Filed 8/31/16 P. v. Delgado CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                         B261252

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. BA416608)
         v.

JUAN CARLOS DELGADO,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Upinder S. Kalra, Judge. Affirmed in part, reversed in part, and remanded with
directions.
         Eric Cioffi, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson,
Supervising Deputy Attorney General, and Viet H. Nguyen, Deputy Attorney General, for
Plaintiff and Respondent.
                                      _________________________________
       Juan Carlos Delgado appeals from the judgment entered following a jury trial in
which he was convicted of one count of assault with a semiautomatic firearm in violation
of Penal Code1 section 245, subdivision (b) (count 2), and one count of felon in
possession of a firearm in violation of section 29800, subdivision (a)(1) (count 3).2 The
jury found true gang and personal firearm use allegations as to the assault. (§§ 186.22,
subd. (b)(1); 12022.5.) The trial court found true the allegation that appellant suffered a
prior serious felony conviction that qualified as a strike within the meaning of the Three
Strikes law. (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d); 667, subd. (a)(1).) The
court sentenced appellant to an aggregate term of 26 years 4 months in state prison.3
       Appellant contends: (1) The true finding on the gang enhancement must be
reversed because it was based on improperly admitted statements regarding gang
affiliation that appellant made during booking; (2) Substantial evidence does not support
the true finding on the gang enhancement, requiring reversal; (3) The trial court erred in
imposing sentencing enhancements under both sections 186.22, subdivision (b)(1)(C) and
12022.5. We agree that the gang enhancement allegation lacks substantial evidentiary
support and reverse that finding. In all other respects, we affirm.
                               FACTUAL BACKGROUND
September 23, 2013
       Approximately 10:00 p.m. on September 23, 2013, Elias Paxtor and Juana Barrera
were sitting in Paxtor’s car, parked in the driveway of Barrera’s home near the

       1   Undesignated statutory references are to the Penal Code.
       2The jury acquitted appellant on count 1, attempted second degree robbery.
(§§ 664/211.)
       3 The sentence consisted of the low term of three years on count 2, doubled to six
years for the prior strike conviction (§ 667, subd. (e)(1)), plus a consecutive term of four
years for the personal firearm use enhancement (§ 12022.5), plus ten years for the gang
enhancement (§ 186.22, subd. (b)(1)(C)), plus five years for the prior serious felony
conviction enhancement (§ 667, subd. (a)(1)). On count 3, the court sentenced appellant
to a consecutive term of eight months, doubled for the prior strike conviction.



                                              2
intersection of Arapahoe and Washington west of downtown Los Angeles. Paxtor, who
was sitting in the driver’s seat, had turned off the car’s engine and headlights and had
rolled down the driver’s side window.
        Appellant and another person rode up to the car on bicycles. Appellant
approached the driver’s side window, and his companion went to the passenger side,
where Barrera was sitting. Appellant put a gun to Paxtor’s head and asked him if he
belonged to a gang. Paxtor responded that he did not belong to any gang. Still pointing
the gun at Paxtor’s head, appellant demanded that Paxtor hand over everything in his
wallet. As Paxtor started to pull out his wallet, he told appellant he did not have any
money. Appellant and the other man then abruptly left, riding away on their bicycles.
        The entire interaction lasted 15 to 30 seconds. Angered by the incident, Paxtor
began following appellant in his car and called the police. Paxtor followed appellant for
about an hour. During this time, he dropped Barrera off at her house and resumed his
pursuit of appellant. As he continued to follow appellant, he dialed 911 multiple times
and saw appellant apparently commit a similar assault on another man. After appellant
had left again, Paxtor spoke to the man, who told Paxtor appellant had demanded money.
        Paxtor saw appellant point his gun at someone else in front of a Laundromat.
Appellant went inside the Laundromat with his bicycle. Police arrived, arrested appellant
in the Laundromat, and recovered a loaded semi-automatic handgun hidden in a laundry
basket. Later that night, Paxtor identified Carlos Sarabia as the second suspect in the
assault.
Gang Evidence
        Paxtor believed appellant to be a gang member when appellant asked Paxtor
whether he belonged to a gang. He also noticed appellant had tattoos on his face and
recognized the Playboy bunny tattoo on appellant’s cheek as a gang tattoo, although he
did not know with what gang it was associated. In fact, appellant had four gang-related
tattoos on his face, as well as two on his torso, all signifying membership in the Playboys
gang.


                                             3
       One of the arresting officers, Officer Rafael Espinoza, transported appellant to the
Olympic area police station for booking. During the booking process, Officer Espinoza
asked appellant a series of standard questions. One of those questions was: “ ‘Have you
ever been affiliated with a prison or street gang?’ ” Appellant responded, “ ‘I’m Risky
from Playboys.’ ”
       Los Angeles Police Officer Kenny Talbert testified as the prosecution’s gang
expert. He explained that the Playboys gang is a predominantly Hispanic gang with
approximately 500 documented members, 200 of whom are “active.” Playboys is the
third most powerful gang in the Los Angeles Police Department’s Olympic Division,
behind its main rivals, the Mara Salvatrucha and 18th Street gangs. According to Officer
Talbert, the Mexican Mafia controls the Hispanic street gangs in Southern California,
including the Playboys.
       The primary activities of the Playboys gang are possession of handguns, robbery,
grand theft of automobiles, carjacking, and selling narcotics, by which the gang funds
itself. Assaults with weapons also constitute a common Playboys gang activity.
According to Officer Talbert, assaults benefit the gang by instilling fear in the
community, which in turn deters victims from talking to the police and reporting gang
crime, thus enabling the Playboys to control their territory and sell narcotics. Indeed, fear
and intimidation enhance the gang’s power by allowing the gang to commit crimes with
impunity, protecting gang members from rivals, and increasing the gang’s membership.
       Officer Talbert served in the Olympic Division’s gang enforcement unit for four
years. During that time, he interacted with appellant at least 15 times, and appellant
identified himself as a member of the Playboys in about half of those encounters. Officer
Talbert also reviewed 19 field identification (FI) cards generated by law enforcement
between 2010 and 2012, which indicated appellant was a member of the Playboys and his
gang moniker was “Little Risky.” The officer identified appellant’s Playboys gang
tattoos and opined that gang tattoos on the face constitute a claim of gang affiliation,
signifying a “deeper involvement” in the gang. Officer Talbert speculated that appellant


                                              4
is a “shot caller” for the Playboys, based on his long tenure with the gang. According to
Officer Talbert, appellant would not be engaged in “low status” gang activity such as
tagging to mark gang territory, which would be done by newer gang members.
       In Officer Talbert’s opinion, appellant was an active member of the Playboys gang
when he committed the assault on September 23, 2013. He based his opinion on
appellant’s gang tattoos and the 19 FI cards he reviewed, while conceding that there were
no FI cards dated after 2012. He further recognized that appellant’s association with
other Playboys gang members noted on the FI cards was limited to contacts with his own
brothers, who were documented Playboys gang members, and one incident in which
appellant was associating with Playboys member Jose Gomez on December 27, 2010.
There was no evidence that the second suspect in the assault had any gang affiliation.4
       In response to a hypothetical based on the facts of the case, Officer Talbert opined
that appellant committed the assault in this case for the benefit of the Playboys gang. He
reasoned that a gang member committed the crime, the crime instills fear in the
community, and the crime was committed in rival gang territory, which would help the
Playboys “take over another area” and gain prominence. Officer Talbert explained that
when a gang member openly commits a crime in rival gang territory, it helps the gang
expand its territory into that of its rival and establish narcotic trafficking in the area,
thereby enabling it to pay dues to the Mexican Mafia.
                                        DISCUSSION
            The True Finding on the Gang Enhancement Allegation Lacks
                              Substantial Evidentiary Support
       Appellant contends that because the gang enhancement finding is based entirely on
supposition, it is not supported by substantial evidence and must be reversed. We agree.

       4 Officer Herman Rodriguez, one of the arresting officers in this case, conducted
the field show-up of appellant’s accomplice with Mr. Paxtor. Although the officer had no
evidence that Sarabia was a gang member, he testified he had assumed that, because
Sarabia had been caught in a gang area, he must be a gang member.



                                                5
       A. Applicable Law
       The standard of appellate review for determining the sufficiency of the evidence
supporting an enhancement is the same as that applied to a conviction. (People v. Wilson
(2008) 44 Cal.4th 758, 806; People v. Mejia (2012) 211 Cal.App.4th 586, 614.) Like a
conviction unsupported by substantial evidence, a true finding on a gang enhancement
without sufficient support in the evidence violates a defendant’s federal and state
constitutional rights and must be reversed. (People v. Weddington (2016) 246
Cal.App.4th 468, 483; People v. Ochoa (2009) 179 Cal.App.4th 650, 656–657 (Ochoa).)
       “In considering a challenge to the sufficiency of the evidence to support an
enhancement, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Albillar (2010) 51 Cal.4th 47,
59–60 (Albillar).) We draw all reasonable inferences in favor of the verdict and presume
the existence of every fact the jury could reasonably deduce from the evidence that
supports its findings. (People v. Maciel (2013) 57 Cal.4th 482, 515; People v. Kraft
(2000) 23 Cal.4th 978, 1053.)
       The court may not, however, “ ‘go beyond inference and into the realm of
speculation in order to find support for a judgment. A finding . . . which is merely the
product of conjecture and surmise may not be affirmed.’ ” (People v. Memro (1985) 38
Cal.3d 658, 695, overruled on other grounds by People v. Gaines (2009) 46 Cal.4th 172,
181, fn. 2; People v. Marshall (1997) 15 Cal.4th 1, 35; Ochoa, supra, 179 Cal.App.4th at
p. 663.) “ ‘[E]vidence which merely raises a strong suspicion of the defendant’s guilt is
not sufficient to support a conviction. Suspicion is not evidence; it merely raises a
possibility, and this is not a sufficient basis for an inference of fact.’ ” (People v.
Thompson (1980) 27 Cal.3d 303, 324.) Indeed, “[a] trier of fact may rely on inferences to
support a conviction only if those inferences are ‘of such substantiality that a reasonable
trier of fact could determine beyond a reasonable doubt’ that the inferred facts are true.


                                               6
(People v. Raley (1992) 2 Cal.4th 870, 890–891.)” (People v. Rios (2013) 222
Cal.App.4th 542, 564 (Rios).)
       In 1988 the Legislature enacted section 186.20 et seq., known as the California
Street Terrorism Enforcement and Prevention Act, to combat the scourge of gang-related
crimes and violence afflicting the state. (People v. Prunty (2015) 62 Cal.4th 59, 66–67.)
Section 186.22, subdivision (b)(1) imposes various sentencing enhancements on a
defendant convicted of a gang-related felony committed with the specific intent to
promote, further, or assist in any criminal conduct by gang members.
       There are two prongs to the gang enhancement under section 186.22, subdivision
(b)(1), both of which must be established by the evidence. (Albillar, supra, 51 Cal.4th at
p. 59.) The first prong requires proof that the underlying felony was “gang-related,” that
is, the defendant committed the charged offense “for the benefit of, at the direction of, or
in association with any criminal street gang.” (§ 186.22, subd. (b)(1); Albillar, supra, 51
Cal.4th at p. 60; People v. Gardeley (1996) 14 Cal.4th 605, 622.) The second prong
“requires that a defendant commit the gang-related felony ‘with the specific intent to
promote, further, or assist in any criminal conduct by gang members.’ ” (Albillar, at
p. 64; § 186.22, subd. (b)(1).)
       “In order to prove the elements of the criminal street gang enhancement, the
prosecution may, as in this case, present expert testimony on criminal street gangs.”
(People v. Hernandez (2004) 33 Cal.4th 1040, 1047–1048.) “ ‘Expert opinion that
particular criminal conduct benefited a gang’ is not only permissible but can be sufficient
to support [a] gang enhancement.” (People v. Vang (2011) 52 Cal.4th 1038, 1048;
Albillar, supra, 51 Cal.4th at p. 63.) While an expert may render an opinion assuming the
truth of facts set forth in a hypothetical question, the “hypothetical question must be
rooted in facts shown by the evidence.” (People v. Gardeley, supra, 14 Cal.4th at p. 618.)
Indeed, an “expert’s opinion may not be based ‘on assumptions of fact without
evidentiary support [citation], or on speculative or conjectural factors.’ ” (People v.
Richardson (2008) 43 Cal.4th 959, 1008; People v. Gardeley, supra, 14 Cal.4th at p. 618


                                              7
[“ ‘Like a house built on sand, the expert’s opinion is no better than the facts on which it
is based’ ”].) And an expert is generally not permitted “to supply case-specific facts
about which he has no personal knowledge” in order to render an opinion about what
those facts may mean. (People v. Sanchez (2016) 63 Cal.4th 665, 676 (Sanchez).)
       As for the specific intent prong, “ ‘[i]ntent is rarely susceptible of direct proof and
usually must be inferred from the facts and circumstances surrounding the offense.’ ”
(Rios, supra, 222 Cal.App.4th at pp. 567–568.) Our Supreme Court has thus held that the
scienter requirement may be satisfied with proof “that the defendant intended to and did
commit the charged felony with known members of a gang,” from which “the jury may
fairly infer that the defendant had the specific intent to promote, further, or assist criminal
conduct by those gang members.” (Albillar, supra, 51 Cal.4th at p. 68.) However, in the
absence of evidence that the defendant acted in concert with other gang members, an
inference of specific intent requires evidence beyond mere commission of the charged
offense and gang membership. (See Rios, supra, 222 Cal.App.4th at pp. 573–575.)
       B. The Insufficiency of the Evidence
        “A gang expert’s testimony alone is insufficient to find an offense gang related.
[Citation.] ‘[T]he record must provide some evidentiary support, other than merely the
defendant’s record of prior offenses and past gang activities or personal affiliations, for a
finding that the crime was committed for the benefit of, at the direction of, or in
association with a criminal street gang.’ ” (Ochoa, supra, 179 Cal.App.4th at p. 657.) In
Ochoa, the crime was a carjacking committed by a lone gang member wielding a shotgun
outside his gang’s territory. Finding “nothing in the circumstances of the instant offenses
[to] sustain the expert witness’s inference that they were gang related,” the appellate court
reversed the gang enhancements based on insufficient evidence to support the gang-
related prong of the statute. (Id. at pp. 661–662.)
       In support of the gang-related prong of the enhancement here, Officer Talbert
testified that the assault could benefit appellant’s gang in several ways, but the record is
devoid of any specific evidentiary support from which to draw such inferences. Officer


                                               8
Talbert opined that appellant is an active member of the Playboys gang and committed the
assault for the benefit of the gang by instilling fear in the community. He further testified
that by committing a crime on rival gang turf, appellant would benefit his gang by helping
it to expand its territory and its narcotics operations, which would enhance its ability to
pay dues to the Mexican Mafia. He speculated that the assault in rival gang territory
would benefit the Playboys by enabling the gang to “take over” the area and set up
narcotics trafficking operations there, which would somehow make the Playboys’ “area
even more prominent.” But no evidence exists in this case to connect appellant’s assault
with any attempt to take over rival gang territory, much less the sale of narcotics or
paying dues to the Mexican Mafia. The expert also opined that the gang would stand to
benefit from the criminal act of a member regardless of where the crime is committed—
inside or outside gang territory—because a crime committed anywhere by a member of
the gang instills fear in the community. Again, the record reveals no evidence to support
the expert’s supposition.
       Officer Talbert postulated another benefit to the gang might be that the assault
served as an “initiation” to show “any new recruits” that they would be expected to go out
and commit criminal activity to further the gang. But even Officer Talbert was forced to
admit such a characterization of the assault amounted to nothing more than idle
speculation.
       In reaching his conclusion that the assault benefited the gang, Officer Talbert
relied on the evidence that appellant was a documented member of the Playboys gang, he
had visible gang tattoos on his face, and he asked the victim what gang he was from.5 In

       5 Appellant further cites our Supreme Court’s recent decision in Sanchez to
challenge the sufficiency of the evidence in support of the gang allegation. Sanchez
announced the following rule: “When any expert relates to the jury case-specific out-of-
court statements, and treats the content of those statements as true and accurate to support
the expert’s opinion, the statements are hearsay. It cannot logically be maintained that the
statements are not being admitted for their truth. If the case is one in which a prosecution
expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless


                                              9
the expert’s opinion, it did not matter that appellant did not speak the name of his gang,
because the tattoos on his face declared the crime was connected to the gang, whether or
not the victim understood the significance of the tattoos. Further, when a gang member
asks someone, “Where are you from?” it is always meant as a challenge, and the wrong
response could lead to some kind of violent reaction. According to the expert, when
members of the community who are not gang members are asked that question, it instills
fear, it makes them feel uncomfortable, and it makes them feel challenged, which
ultimately benefits the gang. But the evidence underlying the expert’s opinion established
nothing more than appellant’s membership in a gang, which is wholly inadequate to
support the inference that appellant committed assault for the benefit of his gang.
       Noting that not all crimes are necessarily gang related, Ochoa explained, “In an
evidentiary context, ‘ “[r]eaching a conclusion that offenses are signature crimes requires
a comparison of the degree of distinctiveness of shared marks with the common or
minimally distinctive aspects of each crime.” ’ ” (Ochoa, supra, 179 Cal.App.4th at
p. 662.) Here, the expert did not characterize assault as a signature crime of the Playboys
gang, mentioning the offense as a common gang activity almost as an afterthought.
Moreover, the prosecution presented no evidence to suggest the Playboys commit the
crime of assault in a distinctive manner or that appellant did so in this case. The evidence


(1) there is a showing of unavailability and (2) the defendant had a prior opportunity for
cross-examination, or forfeited that right by wrongdoing.” (Sanchez, supra, 63 Cal.4th at
p. 686, fn. omitted.) Thus, appellant contends that information on the FI cards upon
which Officer Talbert based his opinion that appellant is a member of the Playboys gang
constitutes inadmissible testimonial hearsay which ran afoul of the confrontation clause.
       We need not decide whether the contents of the FI cards here constituted
inadmissible hearsay or was testimonial, however. First, as in Sanchez, the circumstances
surrounding the preparation of the FI cards do not appear in the record. We therefore
have no means by which to assess the primary purpose for which they were prepared.
(See Sanchez, supra, 63 Cal.4th at p. 697.) Moreover, in this case Officer Talbert relied
not only on the FI cards prepared by others, but also on his own observations and
interactions with appellant in concluding he was an active Playboys gang member.



                                             10
here thus showed nothing more than a garden variety assault committed by a member of a
gang. This, standing alone without a shred of evidence of a real world benefit to the
gang, does not suffice to support imposition of a gang enhancement.
       Ochoa declared: “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. Indeed, two of the People’s witnesses testified that
gang members can commit crimes on their own without benefitting the gang. While the
sergeant 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.” (Ochoa, supra, 179 Cal.App.4th at p. 662, quoting In re Frank S. [(2006)
141 Cal.App.4th 1192,] 1197.)
       So it is in the case before us. Officer Talbert conceded that gang members
sometimes commit crimes for personal gain and not for the benefit of a gang. But he
insisted “only an active gang member is going to ask where you’re from,” and any
criminal act that follows such a question is committed for the benefit of the gang. Thus
reduced to its essence, Officer Talbert simply informed the jury that appellant was a gang
member, and any crime he committed benefited the gang. But as our Supreme Court has
emphasized, “[m]ere active and knowing participation in a criminal street gang is not a
crime.” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130.) And a “gang enhancement
cannot be sustained based solely on defendant’s status as a member of the gang and his
subsequent commission of crimes.” (Ochoa, supra, 179 Cal.App.4th at p. 663; Rios,
supra, 222 Cal.App.4th at pp. 573–574.)
       Officer Talbert himself rejected the notion that one could conclude a person
commits a crime for the benefit of a gang based solely on gang affiliation, gang tattoos
and carrying a weapon, saying, “You need more factors.” But the prosecution here failed
to present any evidence of other factors to support the expert’s opinion of gang benefit.
Accordingly, the gang enhancement cannot be sustained on the basis of the expert’s


                                             11
opinion.
       While the evidence falls well short of demonstrating the assault was gang-related,
the prosecution’s showing on the specific intent prong of the enhancement was
completely nonexistent. Officer Talbert gave no opinion at all about whether appellant
committed “the gang-related felony ‘with the specific intent to promote, further, or assist
in any criminal conduct by gang members.’ ” (See Albillar, supra, 51 Cal.4th at p. 64;
§ 186.22, subd. (b)(1).) But even if such an opinion could be teased out of the expert’s
testimony regarding gang-relatedness, an inference about appellant’s intent would lack
any basis in the evidence. While appellant committed his crime in concert with another
person, the record contains no evidence that Sarabia had any gang affiliation whatsoever.
As discussed above, the prosecution sought to prove the gang allegation with evidence of
appellant’s gang status and his commission of the charged offense after asking the victim
where he was from. But as Rios explained: “Although Albillar instructs that the
prosecution may rely on the charged offense as the criminal conduct supporting the
enhancement when the defendant acts in concert with others, in a case such as this, 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
enhancement.” (Rios, supra, 222 Cal.App.4th at pp. 573–574; Albillar, supra, 51 Cal.4th
at p. 68.) The record in this case contains no facts to fill this evidentiary void, and hence,
no basis to find the requisite intent under the second prong of the gang statute.
       For all these reasons, we hold that the evidence was insufficient to support the
gang allegations in this case. (§186.22, subd. (b)(1).) Because we reverse the jury’s true
finding on the gang enhancement allegation, we need not address appellant’s other
contentions regarding admission of his statements during booking about his gang
affiliation and the court’s imposition of sentencing enhancements under both sections
186.22, subdivision (b)(1)(C) and 12022.5.




                                              12
                                      DISPOSITION
       The true finding on the gang enhancement allegation is reversed, and the cause
remanded to the trial court for resentencing. In all other respects, the judgment is
affirmed.
       NOT TO BE PUBLISHED.


                                                  LUI, J.
We concur:


       CHANEY, Acting P. J.


       JOHNSON, J.




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