People v. Garcia

Filed 3/6/17
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B266889
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA417564)
v.
ENOC M. GARCIA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Dennis J. Landin, Judge. Affirmed in part,
reversed in part, and remanded.
Patricia S. Lai, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Victoria B. Wilson, Supervising
Deputy Attorney General, Theresa A. Patterson, Deputy Attorney
General, for Plaintiff and Respondent.

Pursuant to California Rules of Court, rules 8.1105(b) and
8.1110, this opinion is certified for publication with the exception
of Parts II.C and II.D.
A jury convicted defendant and appellant Enoc Garcia
(defendant) on two counts of assault with a firearm. The jury
found defendant committed both offenses “for the benefit of, at
the direction of, or in association with a[ ] criminal street gang,
with a specific intent to promote, further, or assist in criminal
conduct by gang members.” (Pen. Code,1 § 186.22, subd. (b).) The
sole contested issue we are asked to decide is whether the jury’s
gang enhancement true finding is supported by sufficient
evidence, and the answer to that question turns, in part, on
whether there was substantial evidence the Black P-Stones gang
in Los Angeles comprises two gang subsets: the City Stones (or
“Bittys”) and the Jungle Boys (or “Jungles”).
I. BACKGROUND
A. The Offense Conduct
Throughout the day on September 20, 2013, sisters
Traynisha Foster (Foster) and Cristal Velez (Velez) were involved
in a series of four fights with Myailah Hopson (Hopson). All
three women lived in the same apartment building on the corner
of West Adams Boulevard and Montclair Street in Los Angeles.
Hopson’s boyfriend Shawn Jones (Jones), who was later identified
at trial as a Black P-Stones gang member, also participated in
each of the fights. Defendant, who was also identified at trial as
a Black P-Stones gang member, was present and armed during
the final fight, and he fired multiple gunshots, which hit two
bystanders (the conduct that serves as the basis for both assault
with a firearm convictions).
1
Undesignated statutory references that follow are to the
Penal Code.
2
The first fight started around 10:00 or 11:00 a.m.
According to Foster, “[Hopson] was already with gang members
from BPS [i.e., Black P-Stones]” outside the apartment building,
and she (Hopson) called Velez a bitch. That triggered the
fighting, with Hopson and Velez pulling each other’s hair and
punching each other. While the fight was underway, Hopson’s
boyfriend Jones joined in and punched Velez, pulled her hair, and
put his fingers in her eyes. Foster unsuccessfully attempted to
pull Jones off Velez, and the fight ended when Velez stopped
fighting and walked away. Foster and Velez went back to their
apartment and Velez called her boyfriend, Jermaine King (King),
and asked him to come to the apartment building to pick her up.
Before King arrived, and roughly 10-30 minutes after the
first fight ended, Velez and Foster left their apartment and again
encountered Hopson, this time outside a nearby 99-cent store on
Adams Boulevard. A second fight erupted, involving sisters Velez
and Foster on one side and Hopson, Jones, and an individual
Velez described as “some other girl from BPS” on the other. The
fight ended when Jones pushed Velez into the street and another
unidentified man stopped Jones from kicking her. But minutes
later, a third fight broke out in the same general area, with
Hopson and Foster trading blows. Jones again participated in
the fighting, punching Foster in her back and throwing her across
the ground.
During the fighting up to this point, Foster heard Jones
and Hopson making what she believed to be various gang-related
references. Jones was “stating his gang name, like, ‘BPS,’” and
saying “Blood” more than once; Foster also heard Hopson saying
3
“Blood.”2 Foster specifically recalled Jones saying “Fuck her up,
Blood,” and she also recalled Jones and Hopson stating “they
were going to call people,” which scared Foster.
Beginning at approximately 1:00 p.m., Jones made calls to
defendant and the two also exchanged several text messages.3
The first call was made at 1:03 p.m., and a minute later,
defendant received another call from Jones, which lasted two
minutes and twenty-two seconds. A later text message from
Jones to defendant stated: “Come. It’s Brackin, FRFR.”
Defendant replied, “Ima catchin the bus, Berious O!” Then, at
1:34 p.m., Jones sent two text messages to defendant, the first of
which stated, “Okay. Shawn need to go to the ER,” and the
second that said, “WYA P-Stone.” Four minutes later, defendant
texted messages to Jones stating “I will” and “Be there 5
minutes.” At 1:54 p.m., defendant received a message from Jones
stating “Call when you on Adams.” One of Foster’s friends in the
apartment building later saw Jones and a person she recognized
as defendant walking toward Hopson’s apartment.
Velez was outside the apartment building when King, her
boyfriend, arrived in response to her earlier request that he come
2
As the prosecution’s gang expert would later testify at trial,
the Black P-Stones gang is known as a “Blood” gang and its
members often wear red clothing and refer to each other as
“Blood.”
3
The evidence of the calls and text messages was obtained
by forensic investigation of a cell phone recovered during the
police investigation of the charged crimes. Based on that
investigation, investigators formed the belief that the cell phone
belonged to defendant and Jones was designated by the name
“Uno” in the phone.
4
pick her up. Velez walked back toward her apartment to get
some clothes and encountered Hopson, who was standing in front
of the window to her own apartment. At that point, Hopson and
Velez again began fighting—the fourth fight that day. While the
fight was in progress, Velez heard Hopson yell something to the
effect of “bring that thing out that bag” to Jones, who was looking
out of Hopson’s apartment window. Velez also heard Jones make
a similar “get that thing out that bag” statement, apparently to
someone else she could not see.
As the two women continued to fight, Velez saw Jones
exiting the apartment building gate toward where she was
fighting with Hopson. Defendant, wearing a tank top, was
walking behind Jones. Meanwhile, King (Velez’s boyfriend) was
running from where his car was parked toward where Hopson
and Velez were fighting. Jones intervened in the fight by
grabbing Velez, and King punched Jones, knocking him to the
ground. Defendant then pulled out a gun and fired multiple
shots in King’s direction. King was hit by a bullet in his back,
which exited through his chest (he survived), and two nearby
bystanders were also hit: Erik Ross (in the back of one of his
knees) and Kamila George (grazing her ankle). One of Foster’s
friends who lived in the apartment building heard the gunshots
and called the police at 2:21 p.m. to report the shooting.
B. Defendant’s Arrest and His Post-Arrest Call to Jones
Defendant was arrested about a month after the shooting
and he made a telephone call to Jones from jail. During the
phone call, Jones asked defendant what he was charged with,
and defendant told him it was attempted murder. Throughout
the conversation, defendant and Jones repeatedly referred to
5
each other as “Blood.” At one point, Jones told defendant, “I
had—I could have did it by myself, Blood.” Defendant replied,
“No, Blood. Be quiet, Blood. Be quiet.” After a third man joined
the phone call, defendant said: “[T]hey have pictures from the
camera, Blood. That nigga came to my car . . . . Hey, (Inaudible)
P Stone, nigga—nigga will think it out though.” Jones
responded, “On Blood. I play my part—I should have never
called you . . . .” Defendant replied, “Hey, Blood. Be quiet, Blood.
Be quiet. They record this shit.”
C. Gang Expert Testimony at Trial
Both the prosecution and the defense presented gang
expert testimony at trial. Los Angeles Police Department Officer
Carlos Guerrero, who was then assigned to the gang enforcement
detail for the Department’s Southwest Division, testified as the
prosecution’s gang expert. The defense’s gang expert was Alex
Alonso, a Chicano and Latino studies professor at California
State University at Long Beach who researched street gangs and
created a website featuring various articles on street gangs.
1. Officer Guerrero’s testimony
Officer Guerrero began his testimony by summarizing the
sources of his knowledge and expertise concerning the Black P-
Stones, or “BPS.” He explained his duties in the Southwest
Division included documenting, investigating, and suppressing
the Black P-Stones, including what he described as two of the
gang’s “subsets,” the Bittys and the Jungles. For seven years,
Officer Guerrero had patrolled Baldwin Hills Village, which he
described as an area where the Black P-Stones gang
predominantly has a stronghold. He had a multitude of
6
consensual contacts with Black P-Stones gang members to gather
intelligence about the gang and gain awareness of “what’s going
on in the neighborhood,” including whether there were any
existing or developing rivalries or feuds with other gangs. He
had also worked on search warrants and arrests involving Black
P-Stones gang members, consulted with other law enforcement
officers concerning specific problems related to the Black P-
Stones, and testified as an expert about the Black P-Stones on
three prior occasions.
Significantly for purposes of this appeal, Officer Guerrero
also detailed the historical development of the Black P-Stones
gang. He explained Eugene “The Bull” Hairston and Jeff “The
Prince” Fort founded the Black P-Stones gang in Chicago in the
late 1950s. In 1969, the gang granted others in Los Angeles
permission to start a “chapter” of the gang, which was known as
the City Stones (and later known as the “Bittys” when the gang
members substituted a “B” for the “C” in “City” because of dislike
of the letter “C” associated with Crip gangs). Once the gang was
up and running in Los Angeles, the members realized they
“needed reinforcements in larger numbers” and one of the
founders of the Los Angeles chapter recruited the Jungle Boys.
According to Officer Guerrero, “[t]hose guys joined the Bittys”
and the gang continued to grow over time.
On the most recent occasion when Officer Guerrero checked
a law enforcement gang database covering Los Angeles County,
the database catalogued over 1,100 documented Black P-Stones
gang members, with over 800 members being part of the “Jungle
set” and over 300 “within the Bitty[s] set.” Guerrero identified
the boundaries of territory claimed by the Black P-Stones and
explained the Jungles and Bittys subsets controlled different
7
parts of that territory—the Bittys’ turf being the northern part of
Black P-Stones territory and the Jungles’ turf being the southern
part. When specifically asked to describe the relationship
between “a Jungles P-Stone member versus [a] Bitty[s] P-Stone
member,” Officer Guerrero explained: “They are the same—same
family, criminal organization. They are Black P-Stones. When
they do a crime, they do it together, a Bitty or a Jungle, for the
same purpose.” Officer Guerrero was also asked whether the
Bittys and the Jungles were “two separate individual gangs” in
light of the separate geographical regions they controlled; he
answered, “They are part of one—they are part of one gang, the
Black P-Stones.” He further explained the two subsets had “safe
passage” or a “free pass” to enter the territory controlled by the
other “because they are from Black P-Stones.”
Based on his training and experience, and from speaking to
other officers, Officer Guerrero opined the Black P-Stones’
primary activities were “ADW shootings,” assaults with deadly
weapons, robberies, narcotics sales, pimping and prostitution,
homicides, witness intimidation, and assaults on police officers.
The prosecution introduced two certified court records during
Officer Guerrero’s testimony to establish the predicate pattern of
gang crimes that must be proven for the criminal street gang
enhancement alleged against defendant to be found true. The
first record revealed Brandon Lamar Jones was convicted of
attempted murder and robbery for conduct occurring in December
2008. From speaking to the arresting officers and detectives who
investigated those crimes, Officer Guerrero knew Brandon Lamar
Jones was a documented, self-admitted Black P-Stones member
from the Jungles subset. The second certified court record
revealed Marquis Jewel Turley was convicted of attempted
8
murder for conduct occurring in January 2011. Officer Guerrero
was personally involved in Turley’s arrest and knew him to be a
self-admitted Black P-Stones member from the Bittys subset.
When asked about identifiers that signal membership in
the Black P-Stones gang, Officer Guerrero described clothing,
tattoos, hand gestures, graffiti, and language associated with the
gang. Black P-Stones members often wear red clothing and other
attire associated with sports teams using red in their uniform
colors, including the Anaheim Angels. Guerrero explained,
however, that Black P-Stones members would also wear Toronto
Blue Jays attire, despite the blue color associated with Crip
gangs, “because they have a saying, ‘from Bitty[s] to the J’s.’ It’s
Bitty[s] all the way to the Jungles. The Toronto Blue Jay bird,
not the color blue, but the letter ‘J.’” As for tattoos, common
among Black P-Stones gang members were tattoos of the letters
“BPS,” the number “5,” the Roman numeral “X,” a pyramid with
bricks, and others.
Turning to the particulars of this case, Officer Guerrero
opined defendant and Jones (Hopson’s boyfriend) were both
members of the Black P-Stones gang. Officer Guerrero had
previously encountered defendant personally, and knew him to be
a self-admitted Black P-Stones member. Guerrero’s opinion that
defendant was a Black P-Stones member was also partly based
on his tattoos: defendant had “BPS” tattooed on his stomach,
“NRK” on his back, a red number “5” on his right arm, and a red
“X” on his left arm. As to the NRK tattoo, Officer Guerrero
explained it was an abbreviation for “No Respect Krew,” which
was a further sub-clique of the Jungles subset of the Black P-
Stones gang. As to Jones, Officer Guerrero formed the opinion
that he was a Black P-Stones member based on, among other
9
things, his conversations with other officers in the Southwest
Division’s gang unit, performing probation compliance checks,
and “documentation through [police] department resources.” In
addition, as to both men, Officer Guerrero had reviewed a
photograph obtained from defendant’s cell phone that depicted
defendant together with Jones, with defendant wearing a Toronto
Blue Jays hat, and Jones wearing an Anaheim Angels hat while
making a hand signal disrespecting a rival gang.4
As to the charged shooting itself, Officer Guerrero
explained the apartment building where the shooting took place
was located in Black P-Stones territory, specifically in the area
known as the Bittys’ turf. The prosecutor presented a
hypothetical scenario to Officer Guerrero that was intended to
track the facts of the case, asking him to assume, among other
things, that two sisters get into a fight with a female neighbor;
the neighbor’s boyfriend, a Black P-Stones gang member, gets
involved in the fights; the neighbor and her boyfriend “say they
are from BPS and that they are going to get their friends” during
the fights; the boyfriend contacts a second Black P-Stones gang
member via phone calls and text messages; the second gang
member tells his BPS confederate he will “be there in five” and
later arrives; and the second Black P-Stones member pulls a gun
and shoots at a man dating one of the sisters when fighting
breaks out between that man and the neighbor’s Black P-Stones-
member boyfriend. The prosecutor asked Officer Guerrero
whether the crime described in the hypothetical scenario was
4
Another of the photos found on defendant’s cell phone
depicted defendant “throwing the gang sign” that signified
“Jungle Stone Love.”
10
committed for the benefit of, at the direction of, and in
association with a criminal street gang, and Officer Guerrero
opined that it was.
Officer Guerrero explained his opinion was “based on the
fact that you have two documented, self-admitted gang members,
Black P-Stones . . . . In the gang world, respect means
everything. If you’re disrespected in your own territory, you have
to show front. You have to show face. That means when
somebody comes into your neighborhood and your girlfriend is a
Black P-Stone associate or a gang member and she’s getting into
a fight, you’re going to defend that territory and that person just
on the mere fact they are from the neighborhood. They are from
your gang. [¶] . . . [¶] The time of day, broad daylight, what they
are doing is showing no fear toward the community in what’s
going on. [¶] It’s for the benefit and the association of the gang.
You’re going to show your face. You’re going to show you’re not
going to be disrespected.” Officer Guerrero continued: “[T]he
territory of the gang is very important. You don’t want to lose a
street, don’t want to lose a portion or corner. Someone comes into
your neighborhood and [is] assaulting either your friend,
associate from your own gang, you have to show to the gang
you’re active, violent[,] and are going to defend, do whatever you
need to do to take care of business to show your alliance to that
gang.”
The prosecutor additionally asked Officer Guerrero to
explain how gang members usually react when asked by other
members of the gang to commit acts of violence. Officer Guerrero
responded there would be repercussions (including getting kicked
out of the gang, beaten up, or killed) if a gang member were to
refuse a request to commit a crime or do something for the gang.
11
2. Alonso’s testimony
During the defense case, defendant’s attorney asked her
expert, Professor Alonso, whether the “BPS Jungles and BPS
City Stones [i.e., the Bittys]” were “one gang.” Alonso answered,
“The way I look at it is I look at it as two different gangs under a
similar umbrella.” In Professor Alonso’s opinion, there was “an
individuality to where [he]’d call the [Bittys] one gang and the
Jungle Stones a separate gang.” His view of this “individuality”
included his belief that the Jungles and Bittys each had a
different hierarchy, had two different “turfs” in “radically
different types of communities,” and had “some unique rivalries”
with other gangs—even though Professor Alonso conceded both
the Bittys and the Jungles did also share “similar rivalries” with
other Crip gangs.
The defense asked Professor Alonso a series of hypothetical
questions that incorporated the basic facts of the case and
progressively added certain additional elements, for example,
that one of the individuals involved in the fights was a Black P-
Stones gang member. Asked to assume there were two Black P-
Stones gang members present at the time of the shooting (which
took place after a fight that originally began between two “girls”),
Professor Alonso opined the shooting was not done for the benefit
of a criminal street gang. When asked to further assume that,
during one of the fights preceding the shooting, one of the Black
P-Stones gang members had yelled “BPS,” Professor Alonso
testified that his answer to the question of whether the “fight
that involved the shooting” was done for the benefit of the gang
would “depend[ ] on the context of how BPS was stated.” He
asserted there were ways someone could say “BPS” that would
not affect his previously expressed opinion, but he acknowledged
12
the person was “probably” acting on behalf of the gang if “BPS”
was stated in an aggressive manner.
D. Verdicts and Sentencing
The jury found defendant guilty on two counts of assault
with a firearm in violation of section 245, subdivision (a)(2): count
two of the information pertaining to victim Ross and count three
of the information pertaining to victim George. The jury found
true the gang (§ 186.22, subd. (b)(1)(C)) and firearm
enhancements (§ 12022.5, subd. (a)) alleged in connection with
each count. The jury also found true a great bodily injury
enhancement (§ 12022.7, subd. (a)) alleged solely in connection
with the count two assault on victim Ross. The jury was unable
to reach a verdict on count one of the information, which charged
defendant with the willful, deliberate, and premeditated
attempted murder of King. The trial court declared a mistrial on
that count and subsequently dismissed it.
The trial court sentenced defendant to a total of 23 years
and eight months in state prison. On the count two assault with
a firearm conviction, the court imposed an 18-year prison term,
consisting of the upper term of four years for the conviction, plus
a four-year term for the firearm enhancement and a ten-year
term for the gang enhancement. The court imposed but stayed a
three-year prison term for the great bodily injury enhancement
on count two. On the count three assault with a firearm
conviction, the trial court imposed a consecutive one-year term
(one-third of the middle term of three years), plus one-year and
four months for the firearm enhancement and three-years and
four months for the gang enhancement. The trial court awarded
13
defendant 769 days of presentence credit: 669 days of actual
custody credit and 100 days of conduct credit.
II. DISCUSSION
The outcome of this appeal is dictated in large part by two
California Supreme Court cases that discuss what evidence is
necessary to support a jury’s true finding on a gang
enhancement: People v. Prunty (2015) 62 Cal. 4th 59 (Prunty) and
People v. Albillar (2010) 51 Cal. 4th 47 (Albillar). Defendant
contends the prosecution failed to prove Black P-Stones was a
criminal street gang for purposes of section 186.22 because the
evidence indicated the Jungles subset and the Bittys subset were
actually two separate gangs and there was no evidence that
would allow the jury to conclude they were part of “one big gang,”
the Black P-Stones. The argument turns, and fails, on
comparison to Prunty: unlike that case, the evidence here—
particularly, Officer Guerrero’s expert testimony—was sufficient
to establish the associational connection required between the
Black P-Stones and the Bittys and Jungles subsets. Defendant
also maintains there was insufficient evidence he committed the
offenses for the benefit of a criminal street gang. Following
principles articulated in Albillar, we hold there was enough
evidence to prove the crimes were in fact gang related. Evidence
that defendant responded to a request for assistance made by
fellow Black P-Stones member Jones in light of ongoing fighting
in Black P-Stones territory permitted the jury to infer defendant
committed the two firearm assaults in association with the Black
P-Stones.
We therefore affirm defendant’s convictions, but we reverse
the sentence imposed. The Attorney General concedes, and we
14
hold, the 16-month prison term the trial court imposed for the
firearm enhancement alleged in count three of the information
was unauthorized because the court imposed a prison term for
the gang enhancement on that count as well; the relevant Penal
Code statute permits application of only the greater of the two
enhancements. A remand for resentencing is required under the
circumstances, and upon resentencing defendant, the trial court
must also give him the 11 additional days of presentence custody
credit to which he is undisputedly entitled.
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.]”
(Albillar, supra, 51 Cal.4th at pp. 59-60; accord, Prunty, supra, 62
Cal.4th at p. 71 [“We apply a deferential standard of review when
evaluating . . . whether the evidence . . . [is] sufficient to satisfy
the STEP Act’s [criminal street gang] definition”].) “This
standard applies whether direct or circumstantial evidence is
involved.” (People v. Mendez (2010) 188 Cal. App. 4th 47, 56; see
also People v. Gonzales and Soliz (2011) 52 Cal. 4th 254, 294.)
15
B. Sufficient Evidence Supports the Jury’s Gang
Enhancement True Findings
Section 186.22, subdivision (b)(1) authorizes enhanced
criminal punishment for “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.” A
“criminal street gang” is defined as “any ongoing organization,
association, or group of three or more persons, whether formal or
informal, having as one of its primary activities the commission
of one or more of [certain enumerated] criminal acts[,] . . . having
a common name or common identifying sign or symbol, and
whose members individually or collectively engage in or have
engaged in a pattern of criminal gang activity.” (§ 186.22, subd.
(f).) A “pattern of criminal gang activity” means “the commission
of . . . or conviction of two or more of [certain enumerated
offenses]” that “were committed on separate occasions, or by two
or more persons.” (§ 186.22, subd. (e).)
Our assessment of the sufficiency of the evidence in this
case appropriately includes testimony by qualified gang expert
Officer Guerrero.5 An expert can properly “express an opinion,
based on hypothetical questions that track[ ] the evidence,
whether the [crime], if the jury found it in fact occurred, would
have been for a gang purpose. ‘Expert opinion that particular
5
The defense did not object to Officer Guerrero’s
qualification as an expert witness. Trial counsel did make
several evidentiary objections to aspects of Officer Guerrero’s
testimony, most of which the trial court overruled. Defendant
does not challenge the trial court’s evidentiary rulings on appeal.
16
criminal conduct benefited a gang’ is not only permissible but can
be sufficient to support the Penal Code section 186.22,
subdivision (b)(1), gang enhancement. [Citation.]” (People v.
Vang (2011) 52 Cal. 4th 1038, 1048; see also Prunty, supra, 62
Cal.4th at pp. 82-85 [evaluating whether gang expert testimony
was sufficient to allow jury to find prosecution had proven the
existence of a criminal street gang for purposes of section
186.22].)
1. There is substantial evidence the Black P-
Stones gang is a criminal street gang within the
meaning of section 186.22
Defendant argues the proof at trial was deficient because
he believes the Jungles and the Bittys are gangs in their own
right and there was no evidence that would permit the jury to
conclude they were part of one larger “ongoing organization,
association, or group” (§ 186.22, subd. (f)), namely, the Black P-
Stones. Relying on that premise, he specifically argues there was
no proof of the pattern of criminal activity required by section
186.22 because the two predicate offenses the prosecution sought
to prove were committed by one Bittys member and one Jungles
member; in defendant’s view, this means there was no proof of
two predicate offenses committed by one criminal street gang.
Defendant’s argument fails, however, because his premise is
faulty.
In Prunty, supra, 62 Cal. 4th 59, the California Supreme
Court considered “what type of showing the prosecution must
make when its theory of why a criminal street gang exists turns
on the conduct of one or more gang subsets.” The court held that
“where the prosecution’s case positing the existence of a single
17
‘criminal street gang’ for purposes of section 186.22(f) turns on
the existence and conduct of one or more gang subsets, then the
prosecution must show some associational or organizational
connection uniting those subsets.” (Id. at p. 71.) “In general,
evidence that shows subset members have communicated,
worked together, or share a relationship (however formal or
informal) will permit the jury to infer that the subsets should be
treated as a single street gang.” (Id. at pp. 78-79.) But it is not
enough for the prosecution to show “the group simply shares a
common name, common identifying symbols, and a common
enemy.” (Id. at p. 72.)
The Prunty court identified several types of evidence the
People may present to demonstrate the associational relationship
between a gang and one of its subsets. The prosecution may, for
instance, “show that various subset members exhibit behavior
showing their self-identification with a larger group.” (Prunty,
supra, 62 Cal.4th at p. 71.) This self-identification evidence can
include facts that demonstrate two gang subsets “mutually
acknowledge one another as part of that same organization,” but
it is insufficient to show “merely that a local subset has
represented itself as an affiliate of what the prosecution asserts
is a larger organization.” (Id. at p. 79.) The prosecution may also
elicit testimony that alleged subsets of an overarching gang
“use . . . the same ‘turf’” and routinely act to protect the same
territory. (Id. at pp. 73, 77.) Facts indicating two or more
subsets have “‘work[ed] in concert to commit a crime’” (id. at p.
78) or “‘hang out together’ and ‘back up each other’” (ibid.) also
may help demonstrate the requisite informal association among
subsets alleged to comprise a larger criminal street gang.
18
“The critical shortcoming in the prosecution’s evidence [in
Prunty] was the lack of an associational or organizational
connection between the two alleged Norteño subsets that
committed the requisite predicate offenses[ ] and the larger
Norteño gang that Prunty allegedly assaulted [the victim] to
benefit.” (Prunty, supra, 62 Cal.4th at p. 81.) That is, the
prosecution introduced evidence of two predicate offenses
involving three alleged Norteño subsets (different than the subset
to which the defendant belonged), but the prosecution’s gang
expert never addressed the overarching Norteño gang’s
relationship to these three subsets and instead “simply described
the subsets by name, characterized them as Norteños, and
testified to the alleged predicate offenses.” (Id. at pp. 82-83.)
That, of course, meant the prosecution’s gang expert never
testified “that the subsets that committed the predicate offenses,
or any of their members, self-identified as members of the larger
Norteño association that [the] defendant sought to benefit.” (Id.
at p. 82.) While the gang expert did testify Norteño gang subsets
in general used the same name, symbols, colors, gang signs, and
the like, he did not address whether the subsets whose members
committed the predicate offenses were among those exhibiting
these common characteristics. (Id. at pp. 83-84.)
Officer Guerrero’s testimony does not suffer from the
defects that rendered the expert testimony in Prunty insufficient.
Unlike Prunty, the gang subsets involved in the proffered
predicate offenses in this case were the very same subsets that
were the subject of Officer Guerrero’s testimony linking them to
the overarching Black P-Stones gang. He testified the Bittys and
the Jungles were the “same family, criminal organization,”
“worked together,” and were “part of one gang, the Black P-
19
Stones.” He explained that “[w]hen they do a crime, they do it
together, a Bitty or a Jungle, for the same purpose.” And he
testified the two subsets had “safe passage” to enter the territory
controlled by the other “because they are from Black P-Stones.”
Defendant argues, however, that Officer Guerrero merely
“provided conclusions that were not entitled to any weight
because they were inconsistent with the evidence and purely
speculative.” We see the record quite differently.
Unlike the expert testimony in Prunty describing “the
Norteños” as “a Hispanic street gang,” which our Supreme Court
found “purely conclusory and essentially of no use to the fact
finder” (Prunty, supra, 62 Cal.4th at pp. 84-85), Officer
Guerrero’s testimony was backed by specific evidence. In
scholastically reminiscent detail, he recounted the origins of the
Black P-Stones chapter in Los Angeles, making it clear how and
why the gang developed to include both the Bittys and the
Jungles subsets.6 This was significant evidence of an
associational connection: just as licit organizations like Berkshire
Hathaway broaden their reach by mergers and acquisitions, so
too can informal, loosely organized illicit associations, which,
according to Officer Guerrero, is what happened when the Bittys
needed reinforcements and recruited the Jungles to join them.7
6
Because Officer Guerrero was testifying as an expert
witness, his testimony alone was competent to establish this
history. (Evid. Code, § 801, subd. (b); cf. People v. Sengpadychith
(2001) 26 Cal. 4th 316, 322 [police gang expert can testify to
gang’s primary activities].)
7
This testimony was not merely evidence that might permit
the inference that the Bittys and the Jungles share a common
origin (compare Prunty, supra, 62 Cal.4th at p. 83). It was
20
In addition, there is a plethora of evidence in the record
that the Bittys and the Jungles subsets self-identified as part of
the Black P-Stones and “mutually acknowledge[d] one another as
part of that same organization.” (Prunty, supra, 62 Cal.4th at p.
79.) That evidence includes the “all the way from the Bitty[s] to
J’s” saying that Black P-Stones members used according to
Officer Guerrero—a saying that plainly conveys the Bittys and
the Jungles are constituents of the Black P-Stones gang. The
evidence of self-identification also includes the text messages on
defendant’s phone with numerous “P-Stone” references when the
texting parties would refer to one another (including the “WYA
[i.e., where you at] P-Stone” text Jones sent defendant when
calling him to the scene of the fights), as well as the P-Stone
reference made even during defendant’s post-arrest phone call
from jail.
Also backing Officer Guerrero’s opinion that the Bittys and
the Jungles were associated subsets of the Black P-Stones gang
was the law enforcement gang database he consulted, which
listed the 1,100-plus individuals as members of the Black P-
Stones, albeit further divisible into a 800-person Jungles subset
and a 300-person Bittys subset. The facts of the charged offenses
provided yet further evidentiary grounding for Officer Guerrero’s
opinions. The jury could infer defendant’s “NRK” tattoo indicated
he was a member of the Jungles subset, yet Jones called on
defendant for aid in responding to fights occurring at the
apartment building located in the Bittys’ portion of the gang’s
turf. This is evidence the jury could use to infer, in the language
instead evidence of how the gang evolved into the organization it
was at the time of trial.
21
of Prunty, that the two subsets “‘back up each other’” and, at least
when called for, “act to protect the same territory.” (Prunty,
supra, 62 Cal.4th at pp. 77-78.) In fact, defendant’s own body
was evidence of the organizational connection between the Black
P-Stones gang and its subsets: defendant had NRK tattooed on
his back but also had BPS tattooed on his stomach—a corporeal
representation of the association between the gang and one of its
subsets (or, more precisely, sub-cliques).
There was accordingly substantial evidence of an
associational and organizational connection that unites members
of the Black P-Stones, whether from the Bittys or the Jungles
subset. The predicate offenses relied on by the prosecution were
therefore both attributable to the Black P-Stones and section
186.22, subdivision (f)’s definition of a “criminal street gang” was
satisfied.
2. There is substantial evidence defendant
committed the assaults in association with a
criminal street gang
To prove an allegation under section 186.22, subdivision
(b)(1) true, the prosecution must introduce evidence to establish
both statutory elements, i.e., that the underlying crime was “gang
related” and that the defendant acted with the requisite specific
intent.8 (Albillar, supra, 51 Cal.4th at p. 59.) Defendant
contends the prosecution failed to prove he committed the crimes
8
Defendant contests only the first of these elements. We
therefore do not discuss the evidence on which the jury could
have relied to find defendant acted with the requisite specific
intent.
22
for the benefit of a criminal street gang, but section 186.22,
subdivision (b)(1) describes what the prosecution must prove in
the disjunctive, i.e., that the crime must be “committed for the
benefit of, at the direction of, or in association with any criminal
street gang.” (Emphasis added.) Thus, regardless of whether the
evidence sufficed to establish defendant committed the charged
assaults for the benefit of the Black P-Stones (a slightly closer
question), we uphold the jury’s true findings because there is
substantial evidence defendant and Jones “came together as gang
members [to commit the assaults] and, thus, that they committed
the[ ] crimes in association with the gang.” (Albillar, supra, at p.
62.)
There was ample evidence at trial that the charged firearm
assaults were gang related. There was strong evidence defendant
and Jones were Black P-Stones gang members; among other
things, the two were photographed together wearing gang
paraphernalia and “throwing” gang signs. Officer Guerrero also
testified the apartment building that served as the backdrop for
the charged firearm assaults was located in territory claimed by
the Black P-Stones. The charged assault offenses also fell within
the categories of “ADW shootings” and assaults with deadly
weapons that Officer Guerrero identified as among the Black P-
Stones primary activities. In addition, during one of the fights
that preceded the shootings, Jones and/or Hopson had yelled the
BPS gang name and threatened “to call people,” a threat Jones
made good on when he called defendant, who later arrived for the
final fight.9 And during that final fight, the jury was entitled to
9
The post-arrest phone call from defendant to Jones made it
clear that Jones called defendant to request aid in connection
with the ongoing fighting.
23
find Jones and defendant acted in concert: after Hopson yelled to
Jones to “bring that thing out that bag,” Jones made a similar
statement and he and defendant then emerged from the
apartment building—with the shooting starting soon thereafter.
This evidence amounts to proof that is just as substantial
(and perhaps more so) as the key facts our Supreme Court found
sufficient in Albillar to sustain a section 186.22 gang
enhancement. (Albillar, supra, 51 Cal.4th at p. 60 [the
defendants “relied on their common gang membership and the
apparatus of the gang” to commit the charged crimes].)
Especially when combined with Officer Guerrero’s expert opinion
on the importance of respect to gangs, the imperative to protect
gang territory, and the need to comply with requests to commit
an act of violence made by a fellow gang member, the jury’s
finding that the charged assaults were gang related was well
supported by the evidence.10
10
The evidence presented in the cases defendant cites to
argue the contrary was significantly weaker. In People v. Ramon
(2009) 175 Cal. App. 4th 843, there were no facts that linked the
crimes at issue (receiving a stolen vehicle and possession of a
firearm offenses) to a crime likely to be committed by the gang,
and thus, nothing to support the gang expert’s opinion that the
crimes were gang related. (Id. at p. 853 [“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”].) In People v. Ochoa (2009) 179
Cal. App. 4th 650, the crime was not committed in gang territory
and the defendant was not accompanied by a fellow gang
member. (Id. at p. 662.)
24
[Parts II.C and II.D, below, are deleted from publication.
See post at page 26 for where publication is to resume.]
C. The Firearm Enhancement on Count Three Should
Not Have Been Applied
Section 1170.1, subdivision (f) provides in relevant part:
“When two or more enhancements may be imposed for being
armed with or using a dangerous or deadly weapon or a firearm
in the commission of a single offense, only the greatest of those
enhancements shall be imposed for that offense.” The trial court
erred when it imposed both the firearm enhancement and the
gang enhancement alleged in count three of the information.
In People v. Rodriguez (2009) 47 Cal. 4th 501 (Rodriguez),
the defendant was convicted of three counts of assault with a
firearm. (Id. at p. 505.) The jury also found true two
enhancements as to each count: a section 12022.5, subdivision (a)
enhancement for personal use of a firearm while committing a
felony, and a section 186.22, subdivision (b)(1)(C) enhancement
for committing a violent felony for the benefit of a criminal street
gang. (Ibid.) On review, the California Supreme Court
overturned the sentence, finding it had been imposed in violation
of section 1170.1, subdivision (f). (Id. at p. 508.) The court
explained its holding as follows: “[T]he standard additional
punishment for committing a felony to benefit a criminal street
gang is two, three, or four years’ imprisonment. [Citation.] But
when the crime is a ‘violent felony, as defined in subdivision (c) of
Section 667.5,’ section 186.22’s subdivision (b)(1)(C) calls for
additional punishment of 10 years. Here, defendant became
eligible for this 10-year punishment only because he ‘use[d] a
25
firearm which use [was] charged and proved as provided
in . . . Section 12022.5.’ [Citation].” (Id. at p. 509.)
The error identified in Rodriguez is identical to the error in
this case. Defendant’s conviction on count three of the
information was a violent felony solely because the jury found
true the charged section 12022.5, subdivision (a) enhancement for
personal use of a firearm (unlike the conviction on count two,
where the jury also found true a great bodily injury
enhancement). The trial court therefore could not, consistent
with section 1170.1, subdivision (f), enhance defendant’s sentence
for both the gang and the personal use of a firearm allegations.
We accordingly reverse the sentence imposed and remand for
resentencing. (Rodriguez, supra, 47 Cal.4th. at p. 509 [“The
proper remedy, however, was not to strike the punishment under
section 12022.5 but to reverse the trial court’s judgment and
remand the matter for resentencing. [Citation.] Remand will
give the trial court an opportunity to restructure its sentencing
choices in light of our conclusion that the sentence imposed here
violated section 1170.1’s subdivision (f)”].)
D. Defendant Is Entitled to Additional Presentence
Credit
The parties agree defendant is entitled to eleven additional
days of presentence custody credit. We agree the parties are
correct, and at the time defendant is resentenced, the trial court
is directed to give him credit for a total of 780 days, consisting of
679 days of actual custody credit and 101 days of conduct credit.
[The remainder of the opinion is to be published.]
26
DISPOSITION
Defendant’s convictions are affirmed. The sentence
imposed is reversed and the matter is remanded to the trial court
for resentencing consistent with this opinion and section 1170.1,
subdivision (f).
CERTIFIED FOR PARTIAL PUBLICATION
BAKER, J.
We concur:
KRIEGLER, Acting P.J.

KIN, J.

Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
27