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Name: People v. Soriano
Case #: G058363
Court: US Court of Appeals
District 4 DCA
Division: 3
Opinion Date: 06/08/2021

Gang expert opinion based on mere speculation as to probabilities, rather than reasonable inferences drawn from observable facts, does not provide substantial evidence to support a gang enhancement. Soriano, a gang member, was walking in his gang’s territory with an associate member when they both were detained. A blade was located in Soriano’s pants. He was charged with carrying a concealed dirk or dagger and a gang enhancement was alleged. At trial, a gang expert testified that carrying a concealed weapon was a common crime committed by Soriano’s gang. The expert further testified that gang members “typically” let other members know they have a weapon, that weapons are carried to facilitate the commission of crimes, and opined that a “hypothetical” gang member possessing a concealed knife under the same circumstances of this case would do so with the intent to promote criminal conduct by gang members. The jury found Soriano guilty as charged. He appealed. Held: Gang enhancement reversed. Under Penal Code section 186.22, subdivision (b), a defendant who commits a felony in association with any criminal street gang with the intent to promote the criminal conduct of gang members is subject to enhanced sentencing. While the opinion of a gang expert alone may provide substantial evidence to sustain the gang enhancement, the gang expert’s opinion must be “of ponderable legal significance or of solid value.” Here, there was no evidence that Soriano or the associate were displaying gang signs or gang clothing when they were detained, or that Soriano’s gang tattoo was visible. The fact they were detained in gang territory was not particularly probative because it was where they both lived. Beyond the officer’s opinion, there were no facts establishing Soriano had the specific intent to promote the gang by carrying the knife. Moreover, the officer’s opinion was based on speculation that Soriano informed his companion of his knife. Applying Conservatorship of O.B. (2020) 9 Cal.5th 989, the court concluded the gang expert’s testimony “on the whole lacks ‘solid value’ or ‘ponderable legal significance.'” [Editor’s Note: The court did not decide Soriano’s arguments regarding fines and fees, concluding that he could raise any objections at the time of his new sentencing hearing. Conduct in this case occurred in 2018, but it is unclear when the sentencing occurred.]

The full opinion is available on the court’s website here: