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Name: Briceno v. Scribner
Case #: 07-55665
Court: US Court of Appeals
District 9 Cir
Opinion Date: 02/23/2009

Evidence that a crime was committed with a fellow gang member, alone, is insufficient to prove the crimes were gang related. Appellant and his fellow gang member committed four robberies on Christmas Day 2000, the robberies resulting in minimal proceeds. At trial, Briceno stipulated that Hard Times was a street gang and that on 12/25/2000, he actively participated in the Hard Times criminal street gang with knowledge that members have engaged in criminal gang activity, as defined in Penal Code section 186.22. He specifically did not stipulate that he aided and abetted another gang member on that date. An expert testified generally as to the gang but provided no testimony establishing Briceno’s specific intent in committing the robberies. Briceno was convicted of the robberies with the gang enhancement. The federal appellate court found that the evidence adduced at trial was insufficient to find proof of the enhancement beyond a reasonable doubt as there was no showing that Briceno committed the crimes with the specific intent to promote the gang — mere membership in a gang alone is insufficient to prove that the crime was for the gang’s benefit. (Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099.) The court ordered the habeas petition as to imposition of the enhancements granted.