding that the crime was committed to benefit or assist a criminal street gang. (Ferraez, supra, 112 Cal.App.4th at pp. 927-928.) However, the court noted that "undoubtedly, the expert's testimony alone would not have been sufficient to find the drug offense was gang related. But here it was coupled with other evidence from which the jury could reasonably infer the crime was gang related." (Id. at p. 931.) This "other evidence" included the facts that defendant was selling the drugs in gang territory, had gained the gang's permission to sell the drugs, and his admissions regarding gang membership and associations. (Ibid.) Thus, it suggested that expert testimony alone, without an underlying evidentiary foundation for that testimony, would be insufficient to justify a true finding on a gang enhancement.