Sufficient evidence established a “criminal street gang” where the perpetrators of the instant offense and predicate offenses were all members of the same gang and defendant was either a member or associate of that gang. Ewing and three others were involved in a drug rip-off robbery, during which a victim was shot but survived. He was convicted of numerous offenses and a number of enhancements, including an allegation that he shot at a vehicle for the benefit of a gang (Pen. Code, § 186.22, subd. (b)(4)), were found true. On appeal Ewing challenged the sufficiency of the evidence of the gang enhancement and a substantive gang offense. Held: Affirmed. The gang enhancement charged in this case and the substantive gang offense (Pen. Code, § 186.22, subd. (a)) require the prosecution to prove the existence of a “criminal street gang,” which requires proof that members of the gang either collectively or individually have committed or attempted to commit certain predicate offenses (Pen. Code, § 186.22, subd. (f)). Here, the prosecution sought to prove that Ewing was actively participating in or associating with the Norteño gang. The evidence showed that the gang members who committed the predicate offenses were associated with each other, with the Norteño gang, and with the higher Nuestra Familia prison gang. Ewing, along with others who were Norteños, sought to promote the gang by extending its stronghold to Redding. In People v. Prunty (2015) 62 Cal.4th 59, the Supreme Court considered the proof required to establish the existence of a criminal street gang when the prosecution’s evidence relies upon conduct committed by one or more gang subsets. The holding in Prunty does not apply here because all of the perpetrators were Norteño gang members. Even if Prunty does apply, the evidence was sufficient to prove commission of the predicate offenses because there was evidence that connected the Norteños’ activities to one another and to the higher Nuestra Familia prison gang.
The evidence was sufficient to prove the gang enhancement. Ewing claimed the evidence was insufficient to prove that he shot into an occupied vehicle for the benefit of, at the direction of, or in association with a criminal street gang. The evidence showed that Ewing agreed to assist a high ranking Norteño gang member and his associates in committing a drug rip-off robbery using an assault weapon, to further the gang’s goal of expanding to Redding. The gang expert testified that such offenses are sanctioned by the higher gang and benefit the gang by generating money and creating fear among rival gangs in the area.
The gang expert impermissibly opined that defendant shot at the occupied vehicle in order to promote the Norteño gang, but the error was harmless. Ewing correctly claimed that certain questions directed to the prosecution gang expert improperly solicited an opinion regarding Ewing specifically, rather than a hypothetical person. An expert may give testimony in the form of an opinion (Evid. Code, §§ 720, 801), and the subject of gang culture and habits is the proper subject of expert testimony. However, an expert may not opine that a particular defendant committed an offense for a gang purpose. The error was harmless though because the expert was also asked a hypothetical question that elicited the same opinion in the correct form.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C072783.PDF
