In Briceno v. Scribner (2009) 555 F.3d 1069, two members of a criminal street gang robbed several persons on Christmas Day for money to buy Christmas presents. The gang investigator opined that regardless of the gang members' purpose in committing the crimes, their criminal acts glorified their gang and increased the defendants' status within the gang, giving them the opportunity to participate in other crimes at the request of the criminal street gang. (Briceno, supra, 555 F.3d at pp. 1072-1074.) The Briceno court held that the gang expert's testimony was insufficient to prove the enhancement because he responded only in generalities and did not provide any direct or circumstantial evidence of the defendant's specific intent to facilitate criminal conduct by gang members. (Id. at pp. 1078-1079.)At trial, the gang expert testified the crimes were committed for the benefit of, at the direction of, or in association with the gang because the crimes would glorify the gang and enhance the defendant's status within the gang. (Id. at p. 1074.) The expert testified his opinion would not change if the crimes were committed to buy Christmas presents. (Ibid.) The Court affirmed. (Id. at p. 1075.) In the federal habeas corpus proceeding, the defendant argued the evidence, including the gang expert's testimony, was insufficient to establish his specific intent to promote or further the gang's criminal activities and therefore did not support the enhancements under section 186.22(b). (Briceno, supra, 555 F.3d at p. 1078.) The Ninth Circuit Court of Appeals agreed. (Ibid.) Relying on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia), the court concluded evidence a gang member committed a crime, without evidence linking that crime to the gang's criminal activities, was insufficient to support the inference the gang member committed that crime with the specific intent to promote, further, or assist in the gang's criminal conduct. (Briceno, supra, 555 F.3d at p. 1079.) The court noted circumstantial evidence of specific intent, such as commission of the crime on gang turf or against rival gangs, or making gang members known to the robbery victims, was lacking. (Id. at p. 1081.) The jury made section 186.22(b)(1) findings that were affirmed by the California Court of Appeal. The Ninth Circuit reversed, finding insufficient evidence that the robberies were committed with the specific intent to facilitate other criminal conduct of the gang. (Briceno, at pp. 1078-1079.) That conclusion was partly based on the lack of a connection between the robberies and the gang. The Briceno majority opinion listed other cases under section 186.22(b)(1), noting that such cases typically involve a defendant who "either committed the crime to protect gang 'turf' or brandished gang signs or a gang moniker during the attack." (Briceno, at p. 1081.) The reviewing court concluded that a gang expert's testimony, which was based primarily on hypothetical situations, could help to establish that the defendant's crime ultimately benefitted the gang; however, the expert's testimony "says nothing about the defendant's specific intent in committing the robberies." (Id. at p. 1079.) The Ninth Circuit Court noted that evidence of the defendant's intent was "lacking," because there was no evidence that the crime occurred within the gang's territory; that the crime occurred within a rival gang's territory; or that either defendant made their gang membership known to the victims. (Id. at p. 1081.) Accordingly, the Ninth Circuit Court concluded that the gang enhancement was not supported by substantial evidence, specifically, the element of a "'specific intent to promote, further, or assist in any criminal conduct by gang members.'" ( 186.22, subd. (b)(1)). (Briceno, at p. 1082.)