Filed 2/5/16




                            CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FOURTH APPELLATE DISTRICT

                                     DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                        G052144

        v.                                           (Super. Ct. No. FVI1102631)

JERRY RAMIREZ AND CATHERINE                          OPINION
RODRIGUEZ VILLARREAL,

    Defendants and Appellants.



                 Appeal from a judgment of the Superior Court of San Bernardino County,
John M. Tomberlin, Judge. Reversed and remanded.
                 Edward J. Haggerty, under appointment by the Court of Appeal, for
Defendant and Appellant, Jerry Ramirez.
                 Kenneth H. Nordin, under appointment by the Court of Appeal, for
Defendant and Appellant, Catherine Rodriguez Villarreal.
                 Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and
Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
               A jury convicted defendants Jerry Ramirez and Catherine Rodriguez
Villarreal, respectively, of attempted murder and assault with a deadly weapon. But the
jury found them both not guilty of active participation in the Sureños, an alleged criminal
street gang, and the jury rejected gang sentencing enhancement allegations that the
attempted murder and the assault were committed for the benefit of the Sureños.
               In this appeal, defendants’ primary complaint is that the trial court
erroneously denied their motion to set aside the gang participation charges and the gang
enhancement allegations under Penal Code section 9951 (the 995 motion) and, as a result,
irrelevant but highly inflammatory gang evidence was admitted which deprived them of
their due process rights to a fair trial on the attempted murder and assault charges.
               We conclude the preliminary hearing evidence did not support the gang
participation charges or the gang enhancement allegations, so the 995 motion should have
been granted. We also determine the gang evidence erroneously admitted at trial violated
defendants’ due process rights and resulted in a fundamentally unfair trial. Therefore, the
judgment must be reversed. This disposition moots defendants’ remaining contentions.
                        FACTS AND PROCEDURAL HISTORY
               In 2011, the Mendoza family, Andy, Natalie, David, Ernest, Irma, and their
other siblings and mother, lived in a residence on Outer Hesperia Road in Victorville.2
Villarreal lived a few doors down from the Mendozas on the same street. Apparently, the
two families had lived peaceably for a long time. In fact, Villarreal had been one of
Irma’s childhood friends. Nevertheless on November 15, during a dispute between
Villarreal and Natalie, Villarreal allegedly hit Natalie with a baseball bat, and Villarreal’s
boyfriend Ramirez admittedly shot Andy.


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

       2 We refer to the members of the Mendoza family by their first names for clarity
and not out of any disrespect.

                                               2
              A complaint charged Ramirez and Villarreal with attempted, premeditated
murder of Andy (§§ 187, 664, subd. (a)); Villarreal with assault with a deadly weapon on
Natalie (§ 245, subd. (a)(1)); and both defendants with active participation in a criminal
street gang (§ 186.22, subd. (a) (gang participation)). The complaint also alleged
defendants committed the attempted murder and the assault for the benefit of, at the
direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1) (gang
enhancement); § 12022.53, subd. (e)(1)), and alleged Ramirez personally discharged a
firearm and caused great bodily injury (§ 12022.53, subds. (b), (c), (d) & (e)(1)).
              At the preliminary hearing, two sheriff’s deputies testified concerning
statements made by Andy, Natalie, and Ernest. Andy told the deputies he had gone
outside the family home to help Natalie, and Ramirez shot him in the face.
              Natalie confirmed Andy’s story. She said she had been talking on the
phone in her bedroom when she heard a car horn outside. She walked outside to
investigate and saw several people in front of her house, including Villarreal and
Ramirez. An argument started and Villarreal came at her with a baseball bat. Natalie
cried out for her family to help her and raised her arms to cover her face. Villarreal
swung the bat and hit Natalie’s left arm.
              According to Natalie, when Andy came out of the house and confronted
Ramirez, Ramirez pointed a gun at Andy’s face and fired. Andy fell to the ground, and
Ramirez and Villarreal and the other people with them got into several cars and fled.
Natalie said there had been a long-term disagreement between Andy and Ramirez, but
she did not specify a precipitating incident.
              Ernest said he grabbed a baseball bat to defend his family, but he dropped
the bat after he got outside and realized Andy had been shot. A bat was later found in
Ernest’s bedroom.
              Sheriff’s Deputy Tim Jackson testified as the prosecution’s gang expert, as
follows:

                                                3
DIRECT EXAMINATION BY PROSECUTOR:

“Q. Good morning, Deputy.

“A. Good morning.

“Q. Are you familiar with the Surenos?

“A. Yes, ma’am.

“Q. How are you familiar with him?

“A. The Surenos are a criminal street gang . . . based in the
southern half of California. Every Hispanic gang member
that resides south of Bakersfield is affiliated with the Surenos.
The Surenos were created by the Mexican Mafia, who are the
largest and most powerful prison gang in our country. The
Surenos are the foot soldiers, if you will, for the Mexican
Mafia to carry out their dirty work due to the criming, taxing,
assaults, murders, all those things. There’s only one gang
south of Bakersfield that has not aligned itself with being a
Sureno or the Mexican Mafia . . . .

“Q. Have you personally contacted Sureno members?

“A. Yes.

“Q. Approximately how many?

“A. Between the jail, custody settings, and patrol, over 100.

“Q. Do the Surenos have any rivals?

“A. Yes, the Nortenos.

“Q. And what, if any, symbols do the Surenos use?

“A. They utilize the number 13. It represents the Mexican
Mafia. They utilize the color blue. They utilize the word Sur
or Sureno to represent themselves.

“Q. And can you briefly describe the Surenos’ territory?


                               4
“A. As I stated before, the Surenos claim everything south of
Bakersfield in California.

“Q. Based on your background, training and experience, do
the Surenos have a primary purpose of committing offenses?

“A. Yes.

“Q. And has this gang established a pattern of criminal
activity?

“A. Yes.

“Q. What types of crimes?

“A. Anything from violent crimes against a person to
narcotics sales distribution, robberies, burglaries, auto theft.

“Q. Are you familiar with a person by the name of Toby
Stahlberg? And that’s spelled S-t-a-h-l-b-e-r-g, with a date of
birth of January 19, 1979?

“A. Yes.

“Q. Do you have an opinion as to whether or not he is a
member of the Surenos?

“A. Yes, I do.

“Q. What is that? What’s the basis of that opinion?

“A. Mr. Stahlberg is a self-admitted member of the Eastside
Rivas criminal street gang, who align themselves with the
Surenos and Mexican Mafia. His moniker is Traveiso, which
stands for ‘trouble.’ He has probably a rough estimate 20 or
so tattoos indicative of his gang membership.

“Q. And do you have an opinion as to whether or not he’s a
member of the Surenos?

“A. Yes, I do.



                                5
“Q. What is that opinion?

“A. He is.

“Q. Are you familiar with Mr. Stahlberg’s conviction of a
violation of [former] Penal Code Section 12021 and 186[.]22
in Court Case FVI1001976 with a date of incident on August
27th, 2010?

“A. Yes, ma’am.

“Q. Are you familiar with a person by the name of Alfonso
Coronado with a date of birth of July 6, 1983?

“A. Yes.

“Q. And how are you familiar with him?

“A. Alfonso Pancho Coronado is a member of the Eastside
Victoria criminal street gang, who also align themselves with
the Surenos.

“Q. Do you have an opinion as to whether or not Mr.
Coronado is a member of Sureno?

“A. Yes, I do.

“Q. And what is that opinion?

“A. He is.

“Q. Are you familiar with Mr. Coronado’s conviction under
Penal Code Section 11378 and 186[.]22 in Court Case
FVI1100791 with a date of incident on March 30th, 2011?

“A. Yes.

“Q. Are you familiar with the defendant Mr. Jerry Ramirez?

“A. Yes.

“Q. Do you see him in the courtroom today?



                              6
“A. Yes, I do.

“Q. During your investigation did you familiarize yourself
with any of the defendant’s tattoos?

“A. Yes, I did.

“Q. Based on your background, training and experience,
were any of his tattoos significant to you?

“A. Yes.

“Q. Which ones?

“A. Mr. Ramirez has several tattoos that are significant to
gang lifestyle due to the fact they’re not considered body art.
They’re not recognized by the general public as art or
recognized by the gang community. Mr. Ramirez has three
dots on his right arm, which is utilized by the gang
community standing for ‘My Crazy Life’ or ‘Mi Vida Loca.’
He also has a modified Aztec calendar on his left forearm.
It’s incomplete, but it contains the basics, if you will, of the
calendar. Aztec art is commonly used by the Mexican Mafia
and Surenos to discreetly represent gang affiliation. He also
has an Aztec war shield on his right shoulder. The Aztec war
shield is generally awarded to a Sureno after they’ve
committed some type of crime being violent for the Mexican
Mafia. It also is somewhat distorted. I would have to say that
the tattoo artist in that case probably didn’t know exactly
what he was trying to put on. But it has all the basics, the
three steps to make up the fundamentals of the tattoo with the
three steps of the Aztec warrior.

“He’s also got an Aztec temple on his ribcage area. Just
above the temple there’s an angel that has coincidently 13
wings, which is indicative of Mexican Mafia membership.
He’s got a star on the right ribcage area as well. It’s along
with the other tattoos in that area. And it’s a southern star
which technically does not exist. The southerners have
created a specific southern star to combat the northern star
from Norteno. They’ll change the number points on the star
and denote an S on the bottom, which Mr. Ramirez has.



                               7
“Q. Thank you. Now, based on your background, your
training and experience, do you have an opinion as to whether
or not the defendant Ramirez is an active Sureno member?

“A. Yes, I do.

“Q. What is that opinion?

“A. Based on the fact that he has tattoos, although discreet,
they are consistent with membership in a Sureno criminal
street gang. He also has a photograph that I was able to
locate via his Facebook where he’s wearing all blue, which is,
again, a color that aligns with Mexican Mafia and the
Surenos.

“Q. And based on your background, training and experience,
and the fact that you sat through this preliminary hearing, do
you have an opinion as to whether or not these crimes were
committed for the benefit of, at the direction of, or in
association with a criminal street gang for the specific
purposes of promoting, furthering, or assisting in criminal
conduct by its members?

“A. Yes, I do.

“Q. What is that opinion?

“A. This alleged crime benefits the Surenos. The more
violent crime Sureno gang members are willing to commit,
the larger their reputation will grow. In gang subculture,
violent crimes are revered and encouraged when compared to
the general public they would be frowned upon. This
reputation increases intimidation that the gang is able to
employ over other people, the general public, other gangs,
and even to law enforcement. If a gang or a gang member
has such a large reputation as being willing to commit a
violent crime such as shooting somebody in the face, there’s a
very good chance that nobody is going to report this person,
try to contact this person, and stop him from committing any
criminal activity.

“Q. And you spoke a little bit about reputation. Is that how
the defendant personally benefits within the gang?


                              8
“A. Yes.

“Q. And specifically in regards to . . . Villarreal, now in your
opinion is she an associate of the Surenos?

“A. Yes.

“Q. What do you base that opinion on?

“A. She is obviously boyfriend and girlfriend with the person
I believe to be a Sureno. Mr. Ramirez also has a tattoo of the
word ‘Flaca’ on his left ribcage area, and I believe that to be
Ms. Villarreal’s moniker.

“Q. And in what way do her actions benefit the gang?

“A. By supporting the activities of the defendant.”

CROSS EXAMINATION BY RAMIREZ’S COUNSEL

“Q. Good morning, sir.

“A. Good morning

“Q. Just so we’re on the same page, your determination of
Mr. Ramirez’ active gang affiliation with Sureno is based
entirely on the artwork on his body; is that right?

“A. Yes, sir. Unfortunately Mr. Ramirez declined to speak to
us during interview and - - he was being quite discreet with
gang affiliation, has not admitted during classification or any
other situation.

“Q. Okay.

“A. - - and

“Q. All right. People who admit during classification are put
in places where they’re going to be safe and other people are
going to be safe from them while they’re housed in jail.

“Is that a fair statement?



                               9
“A. Correct.

“Q. Okay. Mr. Ramirez declined to adopt any involvement
in any gang affiliation. Isn’t that true?

“A. Correct.

“Q. And do you know what a gang card is?

“A. Yes, sir.

“Q. You have no gang card on Mr. Ramirez. Isn’t this true?

“A. No. sir.

“Q. There’s no record of any contact with Mr. Ramirez
regarding any felony at all. Isn’t that true?

“A. Regarding any felony?

“Q. Yes.

“A. That I’m not sure of.

“Q. On Mr. Ramirez the typical tattoos that would evidence
someone being a member of Sureno would be the number 13.

“A. Yes, sir.

“Q. That’s not on Mr. Ramirez, is it?

“A. In the form of 13 feathers on his ribcage, yes.

“Q. So 13 feathers on what? A head dress?

“A. I believe it’s angel’s wings.

“Q. So 13 feathers on angel’s wings equates to the number
13 as far as Sureno is concerned?

“A. Yes, sir. . . . gang members are becoming savvy to the
gang enhancements. So they’re much more discreet with
tattoos . . . when they are contacted on the street . . . .


                              10
              “Q. So you think based on your expertise and no prior
              contacts or no history you believe based on your expertise
              that the tattoos on Mr. Ramirez were not just done at a tattoo
              shop by somebody who does tattoos, but were done such that
              they are not recognized by the general community as
              artwork?

              “[PROSECUTOR]: Objection. Vague. Speculation,

              “THE COURT: You may answer the question, if you know.

              “THE WITNESS: One tattoo that is coincidentally related to
              the Surenos - - or two tattoos that are coincidentally related I
              could say that possible not a gang member. With the large
              amount of tattoos that [Ramirez] has, all of which
              coincidentally are related, that’s how I decided they were not
              body art.

              “Q. He doesn’t have the work ‘Sur’ on him anywhere, S-u-r
              for Sureno?

              “A. No, sir.

              “Q. And within the general guise of the Surenos, meaning the
              southerners, within the southerners there are subsets such as
              Eastside Riva; is that correct?

              “A. Correct.

              “Q. There’s no connection that you know to Mr. Villarreal
              (sic) with any subset of any kind?

              “A. I was unable to identify any subset he may be related to.”
              At the end of the preliminary hearing, both defense attorneys argued the
gang evidence was insufficient to support the gang participation charges and the gang
enhancements. The magistrate agreed the gang evidence was “unusual” but found, “for
the standard of preliminary hearing I have a reasonable suspicion to believe that the
crimes charged were committed and the defendants have committed them.”



                                             11
              Thereafter the prosecutor filed an information with the same charges and
enhancements as the complaint, including the gang participation charges and the gang
enhancement allegations. Ramirez then filed the 995 motion to set aside the information
on the grounds he was committed without probable cause.
              The 995 motion asserted the preliminary hearing evidence was insufficient
to support the gang enhancement allegations under section 186.22, subdivision (b)(1)(C),
and it argued the gang participation charges under section 186.22, subdivision (a) (section
186.22(a)), required more than nominal or passive involvement in a criminal street gang.
              The prosecutor filed opposition to the 995 motion which emphasized the
minimal evidentiary showing required at a preliminary hearing, and argued Jackson’s
testimony that Ramirez was a Sureño and that he committed the alleged crimes to benefit
the Sureños was enough to support the gang enhancement allegations.
              At the hearing, the judge granted Villarreal’s request to join in the 995
motion. Counsel mostly submitted on their written arguments. However, Ramirez’s
counsel also argued his tattoos were insufficient to support Jackson’s opinion that he was
a member of the Sureños, and Villarreal’s counsel argued her gang liability was entirely
derivative of Ramirez’s alleged membership.
              At the conclusion of the hearing on the 995 motion the judge stated: “To
me, it’s a close call. [¶] But I’m not here to re-weigh the evidence. I’m here to determine
whether or not [the magistrate] could reasonably have evaluated this evidence and come
up with the strong suspicion necessary to hold . . . your clients . . . to answer for the gang
allegation. [¶] And I certainly do not believe it was unreasonable for him to make that
call. I don’t believe it was unsupported by the evidence. And I don’t find – There is a
substantial basis for his holding order, and so I am going to deny the motions.”
              After the judge denied the 995 motion, the case proceeded to trial on all of
the charges and enhancements contained in the information, including the gang
participation charges and the gang enhancement allegations.

                                              12
                                      DISCUSSION
1. Denial of 995 Motion
              Defendants contend the judge erroneously denied their 995 motion because
the preliminary hearing evidence was insufficient to support the gang participation
charges and the gang enhancement allegations in the information.3 We agree.
              A. General Principles and Standard of Review
              The function of the magistrate at a preliminary hearing is to determine
whether there is “sufficient cause” to believe defendant is guilty of the charged offense.
(§§ 871, 872.) “‘[S]ufficient cause’” equates to “‘reasonable and probable cause’” or “a
state of facts as would lead a [person] of ordinary caution or prudence to believe and
conscientiously entertain a strong suspicion of the guilt of the accused.” (People v.
Uhlemann (1973) 9 Cal.3d 662, 666-667.)
              “‘The purpose of a motion to set aside the accusatory pleading under
section 995 is to review the sufficiency of the indictment or information on the basis of
the record made before the grand jury in the one case or the magistrate at the preliminary
hearing in the other.’” (Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 269.)
“‘“An information will not be set aside . . . if there is some rational ground for assuming
the possibility that an offense has been committed and the accused is guilty of it.”’
[Citation.]” (People v. Arjon (2004) 119 Cal.App.4th 185, 193 (Arjon).)
              On appeal following the denial of a 995 motion, we review the preliminary
hearing magistrate’s determination directly and disregard the judge’s 995 ruling. (People
v. Bautista (2014) 223 Cal.App.4th 1096, 1101.)


       3  Villarreal’s appellate counsel filed a brief pursuant to Anders v. California
(1967) 386 U.S. 738, 744 and People v. Wende (1979) 25 Cal.3d 436, and the only
potential issue she identified is whether a bat is a deadly weapon. She did not join in
Ramirez’s brief. Nevertheless, for the reasons set forth below, we conclude both
Villarreal’s and Ramirez’s due process rights to a fundamentally fair trial were
compromised. Therefore, the judgment must be reversed as to both defendants.

                                             13
              B. Criminal Street Gang – Section 186.22, Subdivision (f)
              Defendants argue the evidence adduced at the preliminary hearing was
insufficient to support the prosecution’s contention that the Sureños are a single “criminal
street gang” within the meaning of section 186.22, subdivision (f) (section 186.22(f)).
We find this argument is persuasive, for reasons which we will explain.
              To prove the existence of a criminal street gang, the prosecution is required
to demonstrate the alleged gang satisfies the separate elements of the definition set out in
section 186.22 (f), which provides the term “‘criminal street gang’ means any 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 . . . 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, subds. (a) & (b); People v. Prunty (2015)
62 Cal.4th 59, 67, 71-76 (Prunty).)
              “[W]here the prosecution’s case positing the existence of a single ‘criminal
street gang’ for purposes of section 186.22(f) turns on the existence and conduct of one or
more gang subsets, then the prosecution must show some associational or organizational
connection uniting those subsets.” (Prunty, supra, 62 Cal.4th at p. 71.) “Whatever
theory the prosecution chooses to demonstrate that a relationship exists, the evidence
must show that it is the same ‘group’ that meets the definition of section 186.22(f)—i.e.,
that the group committed the predicate offenses and engaged in criminal primary
activities—and that the defendant sought to benefit under section 186.22[, subdivision]
(b). But it is not enough . . . that the group simply shares a common name, common
identifying symbols, and a common enemy. Nor is it permissible for the prosecution to
introduce evidence of different subsets’ conduct to satisfy the primary activities and
predicate offense requirements without demonstrating that those subsets are somehow
connected to each other or another larger group.” (Id. at p. 72, fn. omitted.)

                                             14
              Reviewing the preliminary hearing evidence in light of the framework our
Supreme Court set forth in Prunty, it is apparent the prosecution failed to adequately
show the Sureños are a single criminal street gang under section 186.22(f). The
prosecution’s theory underlying the gang participation charges and the gang enhancement
allegations was that defendants actively participated in and committed the attempted
murder and the assault for the benefit of the Sureños. Therefore, “the prosecution needed
to show that the same group engaged in illicit primary activities, and committed the
predicate offenses.” (Prunty, supra, 62 Cal.4th at p. 82.)
              The preliminary hearing evidence as to the primary activities requirement
was likely sufficient. Jackson testified the Sureños engage in “[a]nything from violent
crimes against a person to narcotics sales distribution, robberies, burglaries, auto theft.”
              But the preliminary hearing evidence as to the predicate offenses
requirement fell short. Jackson referred to two predicate offenses involving two alleged
Sureño subsets: prohibited possession of a firearm by Stahlberg, a self-admitted member
of the Eastside Rivas gang; and possession of a controlled substance for sale by
Coronado, a member of the Eastside Victoria gang, according to Jackson.
              Although Jackson testified the Eastside Rivas and Eastside Victoria gangs
“align themselves with the Sureños,” he otherwise provided no evidence that could
connect these gangs to one another, or to an overarching Sureño criminal street gang.
Jackson did not describe any evidence tending to show collaboration, association, direct
contact, or any other relationship between the Eastside Rivas and Eastside Victoria.
              Moreover, Jackson’s testimony did not indicate the Eastside Rivas and
Eastside Victoria gangs shared information, defended the same claimed turf, had
members commonly present in the same vicinity, or otherwise behaved in a manner that
would permit the inference of an associational or organizational connection among them.
Nor did his testimony demonstrate the Eastside Rivas and Eastside Victoria, or any of
their members, self-identified as members of the larger Sureño association.

                                             15
              Jackson did testify about the Sureños existence “in the southern half of
California.” Jackson also claimed, “Every Hispanic gang member that resides south of
Bakersfield is affiliated with the Surenos.” But Jackson never addressed the Sureño
gang’s relationship to the Eastside Rivas or Eastside Victoria gangs specifically. And in
describing the Eastside Rivas and Eastside Victoria, Jackson offered no evidence any of
their members behaved in a manner that conveyed their identification with the Sureños.
              Instead, Jackson simply described the Eastside Rivas and Eastside Victoria
gangs by name, characterized them as aligned with the Sureños, and testified as to the
alleged predicate offenses. He offered no additional information about the Eastside Rivas
and Eastside Victoria members’ behavior or practices that could reasonably lead the
magistrate to conclude they shared an identity with the Sureños. So the magistrate had no
way to connect the gangs that committed the predicate offenses to the larger Sureños.
              Jackson also testified: “The Surenos were created by the Mexican Mafia,
who are the largest and most powerful prison gang in our country. The Surenos are the
foot soldiers, if you will, for the Mexican Mafia to carry out their dirty work due to the
criming, taxing assaults, murders, all those things.” While this evidence might permit the
inference that various alleged gang subsets share a common origin, it does not indicate
whether the Eastside Rivas and Eastside Victoria gangs, the specific alleged subsets
involved in committing the predicate offenses, have any ongoing relationship (the kind of
relationship that amounts to being part of the same group) with the Sureños.
              Jackson claimed the Sureños “utilize the number 13,” which “represents the
Mexican Mafia,” they “utilize the color blue” and “the word Sur or Sureno to represent
themselves,” and their rivals are the Norteños. But this evidence does not show the
Eastside Rivas and Eastside Victoria gangs “are united together or with a larger group as
a single ‘organization, association, or group,’ as we have explained above.” (Prunty,
supra, 62 Cal.4th at pp. 83-84.) And none of Jackson’s testimony addressed whether the
Eastside Rivas and Eastside Victoria gangs even exhibited these common characteristics.

                                             16
              Finally, Jackson’s opinion the Sureños are a criminal street gang is “purely
conclusory and essentially of no use to the fact finder. [Citation.]” (Prunty, supra, 62
Cal.4th at p. 85.) Jackson did not describe any facts tending to show an organizational or
associational connection among the Eastside Rivas and Eastside Victoria gangs, nor did
he articulate any reasons for concluding these gangs are part of a single larger criminal
street gang. He also did not describe any material he relied on in reaching his opinion on
this point. So his opinion that the Sureños are a criminal street gang had no value, and
the magistrate could not rely on it to find the existence of a criminal street gang. (Ibid.)
              In sum, the evidence was insufficient to support the inference the Sureños
are a single criminal street gang under 186.22(f). The critical shortcoming was the lack
of an associational or organizational connection between the alleged Sureño subsets that
committed the predicate offenses, the Eastside Rivas and Eastside Victoria gangs, and the
larger gang that defendants allegedly actively participated in and sought to benefit, the
Sureños. The absence of this necessary connection is fatal to the gang participation
charges and the gang enhancement allegations. (Prunty, supra, 62 Cal.4th at p. 84.)
              C. Gang Participation Charges – Section 186.22, Subdivision (a)
              Even assuming for the sake of argument the preliminary hearing evidence
was sufficient to show the Sureños are a single criminal street gang for purposes of
section 186.22(f), it was not sufficient to support the magistrate’s determination on the
gang participation charges under section 186.22(a).
              “The elements of the gang participation offenses in section 186.22(a) are:
First, active participation in a criminal street gang, in the sense of participation that is
more than nominal or passive; second, knowledge that the gang’s members engage in or
have engaged in a pattern of criminal gang activity; and third, the willful promotion,
furtherance, or assistance in any felonious criminal conduct by members of that gang.”
(People v. Rodriguez (2012) 55 Cal.4th 1125, 1130 (Rodriguez).) The deficiencies in the
preliminary hearing evidence in this case concern all three elements.

                                               17
              With respect to the first element, defendants correctly observe there was
insufficient evidence that their alleged participation in the Sureños was anything more
than nominal or passive.4 Jackson did opine Ramirez is “an active Sureno member,” and
Villarreal is “an associate of the Surenos.” But an expert’s opinion “‘is no better than the
facts on which it is based.’” (People v. Gardely (1996) 14 Cal.4th 605, 618.)
              The only facts linking Ramirez to the Sureños were his tattoos and his
Facebook photo, “where he’s wearing all blue . . . .” Moreover, the only facts linking
Villarreal to the Sureños were her romantic relationship with Ramirez, and the “Flaca”
tattoo on his ribcage, which is supposedly her gang moniker.
              These facts are insufficient to support an inference that defendants’ alleged
participation in the Sureños was anything more than nominal or passive. Once more,
Jackson’s opinions to the contrary are “purely conclusory and essentially of no use to the
fact finder. [Citation.]” (Prunty, supra, 62 Cal.4th at p. 85.)
              With respect to the second element, the preliminary hearing evidence is
also insufficient to support an inference defendants had knowledge that Sureños members
“engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22(a);
Rodriguez, supra, 55 Cal.4th at p. 1130.) In fact, there is insufficient evidence in the
record from which the magistrate could infer that defendants had any knowledge at all
about the activities of the Sureños.


       4  The Attorney General asserts defendants forfeited any challenge to the gang
participation charges by not including them in the 995 motion. The Attorney General is
mistaken. As noted above, the 995 motion argued active participation under section
186.22(a) required more than nominal or passive involvement in a criminal street gang.
Specifically, the 995 motion observed that the United States Supreme Court in Scales v.
United States (1961) 367 U.S. 203, 223 stated ‘“the distinction between ‘active’ and
‘nominal’ membership is well understood in common parlance.”’ In any event, as we
will explain, the judge’s erroneous denial of the 995 motion implicates both defendants’
substantial rights.



                                             18
              With respect to the third element of the charges under section 186.22(a), the
prosecution must show the alleged gang participant committed “an underlying felony
with at least one other gang member.” (Rodriguez, supra, 55 Cal.4th at p. 1134, italics
added.) “Although the People might prefer a different statute, section 186.22(a) reflects
the Legislature’s carefully structured endeavor to punish active participants for
commission of criminal acts done collectively with gang members.” (Id. at p. 1139.)
              While the evidence as to Ramirez’s alleged membership in the Sureños was
likely sufficient for preliminary hearing purposes, the evidence as to Villarreal’s alleged
membership was not. Jackson only opined she was an associate, not a member. And that
opinion was based solely on her relationship with Ramirez and the tattoo on his ribcage.
Jackson basically inferred Villarreal was an associate, because Ramirez was a member.
But these facts do not support an inference Villarreal was a member of the Sureños.
              Also, while Natalie told the deputies she saw several people in front of her
house with defendants, the prosecution presented no evidence that any of those people
were Sureños members. So it appears only one Sureño member was involved, at most.
              Hence, the preliminary hearing evidence was insufficient to support the
section 186.22(a) gang participation charges. There was no “‘“rational ground for
assuming the possibility that”’” the gang participation offenses has been committed, and
that defendants were “‘“guilty of it.”’” (Arjon, supra, 119 Cal.App.4th at p. 193.)
              D. Gang Enhancement Allegations – Section 186.22, Subdivision (b)(1)
              Again assuming the Sureños are a criminal street gang, the preliminary
hearing evidence was also insufficient to support the gang enhancement allegations under
section 186.22, subdivision (b)(1) (section 186.22(b)(1)). Here, “the prosecution must
prove that the underlying crime was ‘committed for the benefit of, at the direction of, or
in association with any criminal street gang’ (the gang-related prong), ‘with the specific
intent to promote, further, or assist in any criminal conduct by gang members’ (the
specific intent prong). [Citations.]” (People v. Rios (2013) 222 Cal.App.4th 542, 564.)

                                             19
              The deficiencies in the preliminary hearing evidence in this case concern
both prongs. As to the gang-related prong, Jackson opined the attempted murder and the
assault benefitted the Sureños. He said, “The more violent crime Surenos gang members
are willing to commit, the larger their reputation will grow. In gang subculture, violent
crimes are revered and encouraged when compared to the general public they would be
frowned upon. This reputation increases intimidation that the gang is able to employ
over other people, the general public, other gangs, and even to law enforcement.”
              In essence, Jackson opined that all violent crimes committed by Sureño
members benefit the Sureños because they increase the Sureños’ reputation. Of course,
“Expert opinion that particular criminal conduct benefited a gang by enhancing its
reputation for viciousness can be sufficient to raise the inference that the conduct was
‘committed for the benefit of . . . a[ ] criminal street gang’ within the meaning of section
186.22(b)(1). [Citations.]” (People v. Albillar (2010) 51 Cal.4th 47, 63 (Albillar).)
              But in this case, Jackson’s benefit opinion proves too much. Assume
hypothetically Ramirez was a member of the Eastside Victoria gang and Andy was a
member of the Eastside Rivas gang. Next, recall Jackson opined, “Every Hispanic gang
member that resides south of Bakersfield is affiliated with the Surenos.” Then, according
to Jackson’s opinion, when Ramirez shot Andy, the Sureños’ reputation was enhanced.
In other words, according to Jackson, the Sureños gang as a whole benefits when one
Sureño member shoots another Sureño member. This obviously makes no sense.
              Further, no other preliminary hearing evidence supports an inference the
attempted murder of Andy or the assault on Natalie was gang related. For example, no
gang signs were flashed, no gang names were called out, and no gang attire was worn.
Plus, while there is some evidence Ramirez actually is a gang member and Villarreal
might be a gang sympathizer, there is no evidence Andy or Natalie are gang members.
Likewise, there is no evidence the disputes between Andy and Natalie on the one hand,
and Ramirez and Villarreal on the other, had anything to do with any gang.

                                             20
              Regarding the specific intent prong, when the “evidence establishes that the
defendant intended to and did commit the charged felony with known members of a
gang, 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.) In this case, even if the evidence establishes that defendants intended to
attack Natalie and Andy together, and that they assisted each other in doing so, as noted,
there was insufficient evidence to show they were both known members of the Sureños.
Thus, there is insufficient evidence defendants had the required specific intent.
              In short, there was no preliminary hearing evidence apart from Jackson’s
purely conclusory and factually unsupported opinions that the attempted murder and the
assault were committed for the benefit of, at the direction of, or in association with the
Sureños, and with the specific intent to promote, further, or assist in any criminal conduct
by Sureño members. Consequently, the preliminary hearing evidence was insufficient to
support the section 186.22(b)(1) gang enhancement allegations in this case.
2. Prejudice at Trial
              Having concluded the judge erroneously denied the 995 motion because the
preliminary hearing evidence was insufficient to support the gang participation charges
and the gang enhancement allegations, we must next determine if that error prejudiced
defendants at trial. (People v. Crittenden (1994) 9 Cal.4th 83, 136-137.)
              After the 995 motion was denied, the case proceeded to trial on all of the
charges and enhancements contained in the information, including the gang participation
charges and the gang enhancements. As a direct result, prejudicial gang evidence, which
was irrelevant to the attempted murder and assault charges, was erroneously admitted at
trial. Still, the erroneous admission of the gang evidence does not require reversal unless
it is reasonably probable defendants would have achieved a more favorable result on the
attempted murder and assault charges had the gang evidence been excluded. (People v.
Richardson (2008) 43 Cal.4th 959, 1001; People v. Watson (1956) 46 Cal.2d 818.)

                                             21
              At trial Andy, Natalie, Ernest and David all testified about the incident.
They heard a car horn, and David went outside to investigate. He found Ramirez and
Villarreal in an SUV. David asked Ramirez what he was doing, and Ramirez laughed
and said, “Where’s your brother?” David told Ramirez his brother was inside, and he
threatened to “get” Ramirez for honking his horn.
              Natalie went to the front door. She saw Villarreal standing in front of the
door, holding a baseball bat. There were three girls behind Villarreal, and three cars with
“people in them” parked on the street. Ramirez was in an SUV, and two or three other
men were standing nearby.
              Natalie walked about 10 steps outside of her house and told Villarreal “she
was a scary bitch because she brung (sic) a bat.” Villarreal charged at Natalie, swung her
bat, and hit Natalie’s left arm. Villarreal was about to hit Natalie again when Andy,
David, and Ernie ran outside.
              Andy saw Villarreal hitting Natalie with a baseball bat. He yelled “stop,”
and Villarreal backed away. Ramirez walked up and said something like, “What’s up
fool?” Andy then saw Ramirez lift his arm. There was a flash, a hard blow to the face,
and then Andy blacked out.
              After Andy was shot, Ernie grabbed a baseball bat and raised it over his
head in an apparent attempt to hit Ramirez. But Andy told him to stop. Ernest denied
threatening or hitting anyone with the bat. He said he picked up the bat because he
thought Ramirez and Villarreal were going to escape.
              Ramirez also testified about the incident. Ramirez went to Villarreal’s
home after work that night. She told him she was having a fight with her neighbor,
Natalie, on Facebook. Ramirez acknowledged he and Andy had been involved in a “prior
incident,” and said he and Villarreal drove over to the Mendoza’s home to find out “what
was going on or try to fix the situation.” He only intended to talk to Andy, but admitted
he kept a handgun in his car “[f]or protection.”

                                             22
              When they arrived at the Mendoza’s home, Ramirez honked his horn and
waited for someone to come outside. David came out of the house, and asked Ramirez,
“What’s the problem?” Ramirez said he needed to talk to Andy and David went back
inside the home.
              Ramirez said that when David came back outside, he brought all of his
brothers with him and Andy had a baseball bat in his hands. The Mendoza brothers
advanced en masse toward Ramirez. Ramirez stepped back, opened his car door, and
retrieved his gun out of the door panel. Andy cocked the bat over his head and walked
toward Villarreal. Andy gave the bat a half swing and narrowly missed Villarreal’s head.
When Andy swung at Villarreal a second time, Ramirez, who was about three to five feet
away, fired one shot and hit Andy’s face. Ramirez said he fired because he thought Andy
was going to hit Villarreal in the head with the bat.
              Thus, conflicting trial testimony about the incident presented the jury with
two plausible factual scenarios. On one hand, the Mendozas testified Villarreal
confronted Natalie and hit Natalie with a baseball bat, and Ramirez shot Andy when
Andy tried to intervene. On the other hand, Ramirez testified Andy came at Villarreal
with a baseball bat, and Ramirez shot Andy in defense of Villarreal and himself.
              So the jury’s evaluation of Ramirez’s credibility was critical. But there is a
substantial likelihood the jury’s evaluation of his credibility was colored by the gang
evidence admitted at trial. Jackson again testified as a gang expert, and repeated most of
his preliminary hearing testimony, but with more detail. He testified at length about the
origins and activities of the Mexican Mafia and the Sureños, and their rivalry with the
Norteños. He said the Sureños are foot soldiers for the Mexican Mafia, and have
“committed everything from attempted murder, robbery, extortion, narcotics, trafficking,
narcotic sales, possession of firearms, possession of loaded firearms, kidnapping, false
imprisonment, grand theft auto, basically any crime.”



                                             23
               Jackson opined Ramirez was an active participant in the Sureños, based
upon his tattoos, his alleged moniker “Knuckles,” and his brothers’ documented gang
memberships. Jackson opined Villarreal was a Sureños associate, “Based on the fact that
she has a moniker of Fla[c]a . . . . And the fact that she was willing to participate in a
brazen international [sic] crime . . . .”
               Jackson testified the crimes benefitted the Sureños. He said “[t]he fact that
the defendants carried out a crime that was this brazen . . . , ruthless, irrational . . . .
Those things bolster street reputation. They bolster reputation of the gang members.
They bolster the reputation of the gang. That reputation gets gangsters, gangs what they
want. [¶] They want that fear in the community . . . .”
               None of this gang evidence was relevant to the attempted murder and
assault charges, but its potential prejudicial effect upon them was manifest. “California
courts have long recognized the potentially prejudicial effect of gang membership. . . . ‘It
is fair to say that when the word ‘gang’ is used . . . , one does not have visions of the
characters from ‘Our Little Gang’ series. The word “gang”. . . connotes opprobrious
implications. . . . [T]he word “gang” takes on a sinister meaning when it is associated
with activities.’ [Citation.]” (People v. Albarran (2007) 149 Cal.App.4th 214, 223) It
also tended to impermissibly show defendants’ bad character as a means of creating an
inference they committed these charged offenses. (Evid. Code, § 1101, subd. (a).)
               Under these circumstances, there is a reasonable probability defendants
would have achieved a more favorable result on the attempted murder and assault charges
if the 995 motion had been granted and the gang evidence had been excluded. For these
reasons we conclude the court’s erroneous denial of the 995 motion resulted in a
miscarriage of justice (Evid. Code, § 353) and violated both defendants’ state and federal
constitutional due process rights to a fundamentally fair trial. (Estelle v. McGuire (1991)
502 U.S. 62, 70; People v. Partida (2005) 37 Cal.4th 428, 439, 435.) Accordingly, the
judgment must be reversed.

                                                24
                                    DISPOSITION
             The judgment is reversed and the matter is remanded for a new trial or
other disposition of the attempted murder and assault charges and the firearm and great
bodily injury enhancement allegations.



                                                THOMPSON, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



MOORE, J.




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