Shooter’s validated membership in a gang is insufficient to support enhancement allegation that he committed the offense for the benefit of the gang. Based on a shooting at a party, Perez was found guilty of four counts of attempted murder with premeditation and four counts of assault with a firearm. The jury found gun use (Pen. Code, § 12022.53, subd. (d)), gang enhancement (Pen. Code, § 186.22, subd. (b)(1)) and great bodily injury (Pen. Code, § 12022.7, subd. (a)) allegations true. On appeal, Perez challenged the sufficiency of the evidence to support the gang enhancement. Held: Gang enhancement reversed. There are two prongs to the gang enhancement: (1) that the underlying felonies were committed for the benefit of, at the direction of, or in association with a criminal street gang, and (2) the crimes were committed with the specific intent to promote, further, or assist in criminal conduct by gang members. Not every crime committed by a gang member is gang-related. Here, the only evidence that connected the shootings to the VGLN (Varrio Garden Land Nortenos) gang is that Perez is a tattooed, validated gang member and there were other Hispanics at the party, some of whom had tattoos. There was no evidence these other people were gang members. There was no proof the shooting was done in retaliation for prior gang activity, or even occurred in gang territory. The prosecution gang expert’s testimony that the shooting was intended to benefit the gang by instilling fear in others was a generalization untethered to specific evidence of gang activity. “The evidence consists only of a gang member committing a violent crime alone.” There was insufficient evidence to support the gang enhancement.

The life sentences for the premeditated attempted murders must be reversed because the prosecution failed to plead and prove premeditation as required by Penal Code section 664. Attempted murder is punishable with a term of five, seven, or nine years. However, if the prosecution pleads and proves the offense was premeditated and deliberate, the term is life in prison. Here, the prosecution failed to allege premeditation as to the attempted murders. The jury verdict found Perez guilty of “first degree attempted murder” and he was given a life sentence. Perez argued the life sentence was unauthorized because premeditation was not charged in the information. The Attorney General argued this objection was forfeited by defendant’s failure to raise the issue in the trial court. However, the requirement under section 664 that premeditation be charged and found true is required to give a defendant fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes. The only discussion in this case regarding premeditation was the prosecutor’s brief allusion to the possibility of an enhanced sentence for premeditated attempted murder, during a discussion of unrelated jury instructions. The record is unclear whether Perez was present for this discussion. This is insufficient to impart the notice required by due process. The life terms were unauthorized and there was no forfeiture of the issue.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C078452.PDF