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Name: People v. Galvez
Case #: B222672
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 05/25/2011

A challenge to the sufficiency of the evidence to support a gang enhancement pursuant to Penal Code section 186.22, subdivision (b) will not prevail when there is expert opinion testimony, with an underlying evidentiary foundation, that the crime of dissuading a witness was for the benefit of, or at the direction of, or in association with the gang. The decision follows People v. Albillar (2010) 51 Cal.4th 47, in holding there was sufficient evidence. An off-duty officer witnessed an assault by three gang members and was using his cellphone to make a report when he was asked if he was calling the police. Instead of taking off, the three turned their assault on the officer and then one of them took the cellphone before running away. Taking the phone was to stop the reporting of a crime that was committed by gang members within their turf to promote fear in the community.
Conviction of both robbery and dissuading a witness, in the circumstances, were incidental to each other and the sentence for robbery had to be stayed pursuant to Penal Code section 654. The witness dissuasion was the longest potential term because the gang enhancement resulted in an indeterminate term of life imprisonment with a minimum term of seven years.