Filed 2/4/15 P. v. Demar CA3
                                           NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----


THE PEOPLE,

                   Plaintiff and Respondent,                                                 C074212

         v.                                                                      (Super. Ct. No. 11F01641)

CHARLES GILBERT DEMAR,

                   Defendant and Appellant.




         A jury convicted defendant Charles Gilbert Demar of manufacturing
methamphetamine (counts one and four), transporting methamphetamine (count two) and
possessing methamphetamine for sale (count three). The jury also found true allegations
that defendant committed the offenses for the benefit of a criminal street gang and that he
had three prior serious or violent felony convictions and a prior controlled substance
conviction.
         The trial court sentenced defendant to an aggregate of 84 years to life in prison,
consisting of the following: on count one, 25 years to life plus four years for the gang
enhancement; on count two, 25 years to life plus one year for the gang enhancement;


                                                             1
on count three, 25 years to life stayed pursuant to section 654; on count four, 25 years
to life plus one year for the gang enhancement; and three years for the prior controlled
substance conviction.
       Defendant now contends (1) the same gang-related conduct cannot be used both to
elevate the current offenses to serious felonies and to trigger gang enhancements on those
same offenses; (2) the prior controlled substance conviction in the State of Nevada does
not support the enhancement under Health and Safety Code section 11370.2, because the
statutory elements in Nevada and California are different; and (3) there was insufficient
evidence to support the gang enhancements.
       We will reverse the true finding on the Health and Safety Code section 11370.2
enhancement allegation and remand that enhancement allegation for retrial. We will
affirm the judgment in all other respects.
                                     BACKGROUND
       While Citrus Heights police officers had defendant under surveillance on
March 2, 2011, defendant entered his white pickup truck holding a black backpack.
Defendant drove away and police followed him. Sacramento County Sheriff’s Sergeant
Steve Ferry also began following defendant and activated his overhead lights. When
another police vehicle activated its siren, the white truck exited the highway at Bradshaw
Road. Sergeant Ferry saw that something was thrown from the passenger side window
of the truck. The object appeared to be a white item inside a plastic bag.
       Officers arrested defendant when he eventually stopped. Defendant had $611
in his wallet and $13 in a pants pocket. The backpack inside the truck contained straws,
unused resealable baggies, tweezers, three vials containing powders, indicia pertaining
to defendant, and two bindles of methamphetamine weighing 7.5 grams and 5.9 grams.
Officers also found a cell phone in the truck.
       Officers also found a large resealable bag on the side of the road. The bag



                                             2
contained a working digital scale, several other resealable bags, and a substance the
officers recognized as methamphetamine.
       Detectives went to defendant’s residence the next day. They found two plastic
bins containing glass beakers, flasks, tubing, coffee filters, a funnel, and other items
typically found in a clandestine methamphetamine laboratory. They also found a two-
burner hot plate in a closet and a glass bowl containing a white substance in the kitchen
freezer. In addition, the detectives found pseudoephedrine, one of the essential
ingredients of methamphetamine. They took samples of substances from inside an
assortment of glassware and seized clothing, including two jackets depicting Adolf
Hitler. And in a nearby locked garage that defendant rented, the detectives found
chemicals commonly used to manufacture methamphetamine.
       In the opinion of the detectives, the items found inside the apartment and garage
were possessed for the purpose of manufacturing methamphetamine, and the
methamphetamine thrown from the truck had been possessed for sale. When arrested,
defendant did not display signs of chronic methamphetamine use or appear to be under
the influence of methamphetamine.
       Tests of substances from defendant’s backpack confirmed the presence of
methamphetamine and revealed the presence of dimethylsulfone, commonly known as
MSM, which is used clandestinely as cutting material for methamphetamine. The
substance thrown from defendant’s truck contained amphetamine and methamphetamine.
Powders found in defendant’s backpack contained amphetamine, methamphetamine, red
phosphorus, iodine, and triprolidine, a cough expectorant. Methamphetamine was found
with the other chemicals in the garage, indicating completion of the manufacturing
process.
       Citrus Heights Police Officer David Gutierrez testified as an expert on white
criminal street gangs. He explained that Citrus Heights police officers “validate”
individuals as gang members when they satisfy at least two designated criteria.

                                              3
       “Skinheads” are a white criminal street gang with a racist ideology. Their enemies
include black criminal street gangs, homosexuals, and Jews. Skinheads are not territorial
in the same way as other gangs. Their primary symbols include swastikas, lightning
bolts, murals of Adolf Hitler, the letters SWP (which stand for supreme white power or
supreme white pride), Odin’s Rune symbols, the numbers 14 and 88, and the Celtic cross.
Skinhead gang members commonly wear lace-up boots, flight jackets, khaki pants, and
suspenders.
       Validated Skinhead subsets in Sacramento County include the Sacramento
Skinheads, the western hammer skins, World Church of the Creator, Aryan Nation, and
American front. The Sacramento County Sheriff’s Department has validated 94 male
members of the Sacramento Skinheads. The gang’s primary activities include robbery,
burglary, assault with a deadly weapon, identity theft, vehicle theft, possession of
firearms by felons, and methamphetamine sales. Officer Gutierrez described predicate
offenses committed by Sacramento Skinheads in 2001 and 2010. Defendant committed
two of the offenses.
       Defendant’s gang or “street” name is “Boots.” He has a tattoo of a Doc Marten
boot, plus many other tattoos that have gang significance. Photographs show him with
Skinheads and other Sacramento Skinheads. He wore white laces on his boots, which
identified him as a Skinhead, and his jacket displayed Skinhead symbols. He appeared in
a photograph wearing a shirt with the number 88 (representing H, the eighth letter, twice,
signifying Heil Hitler) and a necklace with a medallion of Thor’s hammer, a symbol
popular among white supremacists.
       In the opinion of Officer Gutierrez, defendant is a member of the Sacramento
Skinheads gang. Defendant’s current crimes benefited the gang. By manufacturing
methamphetamine, he was able to furnish it to fellow gang members. His possession
of methamphetamine for sale helped to finance gang activities; and his transportation
of methamphetamine helped to distribute the drug.

                                             4
       Defendant’s cellular telephone contained digital video files. The jury saw the
videos. One video depicted hydrogen chloride gas causing methamphetamine to fall out
of the solution in which it had been suspended. Defendant appeared in the videos, which
were made in his apartment on February 23, 2011. A framed photograph of red and black
boots is visible in the background of the video. Officer Gutierrez addressed the
significance of boots by explaining, “one thing that most Skinheads will wear in common
are boots that look like either Doc Martens or very similar to Doc Marten boots, . . . the
black calf-height boots.”
       Defendant’s cellular telephone also contained copies of text messages. One
message, sent on February 26, 2011, read: “Two gallons acetone, one gallon odorless
mineral spirits, ten feet of braided hose half-inch diameter.” Another message, sent the
same day to the same telephone number, read, “Need ASAP.” The messages were sent
to a validated member of the Skinheads gang. A message received by defendant’s
telephone read, “If you can front me some, I’ll pay you tomorrow.” To “front” narcotics
means to furnish narcotics on credit.
       Defendant had a prior conviction for first degree burglary, two prior convictions
for assault with a deadly weapon, and a prior Nevada conviction for manufacturing or
attempting to manufacture methamphetamine.
       The sole witness for the defense was Randall Holmes. He was associated with the
Sacramento Skinheads from 1986 to 2011, and at one point he served as an “elder” of the
group. He described the Sacramento Skinheads as a “philosophy” and a “racial belief
system.” To be a member, one must be white and from Sacramento. All members are
tattooed with the words “Sacto Skins.” There are no formal dues, fees, taxes, or treasury.
By the time of trial, the group was “defunct.”
       Holmes went to prison in 1994. While incarcerated, his then-wife left him and
began a relationship with defendant. Thereafter, defendant and Holmes had animosity for



                                             5
one another. But in 2009, they became better acquainted and “ended up liking each other
a lot.” Holmes became an apprentice in the tattoo parlor where defendant worked.
       According to Holmes, defendant was not a Sacramento Skinhead. He was not
from Sacramento and did not have the identifying tattoo. Defendant supported himself
through his tattoo art and asbestos removal. He also sang for the band Storm Troop 16.
       In 2010, defendant told Holmes that he had resumed using methamphetamine.
Holmes told defendant to stop using and to call him when he was clean. Holmes never
saw defendant after that. The Skinheads do not condone drug use. Holmes was not
aware of any Sacramento Skinheads who directed or benefited from defendant’s
manufacture of methamphetamine.
       Holmes had prior convictions for first degree burglary, possession of LSD,
possession of psilocybin, possession of a firearm by a convicted felon, and multiple
counts of armed robbery.
       The jury found defendant guilty of manufacturing methamphetamine (Health &
Saf. Code, § 11379.6, subd. (a) -- counts one & four), transportation of methamphetamine
(Health & Saf. Code, § 11379, subd. (a) -- count two), and possession of
methamphetamine for sale (Health & Saf. Code, § 11378 -- count three). The jury also
found true allegations that defendant committed the offenses for the benefit of, at the
direction of, or in association with a criminal street gang with the specific intent to
promote, further, or assist in criminal conduct by gang members (Pen. Code, § 186.22,
subd. (b)(1))1 and that defendant had three prior serious or violent felony convictions
(§§ 667, subds. (b)-(i), 1170.12) and a prior controlled substance conviction (Health &
Saf. Code, § 11370.2, subds. (b) & (f)).
       The trial court sentenced defendant to an aggregate of 84 years to life in prison,




1 Undesignated statutory references are to the Penal Code.


                                              6
consisting of the following: on count one, 25 years to life plus four years for the gang
enhancement; on count two, 25 years to life plus one year for the gang enhancement; on
count three, 25 years to life stayed pursuant to section 654; on count four, 25 years to life
plus one year for the gang enhancement; and three years for the prior controlled
substance conviction.
                                        DISCUSSION
                                               I
       Defendant contends the same gang-related conduct cannot be used both to elevate
the current offenses to serious felonies and to trigger gang enhancements on those same
offenses.
       “Section 186.22(b)(1)(A) provides that a person convicted of ‘a felony’ that is
gang related shall receive, at the court’s discretion, an additional two-, three-, or four-
year term at sentencing. Section 186.22(b)(1)(B) provides that a person convicted of
‘a serious felony’ that is gang related shall receive an additional five-year term at
sentencing. Section 186.22(b)(1)(C) provides that a person convicted of a ‘violent
felony’ that is gang related shall receive an additional 10-year term at sentencing.”
(People v. Briceno (2004) 34 Cal.4th 451, 464-465 (Briceno).)
       Section 1192.7, subdivision (c)(28) defines a “serious felony” to include any
felony offense committed for the benefit of a criminal street gang under the section
186.22, subdivision (b)(1) gang enhancement. (Briceno, supra, 34 Cal.4th at p. 464.)
       “On November 6, 2012, voters approved Proposition 36, the Three Strikes Reform
Act of 2012 (the Act). Under the three strikes law (§§ 667, subds. (b)–(i), 1170.12) as it
existed prior to Proposition 36, a defendant convicted of two prior serious or violent
felonies would be subject to a sentence of 25 years to life upon conviction of a third
felony. Under the Act, however, a defendant convicted of two prior serious or violent
felonies is subject to the 25-year-to-life sentence only if the third felony is itself a serious
or violent felony. If the third felony is not a serious or violent felony, the defendant will

                                               7
receive a sentence as though the defendant had only one prior serious or violent felony
conviction, and is therefore a second strike, rather than a third strike, offender.”
(People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1285-1286, italics
omitted.)
       In this case, the jury found the section 186.22, subdivision (b)(1) gang
enhancement allegation true on each count. The jury also found that defendant had three
prior serious or violent felony convictions. At sentencing, defense counsel recognized
that defendant was facing three consecutive terms of 25 years to life. But he objected to
imposition of additional gang enhancements, arguing that the trial court would be
“double punishing” defendant because the same gang conduct that qualified him for third
strike (as opposed to second strike) sentencing also qualified him for enhancements.
Defense counsel argued the sentences were “either cruel and unusual punishment, or it’s
double punishing him in violation of [section] 654.” The trial court concluded the
enhancements did not amount to double sentencing and imposed enhancement sentences
consistent with section 186.22, subdivision (b)(1)(A): four years on count one (the upper
term); one year consecutive on count two (one-third the mid-term); one year consecutive
on count three (one-third the mid-term), stayed pursuant to section 654; and one year
consecutive on count four (one-third the mid-term).
       Defendant relies on the holding in Briceno, supra, 34 Cal.4th 451, but that case
does not assist him. In Briceno, the California Supreme Court held that “while it is
proper to define any felony committed for the benefit of a criminal street gang as a
serious felony under section 1192.7(c)(28), it is improper to use the same gang-related
conduct again to obtain an additional five-year sentence under section 186.22[,
subdivision] (b)(1)(B).” (Briceno, supra, 34 Cal.4th at p. 465.) Here, however, the trial
court did not impose additional five-year enhancements under section 186.22, subdivision
(b)(1)(B).
       Because the jury determined that the current felony offenses were committed for

                                              8
the benefit of a criminal street gang under section 186.22, subdivision (b)(1), the offenses
were serious felonies for the purposes of imposing indeterminate 25-to-life sentences
under the Three Strikes Reform Act of 2012. (§§ 667, subds. (b)-(i), 1170.12, 1192.7,
subd. (c)(28).) But to avoid the impermissible bootstrapping prohibited by the California
Supreme Court in Briceno, the offenses were not serious felonies for the purposes of
imposing enhancements under section 186.22, subdivision (b)(1)(B). Instead, the trial
court imposed enhancements under section 186.22, subdivision (b)(1)(A), thus giving full
effect to voter and legislative intent while avoiding the concerns expressed in Briceno.
       “In enacting section 186.22, the Legislature sought to provide an alternative
sentencing scheme, producing harsher punishment for gang-related offenses.” (People v.
Arroyas (2002) 96 Cal.App.4th 1439, 1444.) In amending section 186.22 pursuant to
Proposition 21, the electorate intended to increase the penalties for all gang-related crime.
(Robert L. v. Superior Court (2003) 30 Cal.4th 894, 907.) The Legislature and the
electorate have not indicated that a section 186.22, subdivision (b)(1)(A) enhancement
does not apply when another provision of law defines the same act as a serious felony.
Rather, the Legislature has expressed the intent to impose three strikes sentencing “ ‘in
addition to any other enhancement or punishment provisions which may apply’ [citation]
‘to ensure longer prison sentences and greater punishment for those who commit a felony
and have been previously convicted of . . . serious and/or violent felony offenses.’
[Citation.]” (People v. Doyle (2013) 220 Cal.App.4th 1251, 1260.) The electorate has
expressed the same intent. (People v. Tillman (1999) 73 Cal.App.4th 771, 781-782.)
Defendant’s argument that his three strikes sentence bars application of the “other
enhancement or punishment provisions” of section 186.22 is contrary to the intent of the
Legislature and the electorate and thus lacks merit. (Ibid.)
                                             II
       Defendant next contends his prior controlled substance conviction in the State
of Nevada does not support the enhancement under Health and Safety Code section

                                             9
11370.2, because the statutory elements in Nevada and California are different.
Specifically, he claims that unlike the California law, the Nevada statute could be
violated by an attempt. The People agree.
       Pursuant to Health and Safety Code section 11370.2, subdivisions (b) and (f),
the information alleged that defendant had been convicted of violating Nevada Revised
Statutes 453.321 on April 21, 2000, in Clark County, Nevada. To prove the prior
conviction, the People introduced into evidence the Nevada amended information, the
second amended information, the guilty plea agreement, the amended judgment of
conviction, and court minutes from the guilty plea and sentencing. Count II of the
charging documents accused defendant of violating Nevada Revised Statutes section
453.321, asserting that he “did then and there willfully, unlawfully and feloniously
manufacture or compound, or offer or attempt to manufacture or compound, a controlled
substance, to-wit: Methamphetamine, or did possess a majority of the ingredients
required to manufacture or compound said controlled substance.” (Italics added.)
       The plea agreement recites that defendant agreed to plead guilty to, among other
things, “ONE (1) COUNT--MANUFACTURE A CONTROLLED SUBSTANCE
(Category B Felony – NRS 453.321), as more fully alleged in the charging document
attached hereto as Exhibit ‘1.’ ” The minute order recites that defendant pleaded guilty
to, among other things, “COUNT II – MANUFACTURE A CONTROLLED
SUBSTANCE (F).”
       Health and Safety Code section 11370.2, subdivision (b), provides in relevant part:
“Any person convicted of a violation of, or of a conspiracy to violate, Section . . .
11379.6 . . . shall receive, in addition to any other punishment authorized by law, . . . a
full, separate, and consecutive three-year term for each prior felony conviction of, or for
each prior felony conviction of conspiracy to violate, Section . . . 11379.6 . . . , whether
or not the prior conviction resulted in a term of imprisonment.” Subdivision (f) of the



                                              10
statute provides that “[p]rior convictions from another jurisdiction qualify for use under
this section . . . .” (Health & Saf. Code, § 11370.2, subd. (f).)
       Nevada Revised Statutes section 453.321, paragraph 1, makes it unlawful
to “(a) Import, transport, sell, exchange, barter, supply, prescribe, dispense, give away
or administer a controlled or counterfeit substance; (b) Manufacture or compound a
counterfeit substance; or (c) Offer or attempt to do any act set forth in paragraph (a)
or (b).”
       The parties agree that “[t]he Nevada statute may be violated by attempt, conduct
which is not criminal under the corresponding California statute.” Indeed, in California,
“attempts of most crimes are not defined within a statute, but are governed by the general
attempt statute (§ 21a). [Citation.]” (People v. Medina (2007) 41 Cal.4th 685, 697.)
“Although certain crimes and a conspiracy to commit certain crimes are listed [in Health
and Safety Code section 11370.2], an attempt to commit a certain crime is not listed.
An attempt to commit a crime is neither a completed crime nor a conspiracy to commit
a crime. An attempt is an offense ‘separate’ and ‘distinct’ from the completed crime.
[Citations.]” (People v. Reed (2005) 129 Cal.App.4th 1281, 1283.) “As the statute now
reads, neither a current conviction of an attempt to commit a specified crime nor a prior
conviction of an attempt to commit a specified crime supports an enhancement under
[Health and Safety Code] section 11370.2, subdivision (a). ‘[I]f the Legislature had
intended to include attempts in the enhancement provisions, it would have specifically
stated the enhancement applie[d] to the “commission or attempted commission” of
specific crimes . . . .’ [Citation.].” (Id. at p. 1285.)
       Because no evidence established that defendant’s prior Nevada conviction
involved a completed manufacture rather than an attempted manufacture, the evidence
did not establish that defendant’s prior Nevada conviction was for an offense that
qualified as an enhancement under Health and Safety Code section 11370.2,
subdivision (b). We will reverse the true finding on the enhancement allegation and

                                               11
remand the enhancement allegation for retrial. (See People v. Barragan (2004)
32 Cal.4th 236, 259.)
                                              III
       In his supplemental opening brief, defendant contends there was insufficient
evidence to support the gang enhancements.
       “ ‘ “On appeal we review the whole record in the light most favorable to the
judgment to determine whether it discloses 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. [Citations.] The standard of review is
the same in cases in which the People rely mainly on circumstantial evidence. [Citation.]
‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial
evidence is susceptible of two interpretations, one of which suggests guilt and the other
innocence [citations], it is the jury, not the appellate court which must be convinced of
the defendant’s guilt beyond a reasonable doubt. “ ‘If the circumstances reasonably
justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant a reversal of the judgment.’ ” [Citations.]’ [Citation.]” ’ [Citation.] Thus, ‘[w]e
presume in support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. [Citation.]’ [Citations.] ‘Unless it is clearly shown that “on
no hypothesis whatever is there sufficient substantial evidence to support the verdict” the
conviction will not be reversed. [Citation.]’ [Citation.] The same standard of review
applies to true findings on gang enhancement allegations. [Citation.]” (People v.
Williams (2009) 170 Cal.App.4th 587, 623-624 (Williams).)
       Section 186.22, subdivision (b)(1), provides sentencing enhancements for “any
person who is convicted of a felony committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members.” A “criminal street gang” is “any

                                              12
ongoing organization, association, or group of three or more persons, whether formal or
informal, having as one of its primary activities the commission of one or more of the
criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of
[section 186.22, ]subdivision (e), having a common name or common identifying sign or
symbol, and whose members individually or collectively engage in or have engaged in a
pattern of criminal gang activity.” (§ 186.22, subd. (f); People v. Gardeley (1996)
14 Cal.4th 605, 616-617 (Gardeley).)
       A “ ‘pattern of criminal gang activity’ means the commission of, attempted
commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for,
or conviction of two or more of [33 listed] offenses, provided at least one of these
offenses occurred after the effective date of this chapter and the last of those offenses
occurred within three years after a prior offense, and the offenses were committed on
separate occasions, or by two or more persons . . . .” (§ 186.22, subd. (e); Gardeley,
supra, 14 Cal.4th at pp. 616-617.)
       Defendant claims the evidence fails to support either element of the gang
enhancement. We first consider whether there was sufficient evidence that the felonies
were committed “for the benefit of, at the direction of, or in association with any criminal
street gang.” (§ 186.22, subd. (b)(1).)
       The evidence supports an inference that defendant manufactured
methamphetamine “in association with” John Hovis, a validated member of the
Skinheads gang. (§ 186.22, subd. (b)(1).) Defendant sent a text message to Hovis
regarding materials and ingredients used in the manufacturing process. The message
referred to “[t]wo gallons acetone, one gallon odorless mineral spirits, ten feet of braided
hose half-inch diameter.” Within the next minute and a half, defendant sent a second
message saying “Need ASAP.”
       The jury was not compelled to draw the less reasonable inference that defendant
had risked detection of his clandestine enterprise by urgently requesting items commonly

                                             13
associated with methamphetamine manufacturing from a person who was not associated
with his efforts. Rather, the jury could draw the more reasonable inference that defendant
had put this request to an associate who would not reveal his secret activities.
       Although detectives never interviewed John Hovis or determined whether he had
responded to defendant’s messages, the statute does not require a minimum level of
participation or response from an associate. There is no merit to defendant’s claim that
the evidence supporting the association element was insufficient. (Williams, supra,
170 Cal.App.4th at pp. 623-624.)
       We next consider the sufficiency of the evidence that the felonies were committed
with the “specific intent to promote, further, or assist in any criminal conduct by gang
members.” (§ 186.22, subd. (b)(1).) Defendant claims the jury could not reasonably
infer the requisite intent, in part because “[h]e made no reference to the gang on the
video.”2 But although the video contained no verbal reference to the Skinhead gang, it
nonetheless contained a visual reference. The framed photograph of boots is visible in
the background. Defendant’s gang or street name is “Boots” and he has a tattoo of a Doc
Marten boot. Like visual hand gestures or graffiti, the visual reference to defendant’s
gang moniker and to apparel favored by Skinheads supported an inference that the drug
manufacturing depicted in the foreground of the video was intended to promote the
activities of the gang. The fact the jury could have drawn an opposite inference does not
warrant reversal of the judgment. (Williams, supra, 170 Cal.App.4th at pp. 623-624.)
       Defendant notes there was no evidence that he posted the video or showed it to
anyone. But the video nevertheless provides useful insight into defendant’s intent at the
time it was made.



2 Defendant cites People v. Ochoa (2009) 179 Cal.App.4th 650, 661-663, but his
reliance on that case is misplaced. The specific intent prong of the statute was not at
issue in that case. (Ochoa, supra, 179 Cal.App.4th at p. 661, fn. 7.)

                                             14
       Defendant also argues that the testimony of Officer Gutierrez, the gang expert,
was not “ ‘ “rooted in facts shown by the evidence” ’ ” and his opinions were “improper
assumptions based on ‘ “facts divorced from the actual evidence and for which no
evidence was ever introduced.” ’ ” We disagree.
       Officer Gutierrez described predicate offenses committed by Sacramento
Skinheads in 2001 and 2010, and defendant committed two of the offenses. Officer
Gutierrez also explained that defendant had tattoos, clothes and a street name that had
gang significance. In addition, defendant appeared in photographs with Skinheads and
other Sacramento Skinheads, and in a video depicting methamphetamine falling out of
solution, a framed photograph of red and black boots is visible. Defendant also sent text
messages about chemicals to a validated member of the Skinheads gang. A message
received by defendant’s telephone read, “If you can front me some, I’ll pay you
tomorrow.”
       We conclude there was sufficient evidence to support the gang enhancements.
                                      DISPOSITION
       The true finding on the Health and Safety Code section 11370.2 enhancement
allegation is reversed, and the enhancement allegation is remanded for retrial. In all other
respects, the judgment is affirmed.



                                                               MAURO                      , J.


We concur:


             NICHOLSON                , Acting P. J.


             HOCH                     , J.



                                             15
