THE PEOPLE v. JONATHAN DAVID HENLEY

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. JONATHAN DAVID HENLEY, Defendant and Appellant.

B215829

Decided: June 22, 2010

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey, and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Jonathan David Henley appeals from the judgment entered upon his convictions by jury of attempted murder (Pen.Code, §§ 664, 187, subd. (a), count 1),1 assault with a firearm (§ 245, subd. (a)(2), count 3) and aggravated mayhem (§ 205, count 7).2  As to count 1, the jury found to be true the special allegation that the attempted murder was committed willfully, deliberately and with premeditation within the meaning of section 664, subdivision (a).   It also found to be true, as to all counts, the gang allegation within the meaning of section 186.22, subdivision (b)(1) and, as to counts 1 and 7, the allegation that a principal personally discharged a firearm causing great bodily injury within the meaning of section 12022.53, subdivisions (d) and (e)(1).   The trial court sentenced appellant to state prison for a term of life plus 25 years to life.   Appellant contends that there is insufficient evidence (1) to support his conviction of mayhem, and (2) to support the gang allegation.

We reverse in part and affirm in part.

FACTUAL BACKGROUND

The Shooting

On August 9, 2006, at 7:00 p.m., Arthur Spicer (Spicer) was on the north side of Cherry Avenue, between Ivy and California Avenues, in the City of Monrovia, when he saw a light gray or blue car driving down Cherry Avenue.   The car drove across the center of the street, slowed down and stopped next to him.   From 10 feet away, the passenger pointed a small, black, possibly .22-caliber gun at him.   Spicer dropped to the ground and heard two gunshots.   He then saw the car drive up the street at approximately five miles per hour, heard two more gunshots and saw a man fall down near the corner of Cherry and California Avenues.

At that time, Robert Graves, Jr., (Graves) was washing his car outside his residence at the corner of Cherry and California Avenues.   Graves was not a gang member.   He saw a silver car, with tinted back windows, moving at five to 10 miles per hour,3 drive next to him, with the front passenger side nearest him, with its window down.   He did not hear any gunshots before he saw the car, but “there was [sic ] people down the street, [he] wasn't really paying attention.”

The passenger asked Graves, “What's up, homie?”   When Graves turned to see who was talking to him, the car was two feet away and a gun was sticking out of its window.   Graves could see the driver and a front passenger, but did not see their faces or recognize the passenger's voice.   A shot was fired, hitting Graves in the face.   He fell to the ground and heard two more shots.

Sharmaine Currie (Currie), who lived on Cherry Avenue, midway between Ivy and California Avenues, was outside of her home when she heard approximately 10 shots.   When she first looked down Cherry Avenue in the direction of the shots, she saw Spicer near Ivy Avenue and a gray or silver Stratus or Intrepid moving down Cherry Avenue towards California Avenue, “significantly slower” than normal traffic on this street.   Spicer was running around, yelling, “They're shooting.”   As the car passed her, Currie could not see the occupants' faces, but saw that there was a front passenger and a “big” driver, who had little hair or was bald.   Both men were Hispanic.   Currie told police that she heard a “pop” near Spicer, then several shots at the corner of Cherry and California Avenues.

Omar Gutierrez, who lived on California Avenue, just South of Cherry Avenue, was inside about to leave, when he heard three or four gunshots.   He went outside, saw a gray or silver Intrepid, with tinted windows, driving fast down California Avenue from Cherry Avenue.   He could not see the occupants.

As a result of the shooting, Graves suffered a bullet wound to his head, requiring surgery of his right eye and placement of a prosthetic piece in his left eye.   He lost his vision in his left eye and had blurry vision in his right eye.

The investigation

Detective Robert Manuel, the investigating officer, received information that a gray Dodge Intrepid with tinted windows was involved in the shooting.   He located a car meeting that description parked in front of appellant's residence in Azusa, registered to appellant.   A latent palm print matching that of Albert Castro (Castro) was lifted from its right, front fender.   Detective Manuel knew Castro and his father to be members of the Monrovia Nuevo Varrio (MNV) gang.

Detective Manuel searched the car and found a box of .22-caliber bullets in the front, center console and a .22-caliber revolver under the driver's seat.   No ballistics evidence was recovered at the scene.   A green jersey with the word “Monrovia” visible was displayed in the car's rear window.

On the cell phone confiscated from appellant when he was arrested, Detective Manuel found approximately 20 photographs and numerous telephone numbers for people with gang monikers.   The photographs depicted people making the hand sign of the “M,” the logo of the MNV gang.   One photograph depicted appellant with known gang members.   Detective Manuel learned during his investigation that appellant graduated from, and played football at, Monrovia High School, whose school colors were green.   According to the detective, it was common to have “M” stickers on the back of cars signifying support for that school, but “M” hand signs were not used to indicate allegiance to it.   He acknowledged that a person displaying an “M” is not necessarily a gang member.

In August 2006, Andy Askar (Askar), who co-owned Certified Market, spoke with officers.   He told them that he grew up with appellant, graduated from high school with him and remained in contact with him afterwards.   He had no idea if appellant had friends who were gang members.   On the night of the shooting, appellant came into his store with Castro after 8:00 p.m. Appellant stayed for a while and then left.   He did not appear upset and acted normally.   He did not purchase any beer.   Askar had seen Monrovia High School students making an “M” hand sign to signify school allegiance.

Interview of appellant

Detective Manuel interviewed appellant several times, once in a video-recorded interview at the police station.   During that interview, appellant described his tattoos, none of which were gang tattoos.   He admitted owning the car found in front of his residence.   He said that on the day of the shootings, he left work and went to Certified Market to buy some beer.   There, he met “a guy,” Robert, whom he had not “seen in a while.”   Robert was with Robert's cousin, Jesse, whom appellant was “sure [he] was from somewhere” because of his baggy clothing and white T-shirt.

Robert asked appellant to drive him and Jesse to Duarte Road. On the way, they drove down Cherry Avenue “at a regular pace.”   Robert was in the front seat, and Jesse was in the back.   Jesse rolled down his window, fired a gun at a Black man washing his car and said, “Fuck that fool․”  This surprised appellant, who did not know what to do, so he took off as fast as he could.   He dropped Robert and Jesse off at a liquor store on Duarte Road and then went home.   Appellant denied being an MNV gang member and shooting anyone, but admitted having friends in that gang.   At one point in the interview, appellant asked how much jail time he would do, and, at another time, asked, “So what's my best deal right now?”

Gang evidence

Officer William Burkhalter testified as the People's gang expert.   He was familiar with the predominantly Hispanic MNV gang.   The gang's hand sign was an “M,” and its members tended to have shaved heads and wear large, baggy clothing.   The gang claimed the City of Monrovia and some unincorporated surrounding areas as its territory.   It's primary activities included shootings at inhabited dwellings, narcotics violations, batteries, assaults with deadly weapons, murders, and attempted murders.   Officer Burkhalter testified to two recent predicate offenses committed by MNV gang members.

Officer Burkhalter was also familiar with the Black Duroc Crips gang (Duroc Crips).   That gang claimed as its territory the unincorporated area around Monrovia, the southern part of Monrovia, including the area around Cherry and California Avenues, and the City of Duarte.   Between March 2006 and August 2006 there were shootings between the Duroc Crips and MNV, including shootings of innocent persons not involved with either gang.

Though there were no field identification cards documenting appellant's gang membership, appellant had no gang tattoos, Officer Burkhalter had never heard of him before this incident despite the officer's numerous contacts with dozens of MNV gang members, and appellant had no known moniker, Officer Burkhalter nonetheless opined that appellant was a member of the MNV gang based on the totality of the circumstances.   He said that his opinion was supported by the facts that appellant was previously contacted in the company of MNV gang members, the circumstances of the crime for which he was arrested and who he was with during that crime.   The officer testified that anyone associating with known gang members is engaging in gang activity.   There were photographs of MNV gang members making gang signs on appellant's cell phone.   Phone numbers on the cell phone included numerous listings by their monikers of MNV gang members.   Appellant's car had a green jersey displayed so the word “Monrovia” printed on it was visible through the window.

Officer Burkhalter explained that respect is very important to gangs.   Members gain respect by committing crimes for their gang.   A person can get into a gang by being “jumped in” or “putting in work.”   Committing a crime with other gang members is a way to get into a gang.   An associate of a gang is someone who hangs around gang members, “not actually participating in activities.”

Based upon a hypothetical reflecting the evidence in this matter, Officer Burkhalter opined that the charged offenses were committed for the benefit of a criminal street gang.   Officer Burkhalter's opinion was supported by the facts that the Monrovia jersey was visible in the car window, appellant's photograph was possessed by an MNV gang member, and appellant drove the car from which shots were fired by a known gang member.   Because the shootings took place in rival Duroc Crips territory, they sent a message to that gang and residents living in that gang's territory that the MNV gang was entering its territory.   Officer Burkhalter testified that his opinion would not change even if appellant was only an associate of the MNV gang.

DISCUSSION

I. Sufficiency of evidence to support mayhem conviction

A. Contention

Appellant was convicted in count 7 of aggravated mayhem.   He contends that there is insufficient evidence to support that conviction.   He argues that aggravated mayhem requires the specific intent to cause maiming injury.   “Lacking here is substantial evidence that Castro's act of shooting at Graves as he was passing by in a moving car was committed with the specific intent of maiming Graves” and that appellant “shared Castro's intent knowing the full extent of the perpetrator's criminal purpose.”   This contention lacks merit.

B. Standard of review

“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  [Citations.]”  (People v. Bolin (1998) 18 Cal.4th 297, 331.)   We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence.  (People v. Autry (1995) 37 Cal.App.4th 351, 358.)  “ ‘[T]he appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’  [Citation.]  This standard applies whether direct or circumstantial evidence is involved.”   (People v. Catlin (2001) 26 Cal.4th 81, 139.)   Reversal is unwarranted unless ‘ “upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ ”  (People v. Bolin, supra, at p. 331.)

C. Castro intended to maim

Appellant argues that there was insufficient evidence that Castro fired the gun with the intent to maim Graves.   He is wrong.

Aggravated mayhem is defined in section 205, as follows:  “A person is guilty of aggravated mayhem when he or she unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body.   For purposes of this section it is not necessary to prove an intent to kill.”  (Italics added.)   Specific intent to cause maiming injury is an element of aggravated mayhem.  (People v. Ferrell (1990) 218 Cal.App.3d 828, 833 (Ferrell ).)

“Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.”  (People v. Bloom (1989) 48 Cal.3d 1194, 1208.)   A jury may infer a defendant's specific intent from the circumstances attending the act, the manner in which it is done, and the means used, among other factors.   (Ferrell, supra, 218 Cal.App.3d at p. 834.)   The requisite intent to maim may not be inferred solely from evidence that the injury inflicted actually constitutes mayhem type injury.  (Id. at p. 835.)   Evidence of a controlled and directed attack or an attack of focused or limited scope may provide substantial evidence of a specific intent to maim.  (People v. Lee (1990) 220 Cal.App.3d 320, 326.)   On the other hand, where the evidence shows no more than an “ ‘indiscriminate’ or ‘random attack,’ or an ‘explosion of violence’ upon the victim,' ” it is insufficient to prove an intent to maim.  (People v. Quintero (2006) 135 Cal.App.4th 1152, 1162.)

In Ferrell, the defendant was a stranger to her victim, but came looking for her by name, stating that she had been sent by a friend from jail.   Defendant pointed her gun at her victim's mother and threatened to kill her.   When the victim's father moved toward defendant, she calmly and deliberately lowered her aim and shot him in the knee.   The defendant then turned and shot her victim once in the neck.   Once her victim was down, defendant did not fire additional shots.   As a result of her injury, the victim was permanently partially paralyzed.   The Court of Appeal observed that it takes no special expertise to know that a shot to the neck from close range, if not fatal, is highly likely to disable permanently.   The evidence did not show an indiscriminate random attack on the victim's body or an explosion of violence.   Instead, the attack was directed, controlled, and of focused or limited scope.  (Ferrell, supra, 218 Cal.App.3d at pp. 835-836.)   To summarize, in Ferrell, after considering the circumstances attending defendant's act, the manner in which it was done, and the means used, the Court of Appeal held that the evidence was sufficient to support the jury's determination that defendant intended to disable her victim permanently.

While there are considerable differences between the facts in Ferrell and those presented here, consideration of the most salient facts leads us to a similar conclusion.   Castro was in a car being driven by appellant on Cherry Avenue, going significantly slower than customary for traffic in that area.   The car stopped in front of Spicer, and Castro fired two shots at him, missing both times.   The car continued at a very slow pace to the next corner and, from two feet away, Castro shot Graves in the head, and the car sped away.   This evidence was sufficient for the jury to reasonably conclude that the attack on Graves was not indiscriminate or a random explosion of violence.   Rather, it was a “cold and deliberate” (Ferrell, supra, 218 Cal.App.3d at p. 835), calculated, pinpointed attack.   The jury so found, having concluded that the special allegation that the attempted murder was willful, deliberate and premeditated was true.

Further, the shot was made from point blank range and was aimed at Graves's head, a part of his body that made it extremely likely that he would be killed or severely disabled, and the car sped away.   Firing a gun at someone from point blank range is circumstantial evidence of intent to kill that person (People v. Lashley (1991) 1 Cal.App.4th 938, 945 [shooting at point-blank range “undoubtedly creates a strong inference that the killing was intentional”];  see also People v. Chinchilla (1997) 52 Cal.App.4th 683, 690 [“The act of firing toward a victim at a close, but not point blank, range ‘in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill’ ”] ), or maim the person if the person does not die, especially when the shot is aimed at a vulnerable area of the body.   A defendant may intend to both kill and disable or disfigure his victim if the attempt to kill is unsuccessful.  (Ferrell, supra, 218 Cal.App.3d at pp. 833-834.)   These facts support the jury's implicit finding that Castro intended to maim Graves.

D. Appellant shared Castro's intent

Appellant argues that even if Castro shot Graves with the specific intent to maim him, there was no evidence that appellant “shared Castro's intent knowing the full extent of [his] criminal purpose.”   We disagree.

“All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, ․ are principals in any crime so committed.”  (Pen.Code, § 31.)   A person is liable for aiding and abetting when, (1) with knowledge of the unlawful purpose of the perpetrator and (2) with the intent or purpose of committing, or encouraging, or facilitating the commission of the crime, that person (3) by act or advice aids, promotes, encourages, or instigates the commission of the crime.  (People v. Gibson (2001) 90 Cal.App.4th 371, 386.)   Whether a person is an aider and abettor may be shown by circumstantial evidence (see People v. Gutierrez (2009) 45 Cal.4th 789, 814) and is ordinarily a question of fact for the trier of fact (People v. Herrera (1970) 6 Cal.App.3d 846, 852).

There was ample evidence from which the jury could have concluded that appellant was complicit and intended to aid and abet in the shooting of Graves with the intent to cause maiming injury.   First, appellant was driving the car from which the shooting occurred.   Second, he was driving slowly and stopped by Spicer, suggesting his knowledge that something was going to happen there.   Even if the jury believed appellant's testimony that it came as a complete surprise to him when the shooting at Spicer occurred, that statement simply is incredible when applied to Graves' shooting.   The shooting at Spicer put appellant on notice of the shooters' intent, even if he did not know it beforehand.   Yet appellant did not immediately speed up and leave the area or take any other action that might suggest his surprise, disapproval or lack of participation in the shooting.   Instead, he continued to drive slowly to within two feet of Graves, slow down near him, while someone in his car asked Graves, “What's up homie?”   This conduct by appellant, in light of the evidence that shots were fired at Spicer moments before, permitted the jury to infer that appellant knew Castro was going to shoot Graves and joined in Castro's intention to either kill or maim him.

But appellant did not have to share Castro's intent to maim Graves in order to be guilty of mayhem.  “A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime.”  (People v. Mendoza (1998) 18 Cal.4th 1114, 1133.)   The question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.  (Ibid.) Culpability under the probable consequences doctrine is dependent on whether a reasonable person in the defendant's position would have, or should have, known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.  (People v. Nguyen (1993) 21 Cal.App.4th 518, 535.)

Consequently, if appellant aided and abetted in Castro's assaults with a firearm, he is culpable under the natural and probable consequences doctrine for all reasonably foreseeable additional crimes regardless of whether he specifically intended to commit them.  (People v. Mendoza, supra, 18 Cal.4th at p. 1133;  see also People v. McCoy (2001) 25 Cal.4th 1111, 1118 [“[O ] utside of the natural and probable consequences doctrine, an aider and abettor's mental state must be at least that required of the direct perpetrator” (italics added) ];  see also People v. Lee (2003) 31 Cal.4th 613, 624.)   Shooting at innocent bystanders from close range makes it reasonably foreseeable that the victims may be killed or maimed.

II. Sufficiency of evidence to support gang allegation

A. Contention

Appellant contends that there is insufficient evidence to support the gang allegation.   He makes two principal arguments.   First, he argues that there was insufficient evidence that the shootings were for the benefit of a criminal street gang because the gang expert's opinion reaching that conclusion was based upon unsupported facts:  that appellant was a gang member;  that Castro was a gang member;  and that the car they were in was being driven slowly.   Second, he argues that there was insufficient evidence that appellant aided and abetted in the shooting with the specific intent to promote, further, or assist in any criminal conduct by gang members.   We find substantial evidence of the true findings on the gang enhancement lacking and, therefore, reverse those findings.

B. Standard of review

We review the sufficiency of the evidence to support a sentence enhancement under the same standard applicable to a conviction, as set forth in part I, ante.  (People v. Wilson (2008) 44 Cal.4th 758, 806.)

C. Gang-related offense

Section 186.22, subdivision (b)(1) provides that a person 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 can receive an enhanced sentence.  (People v. Gardeley (1996) 14 Cal.4th 605, 616-617 (Gardeley.)   It applies to gang-related crimes.  (People v. Castenada (2000) 23 Cal.4th 743, 745.)

An expert may render an opinion based on the facts of a hypothetical question as to whether a crime is committed for the benefit of, at the direction of or in association with a criminal street gang.  (See Gardeley, supra, 14 Cal.4th at pp. 617-618.)   But a hypothetical must be rooted in facts shown by the evidence.  (Id. at p. 618.)   A gang experts testimony alone is insufficient to find an offense gang related.  (People v. Ochoa (2009) 179 Cal.App.4th 650, 665 (Ochoa ).)   Evidence that a gang member committed a crime alone with an experts unsubstantiated opinion that the crime was committed for the benefit of the gang is insufficient to find the gang enhancement to be true.  (Ibid.) [T]he record must provide some evidentiary support, other than merely the defendants record of prior offenses and past gang activities and personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.  (People v. Martinez (2004) 116 Cal.App.4th 753, 762 (Martinez ).)   The crime must have some connection with the activities of a gang.  (Id. at p. 757.)  “The gang enhancement cannot be sustained based solely on defendant's status as a member of the gang and his subsequent commission of crimes.”  (Ochoa, supra, at p. 663.)

We join the growing chorus of appellate courts that have critically reviewed the perfunctory testimony of gang-experts and found it insufficient to support the gang enhancement.   In People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon ), officers stopped the defendant, a conceded gang member, while he was driving a stolen vehicle within his gang's territory with a fellow gang member in the passenger seat.   Officers found a loaded, unregistered firearm under the driver's seat.  (Id. at pp. 846-848.)   Defendant was charged with receiving a stolen vehicle, possession of a firearm by a felon, possession of a firearm while an active gang member, and carrying a loaded firearm in public for which he was not a registered owner, as well as corresponding gang enhancements.  (Id. at p. 848.)   A gang expert testified that one of the gang's primary activities was car theft.  (Id. at p. 847.)   The expert opined that by driving a stolen vehicle with an unregistered firearm within his gang's territory, the defendant could conduct numerous crimes and simply dump the vehicle and gun thereafter, having no ties to them.  (Id. at pp. 847-848.)   Both could be used to spread fear and intimidation within the gang's territory.  (Id. at p. 848.)   In response to a hypothetical mirroring the facts of the case, the expert concluded that the defendant's crimes would benefit his gang.  (Ibid.) The jury convicted the defendant of all the substantive counts and found true three of the four gang enhancement allegations.  (Ibid.)

The Court of Appeal vacated the gang enhancements.   It concluded that the only “evidence” supporting an inference that the defendant committed the instant crimes with the specific intent to promote, further, or assist criminal conduct by gang members was impermissible speculation:  The People's expert simply informed the jury of how he felt the case should be resolved.   This was an improper opinion and was not substantial evidence to support the gang enhancement.   There were no facts from which the expert could discern whether the defendant and his associate were acting on their own behalf or for the benefit of their gang.  (Ramon, supra, 175 Cal.App.4th at p. 851.)  “While it is possible the two were acting for the benefit of the gang, a mere possibility is nothing more than speculation.   Speculation is not substantial evidence.”  (Ibid;  see also People v. Albarran (2007) 149 Cal.App.4th 214, 227 [expert's testimony that gang members gain respect and enhance their status within their gang by committing crimes did not support conclusion that the defendant's offenses were gang related where there was no evidence gang members presented signs of gang membership or announced their presence, before or after the offenses, that gang members bragged about their involvement in the crimes or created graffiti to take credit for them and defendant's gang membership alone insufficient to sustain inference that a crime committed by that defendant was gang related];  see also Martinez, supra, 116 Cal.App.4th at p. 757 [insufficient evidence that offense was gang activity because auto burglary is not necessarily a gang crime and no evidence to connect offense to gang activity].)

In Ochoa, the defendant approached a parked car with the victim inside, pointed a shotgun at the victim's face and demanded the vehicle.   The defendant made no gang signs or signals.   The victim exited and ran away, and the defendant drove away in the car.   A gang expert testified that the defendant was a member of the Moreno Valley 13 gang, that car theft and carjacking were “signature” crimes of that gang, and the crime was committed for the benefit of the gang because stealing the car provided economic benefit to the gang and raised its reputation in the community.  (Ochoa, supra, 179 Cal.App.4th at pp. 653-656.)

The Court of Appeal concluded that there was no evidentiary support for the expert's opinion that the offenses were for the benefit of the gang as “nothing in the circumstances of the instant offenses sustain the expert witness's inference that they were gang related.”   Carjacking is not only a gang offense and nothing was said during the crime to indicate that it was for the gang.   (Ochoa, supra, 179 Cal.App.4th at pp. 661-662.)

In In re Frank S. (2006) 141 Cal.App.4th 1192, 1195 (Frank S.), a police officer detained the minor for failing to stop his bicycle at a red traffic light.   The officer discovered a knife, a bindle of methamphetamine, and a red bandana on the minor.   Among other charges, the People charged the minor with carrying a concealed dirk and a gang enhancement.   The prosecution's gang expert testified that the minor was a gang member and that the substantive offense was for the benefit of his gang.  (Ibid.) The expert testified that “a gang member would use the knife for protection from rival gang members and to assault rival gangs.”  (Ibid.)

The appellate court reversed the enhancement, finding that “nothing besides weak inferences and hypotheticals show the minor had a gang-related purpose for the knife.”  (Frank S., supra, 141 Cal.App.4th at p. 1199.)  “[U]nlike in other cases, the prosecution presented no evidence other than the expert's opinion regarding gangs in general and the expert's improper opinion on the ultimate issue to establish that possession of the weapon was ‘committed for the benefit of, at the direction of, or in association with any criminal street gang․’  [Citation.]   The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense.   In fact, the only other evidence was the minor's statement to the arresting officer that he had been jumped two days prior and needed the knife for protection.   To allow the expert to state the minor's specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended.”  (Ibid.)

Here, there was only speculation, not evidence, that this was a gang crime.   There was nothing but the bald conclusions of the expert that appellant and Castro were MNV gang members.   Virtually all of the evidence that appellant was a member of that gang related to his affiliating with members of that gang.   He admitted having friends in the MNV gang.   His cell phone had photographs of gang members making gang signs and contained addresses for gang members with their monikers.   A photograph of appellant was found in the possession of an MNV gang member.   In it, however, appellant was not throwing gang signs nor was there any reference to a gang.   Other than this evidence of affiliation with MNV gang members, there was little else.   Moreover, Officer Burkhalters expert testimony taken as a whole reflects a fundamental misconception that mere association with gang members constitutes engaging in gang activity.

Appellant had no gang tattoos, and Officer Burkhalter, despite his extensive contacts with gang members in the area, had never met appellant before.   There were no field identification cards indicating that appellant was a gang member and no evidence he had a gang moniker.   Moreover, as Officer Burkhalter acknowledged, in the Monrovia area nongang members grow up, go to school with, and are often friends with gang members.

There was also deminimus evidence that Castro was an MNV gang member.   The sole testimony on that subject was the examination of Officer Burkhalter as follows:

Q. Have you had contact with Albert Castro?   A. Yes, I have.   Q. And do you have an opinion as to whether hes a member of MNV? A. Yes, he is.   The testimony fails to indicate whether the opinion is based on the contacts, and what aspect of the contacts led Officer Burkhalter to his conclusion.   Hence, the officers opinion is unsupported.

There was only speculative evidence that the crime was committed for the benefit of the gang.   Officer Burkhalter found the green Monrovia sweatshirt displayed in the back of appellants car to be indicative of his membership in MNV gang because Green and white were the MNV gang colors and Monrovia High School clothes were popular with that gangs members.   But the sweatshirt visible from the rear window was found when the car was located sometime after the shooting.   There was no evidence that it was displayed in the car at the time of the shooting to signify that the shooting was gang-related.   There was no evidence to support Officer Burkhalters testimony that the green sweatshirt was anything other than a reference to Monrovia High School from which appellant graduated and played football for four years.   None of the discovery produced a single photograph of an MNV gang member wearing such clothing and no other officer in Officer Burkhalters unit relied on this criteria.

While drive-by shootings are frequently gang offenses, this shooting gave little indication that that was the case.   No one in appellants car yelled out any gang name, threw any gang signs or left any gang related graffiti.   The victims had no gang affiliation.   The usual gang challenge, Where you from? was not made.   There was no evidence that the statement that was made, Whats up homie? had special gang significance.   There was no evidence of anything done at the scene to demonstrate to the community or local gangs that the shooting was for the benefit of the MNV gang.   Without such evidence, it is unclear how the offense can be said to have benefitted the gang by letting its rivals know that MNV committed the offense.

In short, while the shooting, in some general, intuitive, speculative sense gave the appearance of a gang-style crime, cases are not decided on gut feelings but on substantial evidence.   That evidence is not present here.

D. Intent to promote or assist gang members

Appellant also argues that there is insufficient evidence that he acted to further, promote or assist criminal conduct by gang members.   He asserts that the experts testimony was exclusively hypothetical and did not provide any direct or circumstantial evidence of appellants or Castros intent.   He claims there was no evidence that appellant associated with Castro for any purpose prior to the shooting incident and no evidence appellant knew or had reason to believe Castro was a gang member.

For the reasons, set forth above, there is insufficient evidence appellant had the specific intent to promote, further, or assist in any criminal conduct by gang members (§ 186.22, subd. (b)(1)).   As stated in People v. Villalobos (2006) 145 Cal.App.4th 310, 322, “As to the second prong of the enhancement, all that is required is a specific intent ‘to promote, further, or assist in any criminal conduct by gang members.’  [Citation.]  Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.”   Without evidence that gang members or “wannabes” committed the shooting or that appellant was a gang member, there is no evidence that appellant intended to assist criminal conduct by gang members.

DISPOSITION

The true finding on the gang enhancement is reversed, the gang enhancement stricken, and the judgment is otherwise affirmed.   On remand, the trial court is directed to correct the abstract of judgment accordingly.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ASHMANN-GERST

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. Appellant was acquitted of attempted murder and assault with a firearm on a second victim in counts 2 and 4, respectively..  FN2. Appellant was acquitted of attempted murder and assault with a firearm on a second victim in counts 2 and 4, respectively.

FN3. At the preliminary hearing, Graves testified the car was going 15 miles per hour.   At trial, he acknowledged that 15 miles per hour was more accurate than five miles per hour..  FN3. At the preliminary hearing, Graves testified the car was going 15 miles per hour.   At trial, he acknowledged that 15 miles per hour was more accurate than five miles per hour.

_, P.J. BOREN _, J. DOI TODD