Gang enhancement stricken because prosecution failed to show that two Norteño gang subsets had an associational or organizational connection that united them, as required by People v. Prunty (2015) 62 Cal.4th 59. A jury found Nicholes guilty of attempted voluntary manslaughter and assault with a firearm. It also found that he personally used a gun in the commission of the crimes and that he committed the offenses for the benefit of a criminal street gang. On appeal, Nicholes challenged the sufficiency of the evidence of the gang enhancement based on People v. Prunty. Held: Reversed. In Prunty, the California Supreme Court held that, “where the prosecution’s case positing the existence of a single ‘criminal street gang’ for purposes of section 186.22(f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets.” Here, the prosecution’s gang expert testified that the Norteños “are an umbrella organization and that there are different gangs or levels of gangs within them.” Defendant was a member of an Oak Park, Sacramento subset of the Norteños. The predicate offenses for the gang enhancement, as to which the expert testified, were apparently committed by a Norteño subset from Sutter County. However, the expert did not provide evidence of an associational or organizational connection among the subsets or between the Norteños and the subsets. Nor was there an explanation regarding how any such relationships connected with the predicate crimes committed by the Sutter County subset. Although Prunty provided examples of how the prosecution could prove that gang subsets are connected, the gang evidence in Nicholes’ trial was not sufficient under any of these examples.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C077098.PDF