Trial court prejudicially erred by denying defendants’ Penal Code section 995 motion to dismiss gang participation charge (Pen. Code, § 186.22, subd. (a)) and gang enhancement (§ 186.22, subd. (b)). A complaint charged Villarreal and her boyfriend, Ramirez, with attempted murder and assault with a deadly weapon with gang enhancements. They were also charged with active gang participation. At the preliminary hearing, a police officer opined that Ramirez was a Sureño and that Villarreal was a Sureño associate, and that the crimes were gang related. Prior to trial, the defendants moved pursuant to section 995 for dismissal of the gang charge and enhancement based on insufficiency of the evidence. The trial court denied the motion. The jury convicted defendants of the attempted murder and assault, but acquitted them of the gang charge and found the gang enhancement not true. Defendants appealed. Held: Reversed. The Court of Appeal agreed that the preliminary hearing evidence was insufficient to support the gang charge and enhancement for a number of reasons. The prosecution failed to adequately show that the Sureños are a single criminal street gang (Pen. Code, § 186.22, subd. (f)) under the framework in People v. Prunty (2015) 62 Cal.4th 59. Even assuming the Sureños are a criminal street gang, the evidence was insufficient to support the substantive gang offense because there was insufficient evidence that Ramirez and Villarreal were active participants in the Sureño gang with any knowledge at all about the activities of the Sureños. The evidence was also insufficient to support the gang enhancement because the evidence did not support the inference that the crime was gang related—no gang signs were flashed, no gang names were called out, and no gang attire was worn, and the victims were not gang members. The error in failing to dismiss the gang charge and enhancement required reversal because the defendants’ credibility, which was critical to their defense, was adversely impacted by the gang evidence.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/G052144.PDF