A gang expert can rely on hearsay such as police reports and departmental reports and notices to support his opinion as to the primary activity of a street gang. Appellant was convicted of carjacking, street terrorism, and other offenses. The jury also found true a gang enhancement. At trial, evidence was presented that two men, one holding a gun, demanded the victim give them his money and car. Castillo, the gang expert, testified as to the Highland Street gang and its primary activities, possession of narcotics for sale and auto theft. Although Castillo did not know appellant personally, he checked appellant’s background, and, on that basis, opined that appellant was a gang member. Based on a presented hypothetical, he also opined that the carjacking was done for the benefit of Highland Street. On appeal, appellant contended that there was insufficient evidence to support the conviction for the substantive gang offense or the enhancement, because the only evidence was Castillo’s testimony which was based on inadmissible hearsay. The court rejected appellant’s position, observing that the reports Castillo relied on were the types of documents an expert may reasonably rely on as foundation for the expert opinion.
Evidence of more than one gang member in the commission of the felonious criminal conduct is not required to establish the substantive street gang offense. Appellant also argued that because there was no evidence that the co-defendant was a gang member, there was insufficient evidence to support the conviction. Rejecting the majority opinion in People v. Rodriguez (2010) 188 Cal.App.4th 722, the court interpreted the language of the statute to find that appellant’s actions, committed without another gang member present, promoted or furthered the gang’s felony conduct, and there was no need for the participation or aid of other gang members.
Penal Code section 186.22, subdivision (b) requires conviction of any felony. As to the gang enhancement, appellant contended that since carjacking was not a primary activity of the Highland Street, there was insufficient evidence to support the enhancement conviction. The court disagreed, observing that the statute merely requires commission of any felony for the benefit of any criminal street gang, and there is no requirement that the felony committed be one constituting the gang’s primary activity.