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Name: In re Daniel C.
Case #: A129408
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 05/26/2011

A gang expert’s opinion that shoplifting alcohol would be gang related as “putting in work” for the gang is insufficient to invoke the gang enhancement. Daniel faced an allegation of robbery with personal use of a dangerous and deadly weapon, infliction of great bodily injury, and that the robbery was committed for the benefit of, at the direction of, and in association with a criminal street gang pursuant to Penal Code section 186.22, subdivision (b)(1)(C). Daniel was present in a store with two other gang members and they were all wearing red when they came to the attention of the loss prevention manager. Daniel remained in the store after the others left. As he was leaving with a bottle of alcohol the manager interceded and Daniel swung the bottle at him, breaking the bottle and injuring him. Daniel escaped, but was later detained in a truck along with the gang members who had been present in the store. A gang expert testified at the jurisdictional hearing that violent crimes benefit the perpetrator by raising his level of respect within the gang. Also, if Daniel had successfully shoplifted the alcohol, it would have been for the benefit of the gang as well as Daniel’s status within it, because it would have shown he was “putting in work” for the gang. In reviewing the evidence to determine if substantial evidence supports the gang enhancement, there was no indication that any of the others were charged with any crime in connection with Daniel’s theft. It could not be inferred from the circumstances of the crime alone that his purpose in committing it was to promote, further, or assist criminal conduct by gang members. The expert’s comment about “putting in work” did not draw any distinction between crimes in general and crimes carried out with the specific intent to promote, further, or assist gang activity.