Filed 8/12/15 P. v. Nicholson CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067712
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF147696A)
                   v.

DESHAUN LEROY NICHOLSON,                                                                 OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Michael E.
Dellostritto, Judge.
         Benjamin Owens, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A.
Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         A jury convicted Deshaun Nicholson of grand theft and found the offense to be
gang-related for purposes of Penal Code section 186.22, subdivision (b). Nicholson, who
had a documented history of gang affiliation, was caught on video stealing an article of
jewelry. Although he acted alone in committing the offense, Nicholson was seen in the
company of two unidentified individuals shortly before and after the theft occurred. At
trial, the prosecution’s gang expert opined, in response to a hypothetical question
mirroring these facts, that the perpetrator’s companions were fellow gang members. The
expert also theorized that the perpetrator stole the jewelry with the intention of selling it
and using the proceeds to fund narcotics or firearms purchases, which would be
beneficial to the gang.
       Nicholson presents two arguments on appeal. First, he contends that the opinions
of the prosecution’s gang expert do not constitute substantial evidence in support of the
gang enhancement. Second, he asserts that the trial court abused its discretion by
allowing evidence of prior robbery offenses to be admitted for the purpose of establishing
his membership in a criminal street gang. We reject the latter claim, but agree that the
evidence in the record is insufficient to support the jury’s verdict on the special
enhancement allegation. We affirm appellant’s conviction of the substantive offense,
reverse the enhancement finding, and amend the judgment accordingly.
                  FACTUAL AND PROCEDURAL BACKGROUND
       The victim in this case is Victor Amezcua, the owner of a jewelry store located
inside the Golden State Mall in Bakersfield. On March 26, 2013, Mr. Amezcua observed
three African-American males stop in front of his store to look at some earrings in a
display case. Each of the men stood out to him for a different reason. One member of
the group was wearing pajama pants and had a slim build. Another individual was
muscular and had visible tattoos on his forearms. The third person had a long beard and
wore a red hat.
       According to Mr. Amezcua, the tattooed individual came into the store and had a
brief conversation with his employee as the other men walked away. The employee,
Kenia Garcia, remembered two people entering the store and asking about the cost of a
necklace. When she quoted a price of $1,385, they said that they would come back later.

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The men left together and went into a sporting goods store, but one of them returned by
himself a short while later.
          Surveillance cameras captured footage of the tattooed man alone in the jewelry
store. He reportedly asked Ms. Garcia if he could take a closer look at a necklace, and
she replied that her boss would have to assist him. After being informed of the request,
Mr. Amezcua began dealing with the patron directly. Following a discussion about the
price of the jewelry, the person asked to see a watch located in a display case near the
entrance to the store. As Mr. Amezcua bent down to retrieve the watch, the tattooed man
reached out and ripped a gold chain and medallion off of his neck. Mr. Amezcua chased
the thief out of the mall and saw him enter a vehicle that was occupied by the man in the
pajama pants and the bearded individual with the red hat.
          The stolen necklace had an estimated value of $2,500. In addition to filing a
police report, Mr. Amezcua engaged in his own efforts to find the thief. While searching
through a website dedicated to identifying and locating “Bakersfield’s Most Wanted,” he
came across a photograph of Nicholson and recognized him as the perpetrator.
Mr. Amezcua informed police of his discovery, which ultimately led to Nicholson’s
arrest.
          The Kern County District Attorney charged Nicholson by information with felony
grand theft from the person (Pen. Code,1 § 487, subd. (c)). The charge included an
enhancement allegation that the crime was committed with the specific intent to promote,
further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)). It was
further alleged that Nicholson had suffered a prior strike conviction (§§ 667; 1170.12)
and had served a prior prison term within the meaning of section 667.5, subdivision (b).
The case went to trial in June 2013.



          1   All further statutory references are to the Penal Code unless otherwise indicated.


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       The prosecution’s case-in-chief included testimony from Mr. Amezcua and
Ms. Garcia. The two eyewitnesses testified to the facts summarized above and identified
Nicholson in court as the perpetrator. The jury was also shown surveillance footage of
the incident, which is described in the record as being of sufficient quality to establish the
thief’s skin color and the presence of tattoos on his arms. Portions of the video contained
images of the two unidentified companions.
       Officer Pete Beagley of the Bakersfield Police Department provided expert
testimony regarding a local criminal street gang known as the West Side Crips. In his
experience, the gang’s primary activities consist of murder, assault with firearms and
other deadly weapons, robbery, grand theft, and narcotics sales. Members traditionally
identify with the colors turquoise and black.
       Officer Beagley opined that the defendant was an active member of the West Side
Crips at the time of the charged offense. His opinion was based on evidence that
Nicholson had admitted his membership to police on several prior occasions. The expert
also cited his understanding and belief that various tattoos on Nicholson’s arms contained
gang-related messages and symbols. Over the objections of defense counsel, Officer
Beagley was permitted to further rely upon evidence that Nicholson had previously been
arrested with other members of the West Side Crips in connection with two armed
robberies.
       None of the trial testimony indicated that the people in the surveillance video were
dressed in the traditional West Side Crip colors of turquoise and black, but the thief had
apparently worn a blue shirt, which Officer Beagley found to be “significant.” He did not
elaborate on this opinion. The expert also noted that one of the thief’s companions had
been wearing a hat with the letter “W” on it, which may have been the emblem of the
Washington Nationals baseball team. Since W is “one of the common signs or symbols
for the West Side Crips,” the insignia on the man’s hat was important to Officer
Beagley’s analysis of the video. Furthermore, based on his training and experience, he

                                              4.
knew that members of the West Side Crips generally prefer to commit crimes with fellow
gang members rather than with non-gang members.
       After eliciting Officer Beagley’s opinions concerning Nicholson’s gang ties, the
prosecutor posed the following hypothetical scenario and question: “[Assume that] three
active members or associates of the West Side Crips criminal street gang go into a
jewelry store. One is wearing a hat with a W on it. They look at merchandise. Two of
the individuals in the group leave the store and wait in a vehicle. The one remaining
individual steals a necklace worth $2,500 from the owner of the jewelry store. The
individual who steals the necklace is wearing blue jeans and a blue t-shirt and is
displaying gang tattoos. After he steals the necklace, he gets into a vehicle with the other
two people he had entered the jewelry store with and they drive away. Do you have an
opinion as to whether or not the crime or crimes in this particular hypothetical were
[committed] for the benefit of, at the direction of, or in association with the West Side
Crips criminal street gang?”
       Officer Beagley opined that the hypothetical facts were indicative of a crime
committed in association with, and for the benefit of, a criminal street gang. When asked
to explain his opinion regarding the associative component of the offense, he replied,
“The basis of that is that [the perpetrator] is with two other West Side Crips, one of which
is actively displa[y]ing a W on his hat promoting West Side Crips. And then also having
numerous tattoos on his forearms, that would be significant to me, West Side Crips
tattoos, and then promoting the West Side Crips again.”
       As for the crime being committed to benefit a gang, Officer Beagley offered this
explanation: “[B]ased on my training and experience and in dealing in prior
investigations, I know that gang members sell this stolen property and with proceeds of
the stolen property they buy things such as firearms that they can use against rival gang
members or protect themselves from other gang members. These firearms can also be
used for crimes like robberies. I know that they will use these proceeds to buy narcotics

                                             5.
that they can sell and make even more profit, use these profits to help bail out their fellow
gang members or buy gang paraphernalia. It helps them promote their gang, such as
gang clothing or tattoos or jewelry.”
       The defense case focused on the contested issue of identity. Nicholson’s trial
attorney argued that his client was not the man in the store surveillance video, and
claimed the eyewitness identifications were not credible. Expert testimony was provided
by psychologist Robert Shomer, Ph.D., who offered his opinions regarding the lack of
reliability in photographic lineup procedures and in-court identifications.
       The jury found Nicholson guilty as charged and returned a true finding on the
gang enhancement allegation. A bifurcated bench trial was held to determine the prior
strike and prior prison term allegations, which were also found to be true. The trial court
later exercised its discretion to strike the punishment for the prior prison term
enhancement.
       Nicholson was sentenced to a total term of 10 years in prison. His sentence was
calculated using the upper term of three years for the grand theft conviction, which was
doubled because of the prior strike and then enhanced by an additional four years
pursuant to section 186.22, subdivision (b). A notice of appeal was filed on the day of
sentencing.
                                        DISCUSSION
There is Insufficient Evidence to Support the Gang Enhancement
       Section 186.22, subdivision (b) provides for a sentencing enhancement when the
commission of a felony offense is shown to be “gang related.” (People v. Albillar (2010)
51 Cal.4th 47, 60 (Albillar).) This requires the prosecution to prove two elements: (1) the
crime was “committed for the benefit of, at the direction of, or in association with any
criminal street gang,” and (2) the defendant had “the specific intent to promote, further,
or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) The
predicate felony must be connected to the activities of a criminal street gang. (In re

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Frank S. (2006) 141 Cal.App.4th 1192, 1199.) Therefore, as we have emphasized in
prior opinions, a section 186.22 enhancement cannot be based solely upon the
defendant’s gang affiliations and criminal history. (Id. at pp. 1195, 1199.)
       To resolve Nicholson’s claim regarding the gang enhancement, we must review
the record in the light most favorable to the judgment and determine whether the verdict
is supported by substantial evidence. (People v. Tully (2012) 54 Cal.4th 952, 1006-
1007.) Substantial evidence is “‘“evidence that is reasonable, credible and of solid
value – such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.”’” (Id. at p. 1006.) All facts which the jury could have reasonably
deduced from the evidence are presumed in favor of its findings. (Albillar, supra,
51 Cal.4th at p. 60.)
       The standard of review does not credit speculation by any party or witness.
(People v. Marshall (1997) 15 Cal.4th 1, 35 [“mere speculation cannot support a
conviction.”].) “‘“A finding of fact must be an inference drawn from evidence rather
than . . . a mere speculation as to probabilities without evidence.”’” (People v. Raley
(1992) 2 Cal.4th 870, 891.) A conclusion does not equate with a reasonable inference
when it is “‘“based on suspicion alone, or on imagination, speculation, supposition,
surmise, conjecture, or guess work.”’” (Ibid.)
       Nicholson’s arguments rely on a factually analogous case from the First District
entitled In re Daniel C. (2011) 195 Cal.App.4th 1350 (Daniel C.). There, a grocery store
manager had seen three young men enter his establishment late at night and watched with
suspicion as they walked around the store. After a few minutes, two of the individuals
left the store separately. The remaining member of the group picked up a bottle of
whiskey and attempted to leave without paying for it. When the manager confronted
him, a scuffle ensued during which the bottle was broken and the manager sustained
injuries. The young man ran out of the store and was seen fleeing in a truck. The truck
was stopped by police and all four of its occupants were detained. At least three of those

                                             7.
individuals, including the minor who had tried to steal the alcohol, were later identified as
members or associates of a criminal street gang. (Id. at pp. 1353-1355.)
       The appeal in Daniel C. involved a true finding on a section 186.22 enhancement
allegation, with the predicate offense being robbery. The finding was based upon the
minor’s history of gang ties and testimony from the prosecution’s gang expert. The
expert relied on evidence that the minor was accompanied by one self-admitted member,
and another associate, of a gang that was known to identify with the color red.
(Daniel C., supra, 195 Cal.App.4th at pp. 1355-1356.) The minor wore a red hat at the
time of the offense, and the people with him were also wearing red clothing. The expert
believed the three individuals had coordinated their activities inside of the store and that
the crime was beneficial to their gang. He testified that “the commission of violent
crimes benefits a gang because it earns the gang respect, in that members of the
community hear about the crime, become afraid of the gang, and are thereby encouraged
to permit the members to commit other crimes without confronting them or reporting
them to the police.” (Id. at p. 1356.)
       The appellate court reversed the minor’s gang enhancement for lack of evidence to
support the specific intent requirement of section 186.22, subdivision (b). The court
concluded there was no evidence the minor acted in concert with his companions when
he stole the whiskey and assaulted the store employee. “Appellant’s companions left the
store before he picked up the liquor bottle, and they did not assist him in assaulting [the
victim]. Indeed, there is no evidence in the record that appellant’s companions even saw
what happened in the store after they left. Moreover, there is no evidence that [the
victim] was aware that appellant, or his companions who had been in the store earlier,
were gang members or ‘affiliates.’” (Daniel C., supra, 195 Cal.App.4th at pp. 1361.)
Evidence that all three boys had worn red clothing was not enough to substantiate the
expert’s opinion that the offense was gang-related. (Id. at p. 1363.)



                                              8.
       The Daniel C. opinion focuses on the need for proof of a specific intent to
promote, further, or assist in criminal conduct by gang members. (Daniel C., supra, 195
Cal.App.4th at pp. 1362.) “[T]here was no evidence in the record that [the companions]
committed or were charged with any crime in connection with appellant’s theft of the
liquor bottle from the supermarket. Thus, it cannot be inferred from the facts and
circumstances of appellant’s crime, standing alone, that his purpose in committing it was
to promote, further, or assist criminal conduct by gang members.” (Ibid.)
       Respondent attempts to distinguish Daniel C. by arguing that one of Nicholson’s
companions joined him in speaking with Ms. Garcia and inquiring about a particular
necklace. Critically, however, the necklace they discussed was not the item that was
stolen. As Nicholson points out in his reply brief, there was no evidence that his
companions ever saw the gold chain and medallion that Mr. Amezcua was wearing
around his neck, much less conspired to steal it. The facts suggest that Nicholson acted
impulsively after he returned to the store alone and found himself dealing with the store
owner instead of the female employee with whom he had previously spoken. In any
event, the jury could not have reasonably inferred that Nicholson’s companions knew or
expected that he would commit the crime for which he was convicted, i.e., theft of
property from the person of Mr. Amezcua.
       We do note one significant distinction between the facts in Daniel C. and those in
the present appeal, but the difference weighs in Nicholson’s favor. In Daniel C., the
appellate court found there was substantial evidence of gang association to satisfy the
first requirement of the enhancement because the identities of the perpetrator’s
companions were known, and there was solid proof that those individuals were common
members or affiliates of a particular gang. (Daniel C., supra, 195 Cal.App.4th at
pp. 1358-1359.) Here, the only evidence to support the prosecution’s theory that
Nicholson’s companions were gang members was the presence of a “W” on one of their
hats and the unremarkable proposition that gang members prefer to commit crimes with

                                            9.
other gang members. It is questionable whether such a meager showing can be
characterized as substantial evidence. We need not make that determination, however,
because the finding of intent under the second prong of the analysis could only have been
based upon speculation.
       It is settled that a properly qualified expert may render an opinion as to whether or
not a crime is gang-related. (People v. Vang (2011) 52 Cal.4th 1038, 1048; People v.
Gardeley (1996) 14 Cal.4th 605, 616-617 (Gardeley.) However, the opinion must be
based on a hypothetical question that is “rooted in facts shown by the evidence.”
(Gardeley, supra, 14 Cal.4th at p. 618.) A gang expert’s testimony without such facts is
insufficient to support a true finding under section 186.22, subdivision (b). (People v.
Ochoa (2009) 179 Cal.App.4th 650, 665 (Ochoa).)
       Officer Beagley’s opinion in relation to the intent behind Nicholson’s actions was
entirely conjectural. Rather than pointing to specific facts in the case, he began with the
assumption that the perpetrator intended to sell the necklace. There was no evidence of
what became of the necklace after Nicholson stole it, nor proof that Nicholson had any
prior history of fencing stolen goods. The expert then speculated about an array of
potential uses for the proceeds of such a sale, e.g., buying illegal drugs to sell for a profit
and then using the profits to further other criminal activities. Again, there is nothing in
the record to suggest the defendant had a history of drug dealing.
       The prosecutor attempted to substantiate Officer Beagley’s opinion by asking,
“Now, have you spoken to members of the West Side Crips criminal street gang and have
they told you that proceeds they get from stealing things, that they sell it and use it, as
you suggested, to buy guns, dope, and get tattoos?” The witness replied, “Yes.” This
question and answer did not elevate the expert’s opinion from speculation to reasonable
inference. Were that the case, any crime of theft committed by a West Side Crips gang
member would presumably be gang related. Our Supreme Court has recognized that
“[n]ot every crime committed by gang members is related to a gang.” (Albillar, supra,

                                              10.
51 Cal.4th at p. 60.) The circumstances of the crime must themselves evidence the intent
to promote, further, or assist in criminal conduct by gang members. The opinion in
Ochoa, supra, is illustrative.
       In Ochoa, the defendant approached an occupied parked car, pointed a shotgun at
the occupant’s face, and demanded the vehicle. The defendant made no attempt to
identify himself as a gang member. The victim exited and ran away, and the defendant
drove off in the car. At trial, a law enforcement officer testified that the defendant was a
member of a particular gang, that car theft was the gang’s “signature crime,” and that
carjacking was also a typical gang crime because it allowed members “to obtain a car,
and most likely go out [and] either commit some other type of crime, or sell it for
weapons, drugs, things of that nature.” The prosecution’s gang expert opined that the
offense was committed for the benefit of the defendant’s gang because stealing the car
provided an economic benefit and also impacted the gang’s reputation in the community.
(Ochoa, supra, 179 Cal.App.4th at pp. 653-656.)
       On appeal, the Fourth District concluded that nothing in the circumstances of the
offense supported the expert’s inference that the crime was gang-related. (Ochoa, supra,
179 Cal.App.4th at pp. 661-662.) “[C]arjacking is a crime, but not one that is necessarily
gang related…. There was no evidence that only gang members committed carjackings or
that a gang member could not commit a carjacking for personal benefit, rather than for
the benefit of the gang.” (Ibid.) “While the [expert] effectively testified that carjacking
by a gang member would always be for the benefit of the gang, this ‘“did nothing more
than [improperly] inform the jury how [the expert] believed the case should be decided,”’
without any underlying factual basis to support it.” (Id. at p. 662.)
       This district’s opinion in People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon) is
also instructive. In Ramon, two gang members were stopped by police while driving
through a section of Kern County which was known to be the traditional territory of their
gang. The vehicle had been reported stolen and officers found an unregistered firearm

                                             11.
underneath the driver’s seat. The defendant driver was later convicted of receiving a
stolen vehicle, possession of a firearm by an active gang member, and carrying a loaded
firearm in public for which he was not the registered owner. The jury found each of these
crimes to be gang-related for purposes of section 186.22, subdivision (b). (Id. at pp. 846-
848.)
        During the Ramon defendant’s trial, the prosecution’s gang expert testified that car
theft was one of the primary activities of the defendant’s gang and opined that by driving
a stolen vehicle with an unregistered firearm within his gang’s territory, the defendant
could more easily commit crimes without detection because of his ability to abandon the
vehicle and gun afterwards, knowing it would be difficult to trace the items back to him.
(Id. at pp. 847-848.) Therefore, driving a stolen vehicle and possessing a stolen firearm
provided a benefit to the defendant’s gang. The expert further opined that a stolen
vehicle and unregistered gun could be used to spread fear and intimidation within the
gang’s territory. (Id. at p. 848.)
        We reversed the gang enhancements in Ramon after concluding there was no
evidentiary foundation for the jury’s findings. The jury could only have relied upon the
opinions of the gang expert, but those opinions were based on speculation. “There were
no facts from which the expert could discern whether [defendant and his companion]
were acting on their own behalf the night they were arrested or were acting on behalf of
[their gang]. While it is possible the two were acting for the benefit of the gang, a mere
possibility is nothing more than speculation. Speculation is not substantial evidence.”
(Ramon, supra, 175 Cal.App.4th at p. 851.)
        Unlike the Ramon defendant, Nicholson did not commit the underlying offense in
the presence of another gang member, which strengthens his position on the enhancement
issue. Section 186.22, subdivision (b) may be applied to a lone actor, but “where the
defendant acts alone, the combination of the charged offense and gang membership alone
is insufficient to support an inference on the specific intent prong of the gang

                                             12.
enhancement.” (People v. Rios (2013) 222 Cal.App.4th 542, 573-574.) As in Daniel C.,
there is no evidence of criminal conduct by other gang members which Nicholson was
supposedly intending to promote, further, or assist by stealing Mr. Amezcua’s necklace.
Any such conclusions are necessarily based upon guesswork.
       In summary, the facts and circumstances of the offense do not, standing alone,
constitute substantial evidence to support the inference that Nicholson stole the victim’s
necklace for the purpose of promoting, furthering, or assisting in criminal conduct by
gang members. The crime did not occur in gang territory, nor did Nicholson make an
affirmative attempt to identify himself as a gang member while committing the offense.
       Although he was seen with two purported gang members immediately before and
after the theft occurred, Nicholson acted alone in committing the offense. Given the lack
of any evidence that his companions saw Mr. Amezcua’s necklace before the theft
occurred, it would be speculative to conclude they were involved in a plot to commit the
predicate felony. Officer Beagley’s theories as to Nicholson’s motive for stealing the
necklace added layers of supposition to an already conjectural opinion regarding the
gang-related nature of the crime. For these reasons we conclude that Nicholson’s case is
not materially distinguishable from Daniel C., supra, and find the evidence insufficient to
support the gang enhancement under section 186.22, subdivision (b).
No Prejudicial Error in the Admission of Evidence Regarding Appellant’s Criminal
History
       Nicholson’s second claim is characterized as an alternative argument for reversal
of the section 186.22 enhancement based on the allegedly erroneous admission of
evidence showing his involvement in prior robbery offenses. Since we are reversing the
gang enhancement on other grounds, the question is whether admission of the challenged
evidence was unduly prejudicial in relation to the grand theft conviction. We conclude it
was not.



                                            13.
       As mentioned above, Officer Beagley was permitted to discuss and rely upon
hearsay evidence of Nicholson’s criminal history. The expert’s testimony revealed that
Nicholson and a fellow West Side Crips gang member had been identified as suspects in
an armed robbery several years prior to the subject incident. The jury was also informed
that Nicholson was arrested another time on suspicion of committing armed robbery at a
location within the West Side Crips’ territory. The trial court admitted the evidence over
a defense objection made pursuant to Evidence Code section 352, finding the subject
matter relevant to the gang enhancement allegation and determining that its probative
value was not substantially outweighed by the likelihood of a prejudicial effect.
       A trial court’s rulings on the admissibility of evidence are reviewed for abuse of
discretion. (People v. Goldsmith (2014) 59 Cal.4th 258, 266.) The exercise of discretion
to admit evidence pursuant to Evidence Code section 352 is not erroneous unless the
probative value of the evidence is clearly outweighed by its prejudicial impact. (People
v. Hollie (2010) 180 Cal.App.4th 1262, 1274.) When an abuse of discretion is shown, the
error is evaluated under the test for prejudice articulated in People v. Watson (1956)
46 Cal.2d 818, 836 (Watson). (People v. Marks (2003) 31 Cal.4th 197, 227.) The
Watson standard asks whether there is a reasonable probability that, but for the error, the
defendant would have obtained a more favorable result at trial. (Watson, supra, 46
Cal.2d at pp. 836-837.)
       Nicholson claims the hearsay testimony about his prior criminal behavior was
cumulative of more compelling proof of his gang affiliations (e.g. self-admitted
membership in the West Side Crips), and was thus more prejudicial than probative under
Evidence Code section 352. He does not attempt to argue that he suffered prejudice in
relation to the grand theft conviction, nor does the record support any such argument. On
the issue of identity, the prosecution’s case rested upon two eyewitness identifications
and was further bolstered by video footage of the crime. Given the strength of this
evidence, and the jury’s ability to decide for itself whether the man in the surveillance

                                            14.
video was Nicholson, it is not reasonably probable that Nicholson would have been
acquitted of the charged crime had it not been for Officer Beagley’s discussion of his
alleged criminal history. Thus, even assuming for the sake of argument that the trial
court abused its discretion by admitting evidence of Nicholson’s criminal history, the
alleged error was harmless. We therefore affirm appellant’s conviction of the substantive
offense.
                                     DISPOSITION
       The true finding on the section 186.22, subdivision (b) enhancement allegation is
reversed. The gang enhancement is ordered stricken from the judgment and appellant’s
sentence is modified accordingly. In all other respects, the judgment is affirmed. The
trial court is directed to prepare an amended abstract of judgment and send a certified
copy of same to the Department of Corrections and Rehabilitation.




                                                                _____________________
                                                                    GOMES, Acting P.J.
WE CONCUR:


 _____________________
DETJEN, J.


 _____________________
FRANSON, J.




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