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Name: People v. Ramon
Case #: F054603
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 07/07/2009

A gang expert’s opinion that a defendant committed a crime for the benefit of a gang, without sufficient facts to support such an opinion, is not substantial evidence to support a section 186.22, subdivision (b)(1) gang enhancement. Appellant was a gang member, who was stopped while driving a stolen car with another gang member in the gang’s territory. He was convicted of receiving a stolen vehicle, and also of firearm possession offenses for a gun under the driver’s seat. A gang expert answered a hypothetical question by saying the crimes would be “a huge benefit in furtherance of the gang,” and testified the stolen vehicle and unregistered firearm were the tools the gang needed to commit other crimes to further the gang. The Court of Appeal reversed the gang enhancement, following People v. Killebrew (2002) 103 Cal.App.4th 644 and In re Frank S. (2006) 141 Cal.App.4th 1192. While it was possible that the crimes were committed to benefit the gang, that was merely one possible scenario, and mere possibilities are not substantial evidence. The expert’s opinion was nothing more than how he thought the case should be resolved, which was improper. The mere fact that appellant was with another gang member in gang territory did not establish specific intent to benefit the gang.
Multiple convictions under more than one provision of Penal Code section 12031, subdivision (a) are not permitted for a single act of illegally carrying a loaded firearm. Appellant was convicted of both possession of a loaded firearm while a member of a criminal street gang (Pen. Code, sec. 12031, subd. (a)(2)(C)), and possession of a loaded firearm for which he was not the registered owner (sec. 12031, subd. (a)(2)(F)). Appellant argued that only one of those two convictions was permitted in light of People v. Muhammad (2007) 157 Cal.App.4th 484, which reached a similar conclusion for stalking crimes under Penal Code section 646.9. The Court of Appeal agreed, holding that the provisions of section 12031, subdivision (a)(2) do not define separate offenses, but are merely alternative penalty provisions for the same offense defined by section 12031, subdivision (a)(1). Appellant violated section 12031, subdivision (a)(1) only once. Accordingly, the conviction under section 12031, subdivision (a)(2)(F) was vacated.