People v. Ware ( 2022 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
VICTOR WARE et al.,
Defendants and Appellants.
S263923
Fourth Appellate District, Division One
D072515
San Diego County Superior Court
SCD255884
December 1, 2022
Justice Kruger authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Groban, Jenkins, and Guerrero concurred.
PEOPLE v. WARE
S263923
Opinion of the Court by Kruger, J.
Defendant Nicholas Hoskins was charged with and
convicted of conspiracy to commit murder, for which he was
sentenced to 25 years to life. The charged conspiracy consisted
of a two-year-long agreement among at least 20 gang members
to kill members of rival gangs, without agreement as to any
specific times, persons, or places where killing would take place.
There was no evidence that Hoskins had committed or
participated in any act of violence. The prosecution instead
sought to tie Hoskins to the charged conspiracy primarily
through evidence of his gang membership, access to weapons,
and social media posts celebrating violence against rival gangs.
Hoskins argues this evidence is insufficient to support a
conviction for conspiracy to commit murder. Reviewing the
entire record in light of established principles of conspiracy law,
we agree. We reverse the judgment of the Court of Appeal and
remand for further proceedings.
I.
A.
In the early 2010’s, a violent conflict broke out among
criminal street gangs in the San Diego area. The conflict was
sparked by the April 2011 killing of Dereck Peppers, who was a
member of the 5/9 Brim criminal street gang, a set of the Bloods
gang. In response to the killing, the Brim gang declared war on
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rival Crips gangs, leading to a spike in gang-related shootings
that resulted in multiple injuries and deaths.
Hoskins was a member of the 5/9 Brim gang. The
prosecution charged him, along with fellow gang members
Dionte Simpson and Victor Ware, with multiple offenses
stemming from the events of the early 2010’s. Among other
things, the prosecution alleged that all three were participants
in a conspiracy spanning a roughly two-year period between
January 1, 2012, and April 23, 2014, and involving at least 20
Brim members in total. The prosecution alleged the object of
this conspiracy was the murder of rival gang members.
At trial, the prosecution presented evidence that both
Simpson and Ware had either committed or aided and abetted
shootings aimed at rival gang members. By contrast, the
prosecution presented no evidence that Hoskins either
committed or aided and abetted any act of violence. Nor did the
prosecution present direct evidence that Hoskins agreed with
others to commit violent acts. To establish Hoskins’s
participation in the charged conspiracy, the prosecution instead
relied on four categories of circumstantial evidence: (1) evidence
of Hoskins’s gang membership; (2) evidence that Hoskins had
access to a gun on at least one occasion during the conspiracy;
(3) evidence of Hoskins’s involvement in the events surrounding
the August 27, 2013, shooting of Byreese Taylor; and
(4) evidence of Hoskins’s social media posts celebrating violence
against rival gangs. Because this case concerns a challenge to
the sufficiency of the evidence against Hoskins, we will describe
each category of evidence in some detail.
1. Evidence of gang membership. The prosecution
presented extensive evidence establishing Hoskins’s
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membership in both the 5/9 Brim and a subset of the gang
known as the “Hit Squad.” This evidence included a photograph
showing a large “B” tattooed on Hoskins’s chest, as well as
photographs from Hoskins’s phone and social media accounts in
which he or other gang members made Brim or “Crip killing”
gang signs and wore red clothing associated with the gang. In
addition, Hoskins was a member of the Southside Brim Gang
Facebook group. In his social media posts, he used unusual
spelling and terminology common among Brim members,
replacing the letter “C” with either a “K” or “Ck” (for “Crip killer”
or “Crip killing”) or “B” (for “Blood”), and occasionally signing off
his posts with “5/9” (for the 5/9 Brim). One of his nicknames was
“Bick Nick.” The prosecution also introduced a photograph
showing another one of Hoskins’s nicknames written on the wall
of a house belonging to an alleged coconspirator, alongside the
nicknames of other Brim and Hit Squad members. Finally, a
witness familiar with the defendants testified that Hoskins was
part of the Hit Squad, also known at various times as the “Young
Hit Squad” and the “Tiny Hit Squad.” According to the witness,
this subset of the Brims had more “shooters” and “K’s,” meaning
“kills,” than another subset, the “Hound Unit.”
2. Access to firearms. The prosecution presented evidence
that in February 2012, Hoskins was riding in a car that was
pulled over for a faulty license plate light. Hoskins and the two
other people in the car — both alleged 5/9 Brim members —
were eventually searched, and Hoskins was found with a loaded
firearm concealed in a sock tucked into his pants. Hoskins was
arrested with a fellow Brim member. While the two were in the
patrol car, Hoskins told the other Brim member that he would
take responsibility for the gun and other contraband found in
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Opinion of the Court by Kruger, J.
the car. There was no evidence linking the gun to any prior
shootings.
The prosecution also presented evidence that in August
2012, Hoskins and an unidentified male were questioned by
police officers based on a suspected curfew violation. (In fact,
Hoskins was 19 years old at the time, so the curfew did not
apply.) Hoskins was questioned in front of the driveway of a
house on Florence Street and initially gave the police a false
name. At some point, the unidentified male who was with
Hoskins walked to the backyard of that house. Officers later
recovered a loaded revolver from the backyard. They had not
seen Hoskins enter the backyard, nor was there any evidence
that Hoskins knew about the gun.
3. Shooting of Byreese Taylor. On August 27, 2013, Taylor
was walking in West Coast Crips (WCC) territory when he was
shot by a passenger riding in the front seat of a car. The
passenger, who was wearing a red cloth over his face, was not
identified; the driver of the car was Timothy Hurst, a 5/9 Brim
member. According to the prosecution’s gang expert, the
shooting appeared to be a mistake: Taylor was not a rival gang
member, but a member of a gang allied with the Brims. Hurst
was later arrested for and convicted of the shooting.
The evidence showed Hoskins was a longtime friend of
Hurst’s. Their grandmothers were neighbors, and the two men
had grown up together and remained close friends. After Hurst
was arrested, officers searched his car and found a mixture of
DNA on the passenger side of the vehicle from at least four
individuals, including Hoskins’s as “a possible major contributor
to that mixture.” The prosecution expert could not, however,
determine when the DNA had entered the van or whether it had
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arrived through direct contact or was transferred from another
object.
To link Hoskins to the Taylor shooting, the prosecution
introduced several photographs of Hoskins and his alleged
coconspirators that were taken in the vicinity of the shooting.
This included a photograph, uploaded to Hoskins’s Facebook
account on February 21, 2013 — about six months before the
Taylor shooting — showing Hurst “tossing up 5/9 Brim and Crip
killer” signs. The prosecution noted that the photograph was
taken at a known WCC hangout about a mile from where Taylor
was shot and argued that the photograph demonstrated the two
were “laying the groundwork” for the Taylor shooting. The
prosecution also introduced two photographs — posted on
Instagram by another Brim member, Edward Paris, on the
morning of August 27, 2013 — showing Hoskins and Paris
standing in the same park, throwing up gang signs, and
appearing to give the middle finger to WCC. The photographs
were taken about seven hours before Taylor was shot and one
mile away from the location of the shooting.
The prosecution also introduced Facebook messages that
Hoskins sent after the shooting to Taylor and Hurst’s girlfriend,
in which Hoskins discussed the case against Hurst and tried to
dissuade Taylor from testifying so that Hurst could “beat his
[c]ase.” Hoskins threatened to reveal that Taylor was
“snitching” to the police, but ultimately did not carry out this
threat.
About six months after the shooting, Hoskins posted on
Facebook: “I switch up on bitcKh [n-words] fast I Love my Bros
But I’m truer to the Kode sHit I’d turn on TB if he did some gay
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sHit and vise versa nuttin personal #onBrims.”1 “TB” referred
to Hurst, who was also known as “Tim Brim.” According to the
prosecution’s gang expert, Hoskins meant that he “love[d] his
gang,” but was “truer to the code, the code being no snitching.”
The expert suggested Hoskins meant to call out Hurst for
talking to the police about the circumstances of the shooting.
4. Social media posts. Hoskins was active on social media,
and the prosecution introduced extensive evidence of his social
media posts and photographs, as well as photographs of Hoskins
uploaded to other 5/9 Brim members’ accounts, to demonstrate
Hoskins’s awareness and approval of the violent rivalry against
Crips. The prosecution argued that Hoskins’s social media
activity provided a “window” into his mind: his posts were “his
words,” gave the jury “an idea of the mindsight of Mr. Hoskins,”
and reflected a desire to “tell[] the world on Facebook” that he
was serious about his “Crip killing.” The prosecution also
argued that Hoskins used social media to disrespect rival gang
members. He was Facebook “friends” with at least two rival
gang members, one of whom was a victim in a shooting allegedly
committed by a Brim member, indicating that at least some
rival gang members could view his Facebook posts. Though
some of Hoskins’s status updates could be seen and commented
on by nonfriends, it was otherwise unclear which of his posts
were publicly accessible and which were visible only to his
Facebook friends.
1
Throughout this opinion, we quote the relevant
communications as they appeared in Hoskins’s original social
media posts, including his spelling and capitalization. But
consistent with the approach taken in the Court of Appeal and
by the parties, we use the term “n-word” rather than the original
that appeared in the posts.
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Some of the posts were close in time or location to gang-
related shootings, which the prosecution offered as proof that
Hoskins was “encouraging, promoting, and furthering the
violence.” For example, in April 2012, several days after a rival
Crips gang member was shot, Hoskins posted on Facebook that
“cKrossys” — referring to the Crips — “got Hit, all I need is some
Dro and my day is set.”2 Two 5/9 Brim members were later
prosecuted for the shooting and convicted. In February 2013,
Hoskins posted a photograph of Hurst standing at a
recognizable street intersection, near the site of a January 2012
shooting in WCC gang territory that was linked to the Brims.
The prosecution suggested Hoskins posted the photograph to
“brag about” the 2012 shooting.
Other posts seemingly taunted rivals. In February 2013,
Hoskins posted a photograph of himself in a well-known WCC
park with the caption, “cKome Out nd play! We out Here! Earth
is my turf & dats #OnMyTurf!” In his opening statement, the
prosecutor emphasized that “[i]n the world of gangs, respect is
paramount,” and that going into rival gang territory and
“post[ing] it for everyone to see” is “incredibly disrespectful.” In
March 2014, WCC member Paris Hill was murdered. The 5/9
Brims were not suspected to be involved in Hill’s death. A few
days later, Hoskins posted on Facebook: “That’s some gay sHit
not Gansta yall getBacK taggin in the set? That’s all yo
DeadHomie worth? That’s why I kall yall cKraBs.” The
prosecution argued that Hoskins knew some WCC members
would see his message and was mocking them for their response
2
The full Facebook post read: “Son was Born healthy.
cKrossys got Hit, all I need is some Dro and my day is set lol
#Happy Easter!”
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Opinion of the Court by Kruger, J.
to Hill’s death, calling them a derogatory term for Crips
members, “crabs.” Hoskins also posted that message hours after
WCC gang member Carlton Blue had been shot; the Brims were
suspected to be involved in Blue’s shooting. The prosecution
also introduced various online exchanges, including messages
between Hoskins and a rival WCC member taunting each other
about a brief encounter on the street.
Finally, the prosecution introduced a number of Hoskins’s
Facebook posts in which he celebrated violence against rival
gangs and described his life as a gang member. In one post,
Hoskins wrote that he was “tired of grindin, fighting, runnin,
jail, death, stress, betrayal and everything else this game has to
offer but it’s what we signed up for right?” On other occasions,
he wrote, “Never BacK Down is the MuthafucKin motto!” and
“Violence may Be the easy thing to do But I like easy, it makes
sense! #9s!,” with “#9s” referring to the 5/9 Brims. In a separate
post, Hoskins wrote in part, “Bl59ds kill rips & rips kill Bl59ds
[n-words] . . . these are all things we already know so why do we
trip? Started with a cKhoicKe,” which the prosecution’s gang
expert translated in part to, “Bloods kill Crips. Crips kill
Bloods.” Hoskins also explained what it meant to be an “OG or
older homie/general,” writing that gaining such an elevated
status “isn’t established by age or how long you been around I
mean it Kount But u need the stripes and reputation to matcKh.
Bighomie lol.” According to the prosecution’s gang expert, this
meant that building one’s status and reputation within the gang
required putting in the “work,” which could involve “some type
of mission,” such as a burglary, robbery, or shooting. To prove
that Hoskins had acquired an elevated status, the prosecution
introduced Facebook evidence of Hoskins identifying himself as
“Big Bick Nick” and of a fellow Brim member identifying himself
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Opinion of the Court by Kruger, J.
as “Little Bick Nick”; according to the prosecution’s expert, it
was a sign of respect for a younger member to take an older
member’s name, and this usually indicated that the older
member was “working towards OG status.”
The prosecution also called attention to several of
Hoskins’s Facebook posts, including: (1) a February 2013
photograph of Hoskins making the Crip killer hand sign with
the caption, “Spell it BicK NicK tell he really Bout his cK’s,” with
“cK’s” meaning “Crip killing,” (2) a May 2014 photograph of
Hoskins wearing a red bandana around his face, with the
caption, “Rags around our facKe to Beat the Kase inKase a [n-
word] look 5/9 BrimGang,” accompanied by several terms
related to the rival WCC and Neighborhood Crips (NC) gangs,
and (3) a May 2014 status update, “Ganstas don’t flicK it with
gigs they use em,” which the prosecution gang expert translated
as, “Real gangsters don’t take pictures with their guns. They
use them.” The prosecution also introduced a March 2014 post
from Hoskins: “My okkupation Steal,Kill,&Deal everything
gotta prise even your life.” The prosecution’s gang expert
explained this meant that Hoskins saw his job as to “steal, kill,
and deal,” and that, as part of his work, he would “put a value
on anything,” “even your life.” The prosecution’s gang expert
also acknowledged, however, that not every 5/9 Brim member
who displayed “Ck” on social media killed Crips; that some
members might “do it strictly on social media,” meaning only
post about Crip killing without actually doing so; and that not
all Brim members commit crimes.
B.
The jury found Hoskins and his codefendants guilty of
conspiracy to commit murder, in addition to other offenses.
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Opinion of the Court by Kruger, J.
Hoskins was also convicted of participation in a criminal street
gang conspiracy, in violation of Penal Code section 182.5, while
his two codefendants were convicted of various offenses
including attempted murder. As to all three defendants, the
jury found the conspiracy was for the benefit of a criminal street
gang. (Pen. Code, § 186.22, subd. (b)(1).) Hoskins was
sentenced to 25 years to life in prison. (Id., §§ 182, subd. (a)
[conspiracy], 187, subd. (a) [murder].)
On appeal, Hoskins challenged the sufficiency of the
evidence supporting his convictions. The Court of Appeal
reversed the gang conspiracy conviction for lack of evidence
establishing a particular element of that offense. 3 But the court
rejected Hoskins’s challenge to his murder conspiracy
conviction, finding sufficient evidence that Hoskins and his
alleged coconspirators “came to a mutual understanding to
murder rival NC and WCC gang members and that [Hoskins]
participated in the conspiracy.” (Ware, supra, 52 Cal.App.5th at
p. 939.) Though the court acknowledged that “the prosecution
failed to prove that [Hoskins] was a direct participant or aider
and abettor in any of the shootings,” it found sufficient evidence
from which a jury could conclude Hoskins knew about the
conspiracy and had the requisite intent to join it and facilitate
the object offense. (Id. at p. 941.)
The Court of Appeal identified several pieces of evidence
in support of its conclusion. First, the court pointed to Hoskins’s
3
Specifically, the court concluded there was no evidence
Hoskins had promoted, furthered, assisted, or benefited from
“ ‘any felonious criminal conduct’ ” by 5/9 Brim members, as
opposed to conduct not constituting a felony. (People v. Ware
(2020) 52 Cal.App.5th 919, 951 (Ware).) The court’s ruling on
Hoskins’s gang conspiracy conviction is not before us.
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Opinion of the Court by Kruger, J.
social media posts about “Crip killing,” including photographs of
Hoskins “tossing the gang sign for Tiny Hit Squad” and “ ‘CK’ ”;
his nickname of “ ‘Bick Nick’ ”; and his Facebook posts that he
was “really about his Crip killing” and his “ ‘occupation’ ” was to
“ ‘steal, kill, and deal.’ ” (Ware, supra, 52 Cal.App.5th at
pp. 941–942.)
The court next pointed to evidence concerning Hoskins’s
proximity to firearms, including his prior arrest with a
concealed gun and one-time proximity to a loaded revolver,4 as
well as his Facebook post that, according to an expert, meant
“gangsters do not take photographs with guns, they use them.”
(Ware, supra, 52 Cal.App.5th at p. 942.) From this evidence, the
court concluded, a jury could infer “Hoskins carried firearms and
had the intent to use them.” (Ibid.)
The Court of Appeal also pointed to certain Facebook posts
that seemed to celebrate violence against Crips members and
were made close in time to two shootings allegedly part of the
conspiracy. The court held a jury could reasonably infer that
Hoskins’s April 2012 post about a Crips member getting shot —
“cKrossys got Hit” — was about the shooting of a rival gang
member just days earlier. (Ware, supra, 52 Cal.App.5th at
p. 942.) A jury could also reasonably infer that Hoskins knew
about the August 27, 2013, Taylor shooting in advance because
of the photograph, taken hours before the shooting, showing
4
The Court of Appeal stated that the loaded revolver was
recovered “in an area after chasing Hoskins.” (Ware, supra, 52
Cal.App.5th at p. 942.) This appears to be an error; the record
does not show Hoskins was chased, and the loaded revolver was
found in the backyard of a house of which Hoskins was standing
in front. The apparent misstatement of the evidence does not,
however, affect our analysis of the issue presented.
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Opinion of the Court by Kruger, J.
Hoskins and a fellow 5/9 Brim member “ ‘flipping off’ ” a rival
gang about one mile away from where Taylor was later shot.5
(Ibid.)
Finally, the Court of Appeal concluded that because of
“Hoskins’s relationship to the coconspirators,” a reasonable jury
could combine evidence of Hoskins’s social media activity and
proximity to firearms with his alleged coconspirators’ conduct to
infer that Hoskins “knew of the conspiracy and had the
deliberate, knowing, and specific intent to join” it. (Ware, supra,
52 Cal.App.5th at p. 942.) According to the court, this
conclusion was bolstered by the jury’s finding of gang
enhancements against all defendants, which “necessarily”
meant the jury “found the evidence of interdependence among
the participants in the crimes to be persuasive.” (Ibid.)
The Court of Appeal’s opinion was initially unpublished.
After filing, the Attorney General requested partial
publication.6 The Attorney General argued that the conspiracy
portion of the opinion merited publication because it “applies an
existing rule of law to a set of facts significantly different from
those stated in published opinions.” Specifically, the opinion
“upholds the conspiracy to commit murder convictions . . . based
5
The Court of Appeal wrote that Hoskins and Paris were
“ ‘flipping off’ NC,” but the evidence suggests they were trying
to insult WCC, a different rival Crips gang, instead. (Ware,
supra, 52 Cal.App.5th at p. 942.) Again, the apparent
misstatement is not material to our analysis of the issue
presented.
6
In a separate letter, the San Diego District Attorney’s
Office sought, and the Court of Appeal granted, publication of
the portion of the opinion discussing the withdrawal of
Hoskins’s attorney.
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on the broad context of forming an agreement amongst the gang
members to kill rival gang members, without any agreement as
to specific time, person or place that any killing would take
place.” (Citing Cal. Rules of Court, rule 8.1105(c)(2), (3).)7
Because there were no published opinions upholding a
conspiracy like the one charged here, publication would “assist
prosecutors in prosecuting gang members for conspiracy to
commit murder based on forming a tacit general agreement to
kill rival gang members.” The Court of Appeal granted the
partial publication request.
We granted Hoskins’s petition for review to address the
nature of the evidence necessary to establish participation in the
charged murder conspiracy.
II.
Conspiracy “ ‘is an inchoate offense, the essence of which
is an agreement to commit an unlawful act.’ ” (People v. Johnson
(2013) 57 Cal.4th 250, 258 (Johnson).) This crime has four
elements: (1) the existence of an agreement between at least
two persons; (2) the specific intent to agree to commit an offense;
(3) the specific intent to commit the offense that is the object of
the agreement; and (4) an overt act in furtherance of the
conspiracy, which may be committed by any conspirator. (Pen.
Code, § 182, subd. (a)(1); see, e.g., People v. Morante (1999) 20
Cal.4th 403, 416.)
The first element, concerning the existence of an
agreement, “is the crux of criminal conspiracy.” (People v.
7
The Attorney General also sought, and the Court of Appeal
granted, publication of the opinion section discussing First
Amendment challenges to the use of social media evidence at
trial.
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Homick (2012) 55 Cal.4th 816, 870.) As the Attorney General
acknowledged in his publication request, this case is unusual in
that the alleged object of the conspiracy is nonspecific: The
charged conspiracy instead arises in “the broad context of
forming an agreement amongst the gang members to kill rival
gang members, without any agreement as to specific time,
person or place that any killing would take place.”
In this appeal, Hoskins does not dispute that the
prosecution has adequately proved the first element of
conspiracy, the existence of an agreement. Nor does he
challenge the adequacy of the prosecution’s showing as to the
final element, an overt act in furtherance of the conspiracy. To
satisfy this particular element, a jury need only find that any
member of the conspiracy committed a single overt act, whether
criminal or not. (People v. Russo (2001) 25 Cal.4th 1124, 1135;
accord, People v. Smith (2014) 60 Cal.4th 603, 616.) Here, one
of Hoskins’s codefendants was convicted at trial of an attempted
murder in furtherance of the conspiracy. Even if the prosecution
had presented no evidence of any other overt act, the attempted
murder conviction of an alleged coconspirator in furtherance of
the conspiracy is sufficient to show the overt act element has
been satisfied.
Hoskins’s challenge instead focuses on the nature of the
evidence necessary to connect any individual gang member to a
nonspecific, long-running conspiracy of the sort alleged here.
More specifically, he contests the prosecution’s showing
regarding the two mental elements of conspiracy, which are the
elements that establish an alleged conspirator’s participation in,
and liability for, the charged unlawful agreement.
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A.
The mental state elements of conspiracy require the
prosecution to demonstrate the defendant had the specific intent
both to agree to the conspiracy and to commit the object offense.
(People v. Horn (1974) 12 Cal.3d 290, 296; People v. Jurado
(2006) 38 Cal.4th 72, 123.) The two elements are distinct, but
closely related. In some cases, it may be useful to distinguish
between the two elements, especially when evidence of one is
direct and the other is circumstantial. (See, e.g., People v. Marsh
(1962) 58 Cal.2d 732, 742–744 [focusing on intent to commit a
crime where there was clear evidence of intent to agree]; People
v. Beck and Cruz (2019) 8 Cal.5th 548, 629 [focusing on intent
to agree where there was clear evidence of intent to commit a
crime].) But in many cases, proof of the two specific intent
elements will overlap. (See, e.g., Harno, Intent in Criminal
Conspiracy (1941) 89 U.Pa. L.Rev. 624, 631 [“[The two types of
intent necessary for conspiracy] always shade into each other
and often there is no practical purpose served in distinguishing
them”].) Together, these two specific intent elements play a
critical role in a conspiracy prosecution: Proof of these elements
is what separates a coconspirator from a mere bystander to the
crime.
Here, where we consider these elements in the context of
a charged conspiracy stemming from a gang rivalry, the proof
necessary to differentiate a coconspirator from a bystander
takes on particular significance. Decades ago, in Scales v.
United States (1961) 367 U.S. 203, the United States Supreme
Court held that the First Amendment forbids punishing a
person merely for associating with others — even as part of a
group premised on a violent aim. Because the law will not
recognize a rule of guilt by association, we insist on proof of a
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defendant’s knowledge of, and specific intent to further, the
group’s unlawful ends. (Scales, at p. 229; see, e.g., Elfbrandt v.
Russell (1966) 384 U.S. 11, 19 [“A law which applies to
membership without the ‘specific intent’ to further the illegal
aims of the organization . . . rests on the doctrine of ‘guilt by
association[,]’ which has no place here”]; Holder v.
Humanitarian Law Project (2010) 561 U.S. 1, 18 [noting that
“mere membership” in, or association with, an organization that
advocates terrorism cannot itself be criminalized].)
This basic principle is reflected in California’s extensive
statutory regime targeting gang activity, as well as in judicial
decisions interpreting and applying that law. (Pen. Code,
§ 186.20 et seq.; see, e.g., People v. Renteria (2022) 13 Cal.5th
951 (Renteria).) California statutes impose substantial criminal
penalties — ranging from additional terms of years to
indeterminate life terms of imprisonment — on gang members
who commit crimes in concert with other members, or for the
benefit of the gang, with the specific intent to promote, further,
or assist criminal activity. (Pen. Code, § 182.5 [offense of gang
conspiracy]; id., § 186.22, subds. (a) [offense of active gang
participation], (b)(1) [sentence enhancements for gang-related
felonies], (b)(4) [alternative penalties for certain gang-related
felonies].) In enacting the law, the Legislature deliberately
“sought to avoid punishing mere gang membership.” (People v.
Rodriguez (2012) 55 Cal.4th 1125, 1134 (Rodriguez).) Thus,
under the gang statutes, “[m]ere active and knowing
participation in a criminal street gang is not a crime.” (Id. at
p. 1130; see People v. Mesa (2012) 54 Cal.4th 191, 196; People v.
Albillar (2010) 51 Cal.4th 47, 57–58; People v. Castenada (2000)
23 Cal.4th 743, 747–752; People v. Loeun (1997) 17 Cal.4th 1,
11.) For all the same reasons, in a traditional conspiracy
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prosecution broadly targeting gang rivalry, our review of the
evidence must take care to distinguish between mere evidence
of gang membership, on the one hand, and participation in the
charged conspiracy, on the other.
Caution is likewise warranted because of the unusual
nature of the charged conspiracy in this case. The type and
volume of evidence necessary to establish the existence of a
broad, nonspecific gang-related conspiracy of the sort alleged
here poses challenges to a factfinder attempting to distinguish
the guilt of one defendant from that of another. In any
conspiracy prosecution, “the accused often is confronted with a
hodgepodge of acts and statements by others which he may
never have authorized or intended or even known about, but
which help to persuade the jury of [the] existence of the
conspiracy itself.” (Krulewitch v. United States (1949) 336 U.S.
440, 453 (conc. opn. of Jackson, J.).) This feature of conspiracy
prosecutions raises particular concerns in the context of a
prosecution involving a “single massive conspiracy . . . . [¶] . . .
The risk is that a jury will be so overwhelmed with evidence of
wrongdoing . . . that it will fail to differentiate among particular
defendants.” (U.S. v. Evans (10th Cir. 1992) 970 F.2d 663, 674.)
The risk of confusion makes it particularly critical for courts to
carefully distinguish between evidence of mere membership in
a gang embroiled in a violent rivalry and evidence sufficient to
support a conviction for conspiracy to commit murder.
Several well-established principles of conspiracy law
guide us in this task. To establish the requisite specific intent
connecting an individual defendant to the charged conspiracy,
the prosecution must show that the defendant intended to play
some part in achieving the conspirator’s unlawful ends. Put
differently, “[t]here must be something more than ‘[m]ere
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Opinion of the Court by Kruger, J.
knowledge, approval of or acquiescence in the object or the
purpose of the conspiracy.’ ” (U.S. v. Cianchetti (2d Cir. 1963)
315 F.2d 584, 588, quoting Cleaver v. U.S. (10th Cir. 1956) 238
F.2d 766, 771; see Michael R. v. Jeffrey B. (1984) 158 Cal.App.3d
1059, 1069; see also Direct Sales Co. v. U.S. (1943) 319 U.S. 703,
711 [knowledge of a conspiracy is necessary, but not sufficient,
to show that a person “intends to further, promote and cooperate
in it”].) A cheerleader, no matter how enthusiastic, is not a
coconspirator unless the prosecution can prove the cheering was
intended to play some role in achieving the object offense.
Likewise, a member of a group may receive some benefit from
others’ misdeeds, but without more, a mere beneficiary is not a
coconspirator. Unlike a Penal Code section 182.5 gang
conspiracy charge, in which knowingly benefiting from the
conspiracy is a basis for liability, a Penal Code section 182
traditional conspiracy requires the prosecution to demonstrate
that the individual defendant intended to play a role in the
object offense, not merely profit from it after the fact. (See
Johnson, supra, 57 Cal.4th at p. 262.)
While it may be useful to show the precise role the
defendant intended to play in achieving the object of the
conspiracy, the prosecution is not required to establish precisely
how the defendant intended to achieve the ends of the
conspiracy or that the defendant’s chosen means were effective
in achieving those ends. Nor, certainly, must the prosecution
establish the intent to participate in every act necessary to
complete the object offense. (See Salinas v. United States (1997)
522 U.S. 52, 63 [“A conspiracy may exist even if a conspirator
does not agree to commit or facilitate each and every part of the
substantive offense”].) But ultimately, to connect any individual
to the charged conspiracy, the prosecution must at least
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Opinion of the Court by Kruger, J.
establish that the individual specifically intended to agree to
commit the criminal offense and to play at least some role in
achieving it. (See id. at pp. 63–64.)
B.
With these settled principles in mind, we turn to Hoskins’s
evidentiary challenge for his murder conspiracy conviction.
Although murder liability is divided into different degrees and
can rest on different theories (see Pen. Code, §§ 187, 189),
conspiracy to commit murder can only take a single form: It
“requires a finding of unlawful intent to kill, i.e., express malice”
(People v. Cortez (1998) 18 Cal.4th 1223, 1228) and “is
necessarily conspiracy to commit premeditated and deliberated
first degree murder” (id. at p. 1237). The question before us,
then, is whether sufficient evidence supports the finding that
Hoskins had the specific intent to agree to kill and the specific
intent to commit killings, whether personally or by playing a
role in killings carried out by others.
To answer the question, we must “ ‘review the entire
record in the light most favorable to the judgment,’ ” and then
determine whether it contains “ ‘evidence that is reasonable,
credible, and of solid value’ ” such that a reasonable jury could
have found the defendant guilty beyond a reasonable doubt.
(Renteria, supra, 13 Cal.5th at p. 970; see Jackson v. Virginia
(1979) 443 U.S. 307, 319; People v. Johnson (1980) 26 Cal.3d
557, 578.) As we have recently explained, “sufficiency
determinations necessarily take account of the ‘standard of
proof that applied before the trial court.’ ” (Renteria, at p. 970,
quoting Conservatorship of O.B. (2020) 9 Cal.5th 989, 1008.)
“[T]hat is why in criminal cases we must ensure the record
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Opinion of the Court by Kruger, J.
demonstrates substantial evidence to establish guilt beyond a
reasonable doubt.” (Renteria, at p. 970.)
We must “ ‘presume in support of the judgment the
existence of every fact the jury could reasonably have deduced
from the evidence . . . “for it is the exclusive province of the trial
judge or jury to determine the credibility of a witness and the
truth or falsity of the facts upon which a determination
depends.” ’ ” (People v. Manibusan (2013) 58 Cal.4th 40, 87,
quoting People v. Zamudio (2008) 43 Cal.4th 327, 357, citation
omitted.) But we cannot, however, venture beyond the evidence
presented at trial, and may consider only those inferences that
are reasonably supported by the record. “ ‘[A] reasonable
inference . . . “may not be based on suspicion alone, or on
imagination, speculation, supposition, surmise, conjecture, or
guess work.” ’ ” (People v. Davis (2013) 57 Cal.4th 353, 360,
quoting People v. Morris (1988) 46 Cal.3d 1, 21.) It “must
logically flow from other facts established in the action,” and it
cannot be “based entirely on the suspicions of the officers
involved in the case and the conjecture of the prosecution.”
(People v. Austin (1994) 23 Cal.App.4th 1596, 1604.)
Here, the evidence showed that Hoskins (1) was an active
member of the 5/9 Brim gang; (2) had access to guns at some
point during the charged conspiracy; (3) tried to help Hurst after
Hurst’s arrest for the August 27, 2013, Byreese Taylor shooting;
and (4) knew of and voiced his support on social media for
violence against rival gang members. Considering the evidence
as a whole, we conclude that no reasonable jury could have
found beyond a reasonable doubt that Hoskins had the requisite
intent to participate in a conspiracy to commit murder. Though
we discuss each category of evidence in turn, we stress that our
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conclusion is based on our assessment of the evidence in its
entirety.
We begin with the evidence of Hoskins’s ties to the 5/9
Brim gang and alleged participants in the charged conspiracy.
The evidence showed that Hoskins was a member of the
Southside Brim Gang Facebook group, friends on Facebook with
Brim gang members, and regularly communicated with Brim
members and affiliates. Hoskins consistently affirmed his
affiliation with the 5/9 Brim gang and professed his support for
the gang online, and the jury saw numerous photos of Hoskins
displaying Brim gang signs and associating with fellow Brim
members, including alleged coconspirators, as well as posts
describing his life in a gang. The evidence amply supports the
allegation that Hoskins was an active Brim member during the
alleged conspiracy, and Hoskins does not dispute this allegation.
It is, however, a separate question whether Hoskins was a
member of the charged conspiracy.
“[C]ommon gang membership may be part of
circumstantial evidence supporting the inference of a
conspiracy.” (People v. Superior Court (Quinteros) (1993) 13
Cal.App.4th 12, 20; see People v. Frausto (1982) 135 Cal.App.3d
129, 140–141 [describing instances where proof of gang
membership tended to demonstrate motive for a crime or
participation in a conspiracy]; U.S. v. Garcia (9th Cir. 1998) 151
F.3d 1243, 1247 [“[W]hen evidence establishes that a particular
gang has a specific illegal objective . . . evidence of gang
membership may help to link gang members to that objective”].)
But proof of common membership alone is not sufficient to
establish participation in a criminal conspiracy. (See Rodriguez,
supra, 55 Cal.4th at p. 1134.) The effect of such a rule would be
to criminalize mere association with gang members, which the
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law forbids. (See ibid.; Quinteros, at p. 20 [“[M]ere association
does not prove a criminal conspiracy”]; cf. U.S. v. Herrera-
Gonzalez (9th Cir. 2001) 263 F.3d 1092, 1095 [stating that it is
“not a crime to be acquainted with criminals”].)
The Attorney General contends that Hoskins was “not just
a gang member — he was a part of the gang’s subset responsible
for killing rival and perceived rival gang members,” the Hit
Squad. The Attorney General suggests that a reasonable jury
could have inferred that such membership reflects an intent to
join the conspiracy and to commit murder. We are not
persuaded. First, contrary to the Attorney General’s
characterization, the record does not show that the Hit Squad
was a “kill squad” whose “mission was to kill Crips.” The
Attorney General points to trial evidence that many Hit Squad
members committed crimes and that Tiny Hit Squad had more
shooters and “k’s” than Hound Unit. But just because one group
has more shooters and “kills” than another does not establish
that only shooters and killers were allowed in the first group, or
that its very purpose was to kill. One police officer, called to
testify about his investigation into a shooting undertaken by 5/9
Brim members not on trial, did refer in passing to Tiny Hit
Squad as “essentially [an] assassination crew within the 5/9
Brim gang.” But the officer offered no evidentiary support for
that assertion, the Attorney General does not discuss this
evidence on appeal, and the record supplies no support on its
own. Without more evidence about the internal workings of the
Hit Squad or its requirements for membership, evidence that
Hoskins was part of the Hit Squad — like evidence that he was
part of the 5/9 Brim gang in general — shows only that Hoskins
associated with people involved in various violent criminal
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Opinion of the Court by Kruger, J.
activities, and not that he held any specific intent to join them
in those activities.
Second, and relatedly, the Attorney General identifies no
evidence that Hit Squad members needed to follow any specific
set of rules or norms, or have any special qualifications or
undergo any particular initiation rite (such as committing a
particular crime), as a condition of membership. Though
evidence of rules and norms can be relevant in assessing an
individual’s participation in a charged conspiracy (see U.S. v.
Bingham (9th Cir. 2011) 653 F.3d 983, 998 [describing strict
gang rules enforced via formalized hierarchy]; People v. Kopp
(2019) 38 Cal.App.5th 47, 75 [describing gang’s rules about
cooperating with law enforcement]), there was no evidence of
that sort here. The limited evidence on this subject at trial
instead showed that many members of the Hit Squad were
relatives, and suggested that the Hit Squad “subset” was, at
least in part, a generational grouping within the gang. Nor was
there evidence tending to show that the choice to become a 5/9
Brim gang member in general was necessarily also a choice to
participate in a long-running, nonspecific conspiracy to commit
murder. It is undisputed that the 5/9 Brim gang had an active
and violent rivalry with the WCC and NC gangs during the
period of the alleged conspiracy. It is also undisputed that Brim
members, like gang members generally, were expected to
support the goals of the gang, including by backing each other
up in fights. But a “general agreement, implicit or explicit, to
support one another in gang fights does not provide substantial
proof of the specific agreement required for a conviction of
conspiracy to commit assault,” much less conspiracy to commit
murder. (U.S. v. Garcia, supra, 151 F.3d at p. 1244.) Again,
without more specific evidence about the requirements of Hit
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Opinion of the Court by Kruger, J.
Squad or Brim membership, we conclude that no reasonable
jury could have inferred that membership entailed an
agreement by all of its members, including Hoskins, to kill
rivals.
The Attorney General repeatedly describes Hoskins as not
merely a member of the gang, but an “active leader.” Again, the
record does not support this characterization. The only
indication Hoskins had achieved some elevated rank was
evidence that another 5/9 Brim member had adopted Hoskins’s
gang moniker as his own; that member went by “Little Bick
Nick,” a reference to Hoskins’s nickname, “Bick Nick.” This
evidence, however, does not reasonably support an inference of
Hoskins’s leadership or “high-level” status within the Brims.
Indeed, the prosecution’s gang expert testified only that this
indicated Hoskins was “working towards” a more senior position
in the gang — not that he had necessarily achieved it. And even
setting aside the minimal evidence regarding Hoskins’s
purportedly elevated status, it is unclear what significance the
jury reasonably could ascribe to such status. The prosecution’s
gang expert testified that gang members must carry out
“missions” to gain respect — and presumably to advance in the
group — but the testimony appeared to be based on an
impression of gangs generally, rather than the specific practice
of the 5/9 Brims. In any event, the evidence did not show what
sort of mission would be necessary to achieve whatever status
Hoskins might have obtained within the gang. To the extent the
prosecution might have sought to rely on an inference that a
leader or person with elevated status must have been involved
in gang decisionmaking, including the critical decision to
murder unspecified members of rival gangs over an extended
period of time, that inference is likewise unsupported by the
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Opinion of the Court by Kruger, J.
evidence. The prosecution’s gang expert testified that the 5/9
Brims did not have a fixed internal hierarchy, but rather only a
“loose” structure. Even if Hoskins were considered a “high-
level” member of the gang or enjoyed some type of elevated
status, the record shed little light on what decisionmaking
responsibilities might accompany that status — much less on
the critical question of whether a “high-level” member was
expected to join in any tacit agreement to kill rivals.
The next category of evidence relates to Hoskins’s access
and proximity to guns during the period of the alleged
conspiracy. The Attorney General highlights two pieces of
evidence: Hoskins’s February 2012 arrest with a gun concealed
in a sock tucked into his pants, and his August 2012 encounter
with police when a loaded revolver was found nearby. As
Hoskins points out, neither gun was ever linked to any shooting.
Nor was there any indication that Hoskins intended to use
either weapon at the time he was arrested — let alone that he
even knew about the revolver found after his August 2012
encounter with police. Nonetheless, the Attorney General
argues that this evidence indicates Hoskins was “ready and able
to kill”: that he “either was, or could easily be armed, if the
opportunity to shoot rival Crip gang members arose.” The
evidence does not reasonably support such an inference.
Though it may be reasonable to infer that Hoskins “could easily
be armed” if the opportunity arose, it is not reasonable to infer
that Hoskins therefore intended to commit first degree murder.
Individuals — gang members included — frequently possess
guns without harboring any intent to use the guns to commit
premeditated, deliberate killings. Again, nothing in the record
links Hoskins’s possession or proximity to the guns described
above to any shootings or any broader criminal design to murder
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Opinion of the Court by Kruger, J.
rivals. Without more, no reasonable jury could find that such
evidence proved, beyond a reasonable doubt, that Hoskins
intended to agree to participate in a conspiracy to murder rival
gang members.
We turn, then, to the evidence concerning the August 27,
2013, shooting of Byreese Taylor. The Attorney General argues
this evidence offers a concrete demonstration of Hoskins’s intent
to play a part in the shooting of perceived rivals. But here again,
the record does not support this conclusion: The prosecution
presented no substantial evidence from which a reasonable jury
could find that Hoskins intended to play any part in the shooting
of Byreese Taylor.
There was no substantial evidence that Hoskins was a
direct participant in the shooting. The evidence showed only
that Hoskins and Hurst — who was arrested for and convicted
of the Taylor shooting — were longtime friends, and that
Hoskins had been in the passenger seat of Hurst’s vehicle at
some unspecified point in the past. The Court of Appeal in this
case reasoned, and the Attorney General now argues, that a jury
could have reasonably inferred Hoskins’s specific intent based
on a photograph, taken on the morning of the shooting and
posted later that day, showing Hoskins and another 5/9 Brim
member standing in WCC territory and making gang signs.
(Ware, supra, 52 Cal.App.5th at p. 942.) The Court of Appeal
considered it reasonable to infer from the photograph that
Hoskins “knew of the shooting set to occur that evening.” (Ibid.)
The Attorney General, for his part, argues the photograph is
probative of Hoskins’s intent because it was meant to lure
victims for the upcoming shooting. As the Attorney General
interprets the photograph, Hoskins and his alleged
coconspirator were trying to show that they were “not afraid to
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Opinion of the Court by Kruger, J.
go into their rival gang members’ territory” and “call[] out to
rival Crips to come defend their territory and give the Hit Squad
members an opportunity to shoot them.”
The photograph in question could not reasonably have
supported such an inference. It was taken seven hours before
the shooting and in a location more than a mile away. Nothing
about the photograph tends to establish that Hoskins or his
alleged coconspirator was aware of the shooting in advance.
And the Attorney General’s argument about the probative value
of the photograph is highly speculative, requiring a number of
inferential leaps — starting from the gang expert’s
acknowledgement that “disrespect often require[s] retaliation”
to an alleged plot to lure rivals, using social media, to a place
where they would be murdered — to reach the conclusion that
the photograph was part of a conspiracy to murder rivals by
leading them into an ambush. The prosecution’s gang expert
did not testify, based on his experience and expertise, that a
photograph of this sort might play the role of bait. As a result,
the jury would have had no substantial basis to conclude the
photograph was intended to lure rival gang members to a
location where they would be killed.
Even if the prosecution had shown that posting the
photograph constituted more than mere posturing, and was
instead calculated to provoke a prompt in-person response, the
prosecution also failed to introduce evidence sufficient to
demonstrate beyond a reasonable doubt that the photograph
was intended to lead to a deadly ambush, as opposed to any
other form of confrontation. Nor does the theory seem plausible
in light of the evidence of how the Taylor shooting in fact
occurred. The evidence shows that on August 27, 2013, 5/9 Brim
members were not waiting to ambush rival gang members after
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Opinion of the Court by Kruger, J.
luring them to a location where they would be murdered.
Instead, Hurst and others drove into a different part of rival
territory searching for someone to shoot, and when no one
clearly announced themselves as a rival (let alone sought to
defend their territory), they accidentally shot a nonrival. The
fact that no rival gang member was actually lured into a fight to
defend the gang’s territory on August 27 tends to undermine the
Attorney General’s argument that any such inference could
reasonably be drawn from the photograph. And indeed, despite
the considerable volume of evidence introduced at trial about
the activities of Brim members over the two-year period of the
charged conspiracy, the prosecution identifies no other instance
where Brims employed such a strategy.
The evidence of Hoskins’s role after the August 27
shooting does not alter this conclusion. While Hoskins engaged
in extensive online conversations with others about the shooting
and Hurst’s arrest, none of those conversations indicated
Hoskins knew of the shooting before it happened or played any
role in the actual event. To be sure, the evidence showed that
Hoskins collaborated with Hurst’s girlfriend to pressure Taylor
not to testify against Hurst, and his messages to Taylor were
full of implicit threats. But as a whole, the conversation
demonstrates only that Hoskins was worried about his
childhood friend and was planning to share paperwork
suggesting that Taylor was “snitching.” The prosecution never
presented evidence that Hoskins or Hurst’s girlfriend entered
into an agreement to kill Taylor. The Attorney General suggests
that the alleged witness intimidation is relevant because it
“showed that Hoskins was trying to get his coconspirator Hurst
out of custody and back on the streets where he could continue
his role in the ongoing conspiracy.” It would be reasonable for
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Opinion of the Court by Kruger, J.
the jury to infer the truth of the first part of that sentence: that
Hoskins was trying to help his childhood friend leave custody.
But the inference that Hoskins’s efforts were in furtherance of a
conspiracy to commit murder rests on mere speculation. There
is no evidence that Hoskins so much as discussed his efforts with
other gang members. And certainly nothing in Hoskins’s
conversations concerning the shooting suggested the goal was to
return Hurst to the streets specifically so he could murder rival
gang members.
We now turn to the final category of evidence presented
against Hoskins: his social media posts. The posts offer ample
evidence that Hoskins knew and approved of the alleged
conspiracy’s goals. For example, in February 2013, Hoskins
posted a photograph of himself making the “Crip killer” hand
sign with the caption: “Spell it BicK NicK tell he really Bout his
cK’s.” In January 2014, he posted: “Never BacK Down is the
MuthafucKin motto!” And in May 2014, he posted: “Ganstas
don’t flicK it with gigs they use em.” There was also evidence
that Hoskins knew of and celebrated some shootings soon after
they happened. For example, in April 2012, Hoskins posted:
“Son was Born healthy. cKrossys got Hit, all I need is some Dro
and my day is set lol #HappyEaster!” At trial, the prosecution’s
gang expert reasonably suggested that this post referred to a
shooting, committed by 5/9 Brim members, of a rival Crips
member — the “cKrossy[]” — several days earlier. In another
instance, Hoskins taunted a rival gang after one of their own
was shot, writing in March 2014: “That’s some gay sHit not
Gansta yall getBacK taggin in the set? That’s all yo DeadHomie
worth? That’s why I kall yall cKraBs.”
The Attorney General argues that Hoskins intended to
encourage the war by “glorifying and endorsing” the violence on
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Opinion of the Court by Kruger, J.
social media. The posts do demonstrate that Hoskins approved
of the violence, and perhaps even perceived some reputational
benefit to himself from the gang’s success in its ongoing conflict
with rivals. But as we have noted, absent proof of intent to play
some role in achieving the conspiracy’s unlawful goals, neither
being a cheerleader nor passively accepting the benefits of
others’ unlawful activities constitutes participation in a
conspiracy. And the Attorney General fails to point to evidence
showing that Hoskins intended the posts to facilitate murder.
There is no evidence in any of Hoskins’s posts of a plan to
participate in any of the shootings that constituted the object of
the conspiracy, nor is there evidence that such posts were
directed to any alleged coconspirators (or that, as a whole, his
Facebook posts were consistently viewable by those outside of
his Facebook friend network).
The prosecution had asserted at trial that Hoskins’s social
media posts were particularly probative of his intent to
participate in the conspiracy because Hoskins’s posts
celebrating gang violence provided a revealing “window” into his
mind. As we consider the evidence on appeal, however, some
caution is in order. Social media is not a bedside diary; it is a
platform for expression aimed at a particular audience. (See,
e.g., Packingham v. North Carolina (2017) 582 U.S. __ [137 S.Ct.
1730, 1737] [“Social media allows users to gain access to
information and communicate with one another about it on any
subject that might come to mind”].) Like any other form of
public expression, social media posting may include an element
of performance. (Ibid. [analogizing social media websites to the
“modern public square,” capable of “allow[ing] a person with an
Internet connection to ‘become a town crier with a voice that
resonates farther than it could from any soapbox’ ”].) At the
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Opinion of the Court by Kruger, J.
same time, social media statements, like any other statement,
may reflect the speaker’s state of mind, depending on their
content and context. Whether a statement actually reflects the
speaker’s views or simply involves an element of performance or
bravado are, of course, questions of fact for a jury to decide.
Here, in any event, the question is not simply whether
Hoskins approved of the violence of others, but whether his
statements, taken with the other evidence as a whole, were
sufficient to show he intended to conspire with others to commit
murder. On this score, the evidence falls short. Indeed, as the
prosecution’s own gang expert acknowledged, there could be 5/9
Brim members who “strictly” display “Ck” or post about “Crip
killing” on social media without ever actually killing Crips.
Hoskins’s general celebration of gang violence on social media —
with no evidence that he ever intended to play a role in
committing any act of violence — is not enough to establish his
participation in a conspiracy to commit murder.
In sum, after considering the record in its entirety, we
conclude that the evidence presented at trial is insufficient to
show that Hoskins had the requisite intent to participate in a
conspiracy to kill rival gang members. The evidence showed
that Hoskins was an active member of a gang whose other
members committed acts of violence, that he celebrated those
acts of violence, and that he had access to weapons that he could
use in furtherance of those acts, if he so chose. The evidence
unquestionably establishes Hoskins’s membership in a group
with violent aims and his association with individuals who
commit violent crimes. But it is not sufficient to support a
finding that Hoskins specifically intended to enter an agreement
to commit murder, or that he specifically intended to commit
murder, either personally or through others.
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Opinion of the Court by Kruger, J.
In reaching a contrary conclusion, the Court of Appeal
relied in the last instance on the fact that “the jury necessarily
found the evidence of interdependence among the participants
in the crimes to be persuasive, having found true all of the gang
enhancements against all appellants.” (Ware, supra, 52
Cal.App.5th at p. 942.) We draw a different lesson. If anything,
the likelihood the jury relied on evidence of interdependence
between members of the 5/9 Brim gang underscores the risks of
confusing gang membership with participation in a conspiracy
to commit murder in a long-running, large-scale, nonspecific
conspiracy like the one charged here. If the prosecution had
charged Hoskins with conspiracy to commit murder in
connection with any particular incident allegedly part of this
conspiracy, no reasonable jury could have found Hoskins guilty
based on the evidence presented at trial. At most, the
prosecution would be able to rely on his membership in the gang,
association with violent members, general glorification of
violence on social media, and isolated behavior that had a
speculative link to any particular incident. But because the
prosecution had alleged that Hoskins was part of a much
broader conspiracy, it was permitted to introduce evidence
connecting a number of disparate events across multiple years
and tying Hoskins to two alleged coconspirators, both of whom
were much more strongly implicated in particular acts of
violence linked to the conspiracy. (See id. at pp. 940–941.) The
risk of jury confusion makes it all the more vital for courts to
carefully distinguish between evidence of mere membership in
a gang embroiled in a violent rivalry, on the one hand, and
evidence sufficient to support a conviction for conspiracy to
commit murder, on the other.
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Opinion of the Court by Kruger, J.
III.
We reverse the judgment of the Court of Appeal and
remand for further proceedings consistent with this opinion.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
GROBAN, J.
JENKINS, J.
GUERRERO, J.
33
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Ware
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 52 Cal.App.5th 919Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S263923
Date Filed: December 1, 2022
__________________________________________________________
Court: Superior
County: San Diego
Judge: Leo Valentine, Jr.
__________________________________________________________
Counsel:
Nancy Olsen, under appointment by the Supreme Court, for Defendant
and Appellant Nicholas Hoskins.
Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler
and Lance E. Winters, Chief Assistant Attorneys General, Julie L.
Garland, Assistant Attorney General, A. Natasha Cortina, Steve
Oetting and Christine L. Bergman, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Nancy Olsen
Attorney at Law
P.O. Box 231153
Encinitas, CA 92023-1153
(760) 753-5206
Christine L. Bergman
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9159