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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiffs and Respondents, v. Rochelle Lonel GARDELEY, et al., Defendants and Appellants.

No. H011235.

Decided: November 23, 1994

Janice M. Lagerlof, San Francisco, under appointment by Court of Appeal, for defendant and appellant Gardeley. John M. Hanley, Sunnyvale, under appointment by Court of Appeal, for defendant and appellant Thompson. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Mark S. Howell, Supervising Deputy Atty. Gen., Edward P. O'Brien, Deputy Atty. Gen., San Francisco, for respondent.


Defendants Rochelle Lonel Gardeley and Tommie James Thompson were charged by information with attempted murder (Pen.Code, §§ 654, 187),1 assault with a deadly weapon (a large rock) by personally inflicting great bodily injury (§§ 245, subd. (a)(1);  12022.7, 667, 1192.7), and robbery (§§ 211, 212.5).   The information alleged that these three charges were committed in furtherance of the purposes of a criminal street gang (§ 186.22, subd. (b)).  In addition, both defendants were charged with the separate substantive offense of committing a crime for the benefit of a criminal street gang (§ 186.22, subd. (c)), and Gardeley was separately charged with possession of cocaine (Health & Saf.Code, § 11350, subd. (a)).  The information further alleged that Gardeley had served a prior prison term and had suffered a prior serious felony conviction within the meaning of sections 667 and 667.5, subdivision (b).2  After declaring itself deadlocked on the robbery charge, a jury found defendants guilty of the remaining counts and enhancements.   In a separate proceeding, the trial court found true the two prior enhancements alleged against Gardeley.   Defendants were sentenced to state prison, Gardeley for 17 years, Thompson for 9 years.   On appeal defendants contend the criminal street gang substantive offense, the gang enhancement, and the great bodily injury finding were not supported by substantial evidence.   They also claim admission of hearsay evidence to support the gang offense and enhancements violated their right to confrontation and that the trial court gave erroneous instructions on motive, great bodily injury, and the gang offense and enhancements.   Gardeley separately contends admission of evidence of Thompson's statements violated his Aranda (People v. Aranda (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265) rights and that the trial court improperly imposed the upper term for attempted murder.

Edward Bruno visited an apartment complex in the area of Farm and Hillsdale in San Jose in the early morning hours of August 4, 1992.   He thought he arrived there about midnight.   Bruno had been drinking and appeared to be intoxicated.   He went behind a carport in an apartment area to urinate.   Bruno was then approached by Gardeley, who shoved him and asked, “What are you doing here, white boy?”

Bruno pushed Gardeley back and punched him.   When Gardeley started forward, someone else hit Bruno from the side.   Bruno was grabbed and shoved, and he tried to run away.   He believed at least three people chased him.   Bruno knocked on a door and yelled for the occupants to call the police.   Three persons, including Gardeley and Thompson, caught up to Bruno.   They hit Bruno to the ground, where they kicked, stomped and punched him.   Bruno remembered being hit on the side of his head.   He believed he was being hit with some kind of a “stick” or “bat” on his thighs and rib cage.   One of the men picked up a stone.   The stone hit the side of Bruno's head and broke into pieces.3


During the beating, Bruno lost $30 from his pocket, a gold chain from his neck, and a watch from his wrist.   Bruno lost his glasses and thongs during the fight, and also lost a yellow T-shirt that he had been wearing when attacked.

Several residents of the apartment complex observed portions of the assault.

At about 2 a.m., someone banged on Steve Percelle's door.   He looked out his window and saw three Black persons next to his car;  they were kicking a white man who was curled in a fetal position on the ground, attempting to cover his head and face.   After the beating, Percelle noticed a yellow T-shirt on his car.   Debra Alcanor saw one of the three attackers pick up a big rock and slam it down, but she did not see it hit the victim.   Alcanor noticed that the person with the rock wore a long three-quarter length black jacket, and that one of the other attackers wore a light-colored T-shirt.   When she saw the victim standing and staggering, he was not wearing a shirt.   Frances Vallejos saw Bruno run and yell for help as three Black men ran after him.   She heard “someone” say he was going to kill “him.”   She noticed that one of the men wore a black long trench coat or jacket and that another man was wearing a Pendleton shirt.4  Shortly after Bruno ran past Vallejos's balcony and out of view, Vallejos saw Buster Hicks drive by in his car looking for Bruno.   Vallejos joined Hicks, and the two briefly drove around until they found Bruno and helped him into the car.   At about this time, the police arrived.

At 2:14 a.m., Officer Garner made a traffic stop of a brown car for speeding and making an illegal U-turn on Capital Expressway.   Before stopping the car, Garner noticed that a white Mustang with four or five people in it had honked its horn and that a passenger in the brown car had started to speak with the Mustang's driver.   When the police began to follow the brown car, the Mustang sped away.

Garner pulled the brown car over.   Thompson was the driver, and Gardeley was a passenger.   Gardeley had a bloody lip and had blood on his T-shirt and upper arm.   Gardeley had been drinking and appeared to be drunk;  he told Garner the police had caused his injury.

Garner found a small plastic baggie containing a white rock-like substance on the ground next to the passenger door of the brown car.   The baggie was not dirty or soiled;  it contained cocaine base of a usable quantity weighing .99 grams.

At trial, Vallejos testified she could not identify defendants as the attackers.   However, she admitted she had made a “positive identification” when she accompanied officers to the area of the police stop of the brown car.   There she identified Gardeley and Thompson as two of the men who had chased Bruno and threatened to kill him, and the two were arrested.   Vallejos informed the officers that “T-bone” (Tyrone Watkins) was one of the men who had been chasing Bruno.   The police transported Vallejos to Watkins's apartment where she identified him.   Vallejos commented that Watkins had changed his clothing since the attack upon Bruno and that Watkins was the person who had had a “steel rod” with him during the assault.

Bruno's T-shirt, which was recovered from the scene, contained a shoe print on the sleeve.   A criminalist determined that that shoe print and a print made by one of Gardeley's shoes had similar tread patterns and that the print on the shirt could have been made by Gardeley's shoe.

Another criminalist determined that:  (1) blood on Bruno's shirt was consistent with his own blood, (2) blood on Gardeley's T-shirt was consistent with his own blood, (3) blood on two rocks found at the scene was consistent with Bruno's blood, and (4) blood found on the instep of Gardeley's left tennis shoe was consistent with Bruno's blood.

Officer Boyd testified that Thompson admitted dealing drugs at the apartment complex area by secreting the drugs in the area and then walking to the street to look for customers.

Boyd was a member of the San Jose Police Department's Gang Unit.   He interviewed Gardeley, Thompson, and Watkins after their arrests.   Gardeley told Boyd he had been a member of the Family Crip Gang since 1983 and that his street name was “Trench.”   Thompson told Boyd he had been a member of the same gang for six or seven years, that his street name was “Capone,” that he had been dealing drugs on Hillsdale the night of the arrest but had buried them before he was arrested, and that his stepbrother, who was also Gardeley's half-brother, had been driving the white Mustang.

Watkins told Boyd he had been a member of the same gang since 1988, and that his gang name was “T-bone.”   The words, “Cricket R–I–P” were tattooed on Watkins hand.   Watkins said the tattoo stood for Johnny Blunt, a Family Crip Gang member killed in Los Angeles.

Qualified as an expert in gangs, Boyd testified that, based upon information he received from members of the Family Crip Gang, fellow officers, probation officers and other law enforcement agencies about the gang's membership and purposes, he had formed the opinion that the “primary purpose or activity” of the Family Crip Gang was “sales of narcotics” and the commission of “acts of violence, including intimidation of witnesses.”

Boyd then described three prior offenses which he believed involved Family Crip Gang members.

According to Boyd, on May 2, 1992, at 3680 Cape Cod Street in San Jose, Mario Phipps and Thompson were involved in a verbal altercation with members of the “415 E.P.A. Killers” gang.   When the E.P.A. Killers “pulled some hand guns,” Phipps and Thompson left but Family Crip Gang members returned, “wearing hoods and carrying shotguns and shot up the apartment complex.”   Boyd rendered an opinion that this was a gang-related incident involving a “turf war” between rival gangs over control of drug dealing in the apartment complex area.   The People introduced a certified copy of Phipps's conviction for shooting at an occupied dwelling.  (§ 246.)

According to Boyd, on July 17, 1989, at 3710 Kollmar Avenue in San Jose, defendant Gardeley, Johnny Blunt, Mitchell Zeigler and Bernard Hudson attempted to coerce an independent drug dealer named Michael Halliburton to sell drugs for their gang.   When he refused, they followed him home, called his mother to the door, and told her to bring Halliburton outside “so they could kill him.”   Halliburton's mother called the police, who arrested them.   Blunt had a sawed-off shotgun in his possession.   At an in-field show up, Halliburton refused to identify the suspects after they threatened him.   Boyd rendered an opinion that this was an act “in furtherance of the Family Crip Gang” because it involved another apartment complex area in which several gang members lived and in which the gang was trying to establish itself as the only drug dealer by trying to “run off their competition.”   The People introduced a certified copy of Gardeley's conviction for being an accessory to a terrorist threat.  (§ 32.)

Again, according to Boyd, on December 1, 1987, officers observed defendant Gardeley and others flagging down cars for sales of narcotics near Nancy Lane in San Jose.   The officers detained Gardeley, who had crack cocaine in his possession.   The People introduced a certified copy of Gardeley's conviction for possession of cocaine.  (Health & Saf.Code, § 11350.)   Boyd's opinion was that this was an act in furtherance of the gang because it was in an apartment complex into which the Family Crip Gang was “moving its territory.”   The gang was taking over the area and the drug sales “would benefit the gang.”

Boyd also testified that the assault on Bruno was a “classic gang case,” because it occurred in a large apartment complex known as a “stronghold” for drug dealing by the Family Crip Gang.   Boyd added that the gang could operate in that area by terrorizing the residents in part by beating up someone “where a lot of people can witness it.”

Gardeley's mother, Joann Jackson, testified that on the night of August 4, she saw Rodney Williams, Dak Jackson, Eshelle and Gardeley leave home in a white Mustang and in Gardeley's girlfriend's brown car.   Williams was wearing Dak's long black Raider's jacket.   Gardeley and Dak were dressed in white T-shirts and Pendletons.   The next morning she saw the jacket covered with blood.   Williams told her he had been in a fight and had hit Bruno on the head with a rock.   She saw blood in the white Mustang.   According to Jackson, when she tried to give this information to Officer Boyd, he told her he was not interested.

Boyd, in rebuttal, testified that neither Jackson nor any other citizen had called to tell him they had information regarding another possible suspect in this case.


I **


Sufficiency of the EvidenceA. Great Bodily Injury Enhancement **B. The Criminal Street Gang Substantive Offense and Criminal Street Gang Enhancements

Each defendant contends his criminal street gang conviction under section 186.22, subdivision (c) and the criminal street gang enhancements under section 186.22, subdivision (b) must be reversed because the evidence offered to prove a second predicate offense required to establish a “pattern of criminal gang activity” (§ 186.22, subd. (e)) is insufficient.   This contention has merit.

“The Legislature was explicit in stating its intent in creating the California Street Terrorism Enforcement and Prevention Act, section 186.20 et seq., ‘․ to seek the eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs.’  [Citation.]”  (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1000, 279 Cal.Rptr. 236.)

To effectuate this intent, the Legislature enacted two types of criminal provisions.   Subdivision (c) of section 186.22 provides in pertinent part that “[a]ny person who is convicted of a ․ felony ․, which is 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, shall be punishable by imprisonment․”  Subdivision (b) of that same section enhances the sentence of “any person who is convicted of a felony which is 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․”

An element of both the enhancement and the substantive offense is that the alleged “criminal street gang” has engaged in a “pattern of criminal gang activity.”  (§ 186.22, subd. (f).)  A pattern of criminal gang activity means the “commission, attempted commission, or solicitation of two or more of the [enumerated crimes].” 6  (§ 186.22, subd. (e).)  One of the offenses must have occurred after the effective date of the chapter (September 23, 1988);  the most recent offense must have occurred within three years of any prior offense;  and the offenses must have been committed on separate occasions, or by two or more persons.

 It is “incumbent upon the prosecution in seeking an enhancement under section 186.22, subdivision (b) [and a conviction under section 186.22, subdivision (c) ], to prove through competent evidence the elements of a ‘criminal street gang’ as set out in the statute, including the offenses necessary to satisfy the pattern requirement.”  (In re Nathaniel C., supra, 228 Cal.App.3d at p. 1004, 279 Cal.Rptr. 236.)  (Emphasis added.)   Furthermore, “it must be shown the predicate crimes were gang related, as section 186.22, subdivision (f) requires the prosecution to prove that the gang has ‘as one of its primary activities' the commission of one or more of the eight enumerated offenses.   To allow otherwise would be to punish defendant for the unrelated actions of people with whom he associated.”  (People v. Gamez (1991) 235 Cal.App.3d 957, 977–978, 286 Cal.Rptr. 894.)

In the instant case, out of the presence of the jury, the prosecutor announced his intention to present evidence of the predicate offenses by questioning an expert witness on gang practices, Officer Boyd, about the facts surrounding the crimes upon which the prosecution intended to rely to establish a pattern of criminal activity.   He argued that the holding in Gamez, supra, 235 Cal.App.3d 957, 286 Cal.Rptr. 894, “stands for in 186.22 prosecutions that a gang expert such as Officer Boyd may use or rely on what would otherwise be inadmissible hearsay of prior gang activities, prior activities of these individuals being involved in prior gang acts, in order to satisfy the requirements of the 186.22 Penal Code section.”   When the expert admitted he had no personal knowledge of the incidents and could only repeat what gang members and other officers had told him and summarize what he had read in police reports, the trial court ruled that “[t]he expert can recite the hearsay that he or she has relied on.   I suggest that's how it would come in.   It cannot be considered for the truth of the matter but can be considered as it related to the expert opinion.”  (Emphasis added.)   When the gang expert resumed his testimony, the court instructed the jury that it was admitting “certain hearsay ․ [b]ut you may not consider those statements for the truth of the matter, but only as they give rise ․ to the expert opinion․  [¶] An expert may consider hearsay in rendering an opinion.   It's for that reason I'm allowing the testimony.”   Outside the presence of the jury, the court explained to the prosecutor that he could prove the predicate crimes by “a combination of the certified prior and factual testimony.”

Before we address the proof problems presented in this case, we briefly explain why the trial court's ruling was correct and, in turn, we review the general implications of such a ruling.

Evidence Code section 801, subdivision (b) permits an expert to use, as a basis of his opinion (1) his own personal observations, (2) his personal knowledge “derived from education, experience, or training,” or (3) “an assumption of facts that find support in the evidence admitted in an action.”   (Jefferson, Cal. Evidence Benchbook (2d Ed.) § 29.3, p. 997.)   In the third basis for expert opinion, where expert opinion testimony is based upon the existence of a series of hypothetical questions, “the expert witness to whom the question is posed does not have personal knowledge of the existence of such facts.”  (Id., at p. 998.)   In that situation, however, the underlying assumed facts must have “a basis in the testimony of other witnesses or in other evidence, such as photographs or material objects․”  (Id., at p. 997.)

 A gang expert can give an opinion as to whether a predicate crime was an act in furtherance of gang activities;  the admissibility of opinion testimony on the ultimate issue is based upon whether such opinion would assist the trier of fact.  (Evid.Code, § 801, subd. (a).)  However, if, as a basis for that opinion, the expert is not relying on facts he had observed, or of which he had personal knowledge, or that were given to him as an assumption from evidence introduced in the case, his testimony only can be elicited in the form of hypothetical questions.   That opinion, in turn, “stand [s] or fall [s] depending, initially, upon whether the trier of fact finds the assumed facts to be true or false from the evidence introduced to establish the existence of such facts.”  (Emphasis added.)  (Jefferson, supra, at § 29.3, pp. 998, 1018;  see also Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 69 Cal.Rptr. 561, 442 P.2d 641;  Board of Trustees v. Porini (1968) 263 Cal.App.2d 784, 70 Cal.Rptr. 73.)

 In light of the above, we now explain our conclusion that a second predicate offense never was proved by competent evidence in this case.

Assuming arguendo that evidence introduced regarding defendants' participation in the current offense of an assault with a deadly weapon upon Bruno qualifies as a section 186.22, subdivision (e) offense for the purpose of establishing a “pattern of criminal gang activity” (In re Jose T. (1991) 230 Cal.App.3d 1455, 1462, 282 Cal.Rptr. 75), it constitutes only one of the two offenses required to establish a pattern of criminal gang activity.

In an attempt to prove a second predicate offense, the prosecutor introduced certified copies of three prior convictions, only one of which (shooting into an inhabited dwelling) is among the enumerated predicate offenses set forth in section 186.22, subdivision (e).   However, the prosecutor relied solely upon the hearsay testimony of the gang expert to prove that two of the convictions encompassed conduct which constitutes a section 186.22, subdivision (e) offense and that all three offenses were gang related.   The prosecutor chose to rely solely upon such hearsay testimony despite the explicit ruling by the trial court that such testimony was inadmissible to prove the truth of the matter asserted.   As we explain in more detail below, the evidence offered to establish a second predicate offense was based upon incompetent hearsay evidence.

On appeal the People argue there is substantial evidence to support the criminal street gang offense and enhancements based on the assault with a deadly weapon conviction in the instant case in conjunction with “the evidence and conviction submitted on the commission of the section 186.22 offense of shooting at an inhabited dwelling․”  However, the only evidence the prosecution presented to prove this predicate offense was a certified copy of Mario Phipps's prior felony conviction for a violation of section 246 (shooting into an inhabited dwelling on May 2, 1992) and Officer Boyd's hearsay testimony describing the facts surrounding that shooting.   Boyd specifically admitted he had no personal knowledge of the incident and only could repeat what Phipps, investigators assigned to that case, and people in the area in question had told him.   Boyd offered hearsay testimony of a suspected dispute between the Family Crip Gang and a gang called the “415 E.P.A. Killers.”   He provided hearsay testimony that on May 2, 1992, defendant Thompson and Phipps had a verbal altercation with members of the second gang, that members of the second gang pulled out some handguns, that Thompson and Phipps left, that Family Crip members returned later wearing hoods and carrying shotguns, and that Family Crip members then shot up the apartment complex.   Boyd then rendered an opinion that the May 2, 1992, incident was “to further the Family Crip Gang” in its attempt “to control a few block area of an apartment complex area where drug dealing was taking place․”

While the certified copy of the abstract of judgment showing the conviction and sentence imposed was prima facie evidence of the judgment of conviction sufficient to prove the conviction (People v. Hill (1967) 67 Cal.2d 105, 121–122, 60 Cal.Rptr. 234, 429 P.2d 586;  People v. Brucker (1983) 148 Cal.App.3d 230, 241, 195 Cal.Rptr. 808), such documentary evidence was not proof of the facts underlying that conviction.   The People concede as much when they argue that “[t]he certified copy of the conviction, combined with the recitation of the facts surrounding the crime, constituted substantial proof of the commission of the [section 246] predicate offense.”   The People ignore that Officer Boyd's recitation of the facts surrounding this crime was hearsay admitted not for the truth of the matter asserted but merely as the basis for expert opinion testimony.   The People further ignore that, because the factual assumptions upon which Boyd's opinion rested were not based upon personal knowledge, those facts had to be proved by competent evidence elicited by other witnesses and/or physical evidence.

Absent Boyd's hearsay testimony which was not admitted for the truth of the matter asserted, there is no competent evidence in the record that Phipps's conviction for shooting into an inhabited dwelling was gang related.  (See People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738;  In re Leland D. (1990) 223 Cal.App.3d 251, 259, 272 Cal.Rptr. 709.)

The People next concede that defendant's prior conviction for possession of a controlled substance does not establish a section 186.22, subdivision (e) offense.   They argue, instead, that a section 186.22, subdivision (e) offense was established by Boyd's hearsay testimony that defendant and others were flagging down cars to sell drugs.   For the reasons stated above, this hearsay, while admissible as a basis for expert opinion testimony, does not constitute competent evidence that defendant in fact possessed a controlled substance for sale within the meaning of section 186.22, subdivision (e)(4).

Although the People on appeal make no mention of one of the offenses presented at trial, we simply note that defendant's conviction for being an accessory to a terrorist threat (§ 32) similarly is not a section 186.22, subdivision (e) offense and that any hearsay which suggested commission of an offense of intimidating a victim or witness (§ 186.22, subd. (e)(7)) does not constitute competent evidence that defendant or other gang members in fact intimidated a victim or witness.

Unlike the prosecutor in the instant case, the court in Gamez recognized that “ ‘ “[w]hile an expert may state on direct examination the matters on which he relied in forming his opinion, he may not testify as to the details of such matters if they are otherwise inadmissible.  [Citations.]” ’ ”  (235 Cal.App.3d at pp. 968–969, 286 Cal.Rptr. 894.)   In Gamez, the court specifically found that the officers' opinions were based in part “upon personal observations and experience” (id., at p. 967, 286 Cal.Rptr. 894), the officers “did not simply regurgitate that which they had been told” (id., at p. 968, 286 Cal.Rptr. 894), and their opinions were “sufficiently corroborated by other competent evidence, both physical and testimonial.”   (Id., at p. 969, 286 Cal.Rptr. 894.)   It was only in that context that the Gamez court noted that “[t]he certified copies of the convictions, combined with the recitation of the facts surrounding those crimes, supplied proof of the ‘who, when, where and under what circumstances ․’ [and that] [t]he predicate offenses were established by specific expert testimony and certified conviction records, not by ‘vague, secondhand testimony ․,’ as occurred in In re Nathaniel C, supra, 228 Cal.App.3d at page 1003, [279 Cal.Rptr. 236].”  (Id., 235 Cal.App.3d at p. 978, fn. 8, 286 Cal.Rptr. 894.)

Here, based upon an apparent misreading of footnote 8 in the Gamez opinion, the prosecutor attempted to prove the existence of such facts with expert opinion hearsay testimony rather with competent testimonial and/or physical evidence.   That portion of Boyd's testimony regarding the facts underlying the convictions not elicited in the form of a hypothetical question was “secondhand testimony [which] cannot constitute substantial evidence that the required predicate offense by a gang member occurred.  [Citation.]”  (In re Nathaniel C., supra, 228 Cal.App.3d at p. 1003, 279 Cal.Rptr. 236.)   That portion of Boyd's opinion testimony on the same subject which was elicited in the form of hypothetical questions cannot stand because no competent evidence was ever introduced to establish the existence of the facts upon which the hypothetical questions were based.  “While experts may offer opinions and the reasons for their opinions, they may not under the guise of reasons bring before the trier of fact incompetent hearsay evidence.  [Citations.]”  (Id., at pp. 1003–1004, 279 Cal.Rptr. 236;  see also People v. Gamez, supra, 235 Cal.App.3d at p. 969, 286 Cal.Rptr. 894.)

Given that Officer Boyd had no personal knowledge of the three incidents about which he testified and only repeated what others had told him about those incidents, our case is factually more similar to Nathaniel C. than to Gamez.   Here, as in Nathaniel C., the prosecution did not meet its burden of proving “through competent evidence the [required] elements of a ‘criminal street gang’ as set out in the statute, including the offenses necessary to satisfy the pattern requirement.”  (228 Cal.App.3d at p. 1004, 279 Cal.Rptr. 236.)   Because the record does not contain substantial evidence to support the essential “pattern of criminal gang activity” element of a criminal street gang as required by section 186.22, subdivisions (e) and (f), the gang participation substantive offense and the gang-related enhancements must be reversed.

Since we reverse the criminal street gang substantive offense and the gang related enhancements based upon insufficiency of the evidence, defendants' remaining attacks on the validity of their section 186.22, subdivision (c) conviction and section 186.22, subdivision (b)(1) enhancements need not be addressed.


Sentencing ***


The conviction of each defendant under Penal Code section 186.22, subdivision (c) and the findings on the criminal street gang enhancements under Penal Code section 186.22, subdivision (b) are reversed for insufficiency of the evidence.   The cause is remanded for resentencing.   The judgment is affirmed in all other respects.


1.   All further statutory references are to the Penal Code unless otherwise specified.

2.   Tyrone Dermont Watkins, who had been charged in the same information with the same offenses as defendant Thompson, pleaded guilty to assault with a deadly weapon and committing a crime for the benefit of a street gang.   Watkins is not a party to the present appeal.

3.   Bruno was taken to a hospital where he received 18 to 20 stitches for cuts on the right side of his forehead and the front of his head.   The medical reports from the hospital reveal that Bruno also suffered a “corneal abrasion” and “multiple injuries consisting of contusions (bruises) and abrasions (scrapes)” and that he was “mild[ly] to moderately intoxicated” when examined at the hospital.

4.   The only clothing Bruno could recall his attackers wearing was a “white T-shirt and a Raider's jacket.”

FOOTNOTE.   See footnote *, ante.

6.   Those criminal acts are assault with a deadly weapon or by means of force likely to produce great bodily injury, robbery, homicide, drug-selling or related offenses, shooting at an inhabited dwelling or occupied motor vehicle, arson, and the intimidation of witnesses and victims.

FOOTNOTE.   See footnote *, ante.

COTTLE, Presiding Justice.


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