Prosecution was not required to prove connection between gang subset (FMT) and the larger Norteño gang where there was sufficient evidence that defendant conspired to commit murder to benefit his subset, FMT, not just Norteños generally. A jury convicted Tovar of first degree murder and conspiracy to commit murder. It found true a weapon use enhancement and that Tovar committed the conspiracy to benefit a criminal street gang (Pen. Code, § 186.22, subd. (b)). On appeal, Tovar argued the evidence did not support the gang enhancement. Held: Affirmed. Penal Code section 186.22, subdivision (b) provides a sentencing enhancement where a felony is committed for “the benefit of, at the direction of, or in association with any criminal street gang.” A criminal street gang is defined as any “ongoing organization, association, or group of three or more persons” that shares a common name or identifying symbol, has as one of its primary activities the commission of certain enumerated offenses, and whose members committed or attempted to commit specific predicate crimes. Relying on People v. Prunty (2015) 62 Cal.4th 59, Tovar argued the prosecution did not prove a connection between his subset gang (FMT) and the larger umbrella gang (Norteños). However, proof of such a nexus is not required when a defendant commits a crime to benefit a particular subset gang and the prosecution can show the subset satisfies the primary activities and predicate offenses requirements. There was testimony that FMT is a Norteño subset gang, of which Tovar is an admitted member. A gang expert’s testimony, along with other evidence, provided substantial evidence that Tovar conspired to commit murder to benefit FMT in particular, not just the Norteños generally. His membership in FMT is substantial evidence that he committed the crime to benefit that subset, as opposed to a larger gang.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A145498.PDF