Jury’s true finding on gang enhancement was supported by substantial evidence showing that a larger gang was comprised of two subsets, each of which committed a predicate felony. Garcia and Jones were involved in a fight which resulted in the shooting of two bystanders. The jury found Garcia guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(2)) and found true gang (Pen. Code, § 186.22, subd. (b)(1)(C)), gun use (Pen. Code, § 12022.5, subd. (a)) and infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)) enhancements. On appeal Garcia challenged the proof of a “pattern of gang activity” because the two predicate offenses were each committed by different gangs, which were not connected to each other nor subsets of a larger, i.e., single, criminal street gang. Held: Affirmed. Any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the intent to promote, further or assist in criminal conduct by gang members, is subject to enhanced penalties (Pen. Code, § 186.22, subd. (b)(1)). A “criminal street gang” is “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as its primary activities” the commission of one or more enumerated criminal acts, has a common identifying sign or symbol, and whose members engage in criminal activity. Here, the prosecution’s expert provided testimony that the two subsets “backed each other up,” acted to protect the same territory and had an organizational connection with each other and with the larger group that Garcia allegedly assaulted the victims to benefit. This was sufficient under People v. Prunty (2015) 62 Cal.4th 59.
The evidence was sufficient to prove that defendant committed the assaults in association with a criminal street gang. Garcia argued there was insufficient evidence to show he committed the crimes for the benefit of a criminal street gang. Penal Code section 186.22, subdivision (b)(1) describes what the prosecution must prove in the disjunctive; that the crime must be “committed for the benefit of, at the direction of, or in association with any criminal street gang.” Therefore, even if the evidence did not prove Garcia committed the assaults for the benefit of the larger gang, it proved that he and Jones “came together as gang members [to commit the assaults].” Thus, he committed the crimes in association with the gang.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B266889.PDF