Filed 11/6/15 P. v. Bettencourt CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040438
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1089619)

         v.

WILLIAM ZACHARY BETTENCOURT,

         Defendant and Appellant.




                                           I.        INTRODUCTION
         Defendant William Zachary Bettencourt pleaded no contest to conspiracy to
commit a violation of Vehicle Code section 1808.45 [unauthorized disclosure of
Department of Motor Vehicles (DMV) records]. (Pen. Code, § 182, subd. (a)(1).)1
Defendant also admitted that he had two prior felony convictions that qualified as
strikes. (§§ 667, subds. (b)-(i), 1170.12.) After a court trial, the trial court found that
defendant committed the conspiracy for the benefit of a criminal street gang. (§ 186.22,
subd. (b)(1)(A).) The trial court struck the prior convictions and sentenced defendant to
prison to the upper term of three years for the conspiracy, with a consecutive four-year
upper term for the gang allegation.


         1
             All further statutory references are to the Penal Code unless otherwise indicated.
       On appeal, defendant challenges the sufficiency of the evidence to support the
gang allegation. Defendant contends there was insufficient evidence that the conspiracy
was “committed for the benefit of, at the direction of, or in association with any criminal
street gang” (§ 186.22, subd. (b)(1)) and insufficient evidence that he acted with “the
specific intent to promote, further, or assist in any criminal conduct by gang members”
(ibid.). Defendant also contends there was insufficient evidence that his gang—the
Hell’s Angels—was a “criminal street gang” within the meaning of section 186.22,
subdivision (f), which requires that one of the gang’s primary activities is the commission
of certain enumerated offenses and that the members of the gang “individually or
collectively engage in or have engaged in a pattern of criminal gang activity.” We will
reverse the judgment and direct the trial court to vacate the true finding on the gang
allegation.

                                 II.      BACKGROUND
       A.     Factual Background
       On September 17, 2010, police executed a search warrant at defendant’s residence.
The police found “a significant amount of DMV information regarding various
individuals” in defendant’s possession.
       Defendant had a broken leg at the time of the search, and he was in a wheelchair.
Police found a 9-millimeter pistol with a loaded magazine and a “large amount of
Hells Angel[s] gang paraphernalia.” Defendant “freely admitted” that he was a
“ ‘full patch’ ” member of the Hells Angels.
       A cell phone found at defendant’s residence contained a number of text messages
to and from Santa Clara Police Officer Clay Rojas. Some of the text messages indicated
that Rojas owed defendant money. In other text messages, defendant requested that
Rojas run warrants checks and obtain information from the DMV on certain vehicles and
individuals. Rojas provided that information to defendant in text messages.



                                               2
       One exchange of text messages occurred on August 16, 2010. Defendant texted
Rojas, “$?” Rojas texted back, “Aug 27 for sure. Sorry bro. . . .” Defendant texted
Rojas that he was having surgery on his leg soon due to a motorcycle accident.
       On August 19, 2010, defendant and Rojas again exchanged text messages.
Defendant indicated that his surgery was over, and he asked Rojas to run his name and
“check status.” Rojas later texted back, “Clear.”
       Also on August 19, 2010, defendant exchanged text messages with someone
police later determined to be Viviana Rodriguez. Rodriguez provided a license plate
number and asked defendant to “get info on who it’s registered [to].” Defendant then
texted Rojas, asking him to “run” that license plate. Rojas indicated he would do so.
       On August 20, 2010, Rodriguez sent defendant a text message correcting the
license plate number. Defendant then sent the new number to Rojas via text message.
Rojas texted defendant that the license plate belonged to a 2005 Chrysler registered to a
Sean Walsh in Sacramento. Rojas indicated he would provide an address the next day.
Defendant then provided the information to Rodriguez via text message. Defendant
asked if the name meant anything. Rodriguez said no and asked defendant for advice.
Defendant suggested she call him, and he asked, “Baby mama dram[a]?” Rodriguez
replied, “Lol kinda beyond that” and indicated she would call defendant.
       On September 1, 2010, defendant texted Rojas, indicated he wanted to meet in
Santa Clara. Rojas agreed and indicated he was concerned about being seen. Rojas
indicated that defendant should park in a specific parking lot. Rojas said he would
“jump in” to defendant’s car. He texted, “Then we drive.” Defendant indicated he had
someone driving him, noting, “but he is good.” Rojas responded, “Wut?? Come on
dude…” Rojas also asked, “Is he a member? U trust?” Defendant responded, “Trust
me.” Defendant also responded, “YES!!! I would never put u in a cross. I just can’t
drive cause of my leg.” Rojas texted back, “I trust u. U trust him?” Defendant wrote,
“Yes. He is a stand up guy 4sure.” Rojas wrote, “Fuck dude. U know I’m all about

                                             3
operational security! Meaning I don’t trust dick. I’m putting it out there on this one.
I trust u.” Defendant wrote, “Trust me. It is all good.” Defendant soon indicated, in a
text message, that he had arrived at the meeting spot.
       On September 2, 2010, defendant sent Rojas a text message with a woman’s name
and date of birth. Defendant explained, “That’s the girl my friend is asking about over
the child custody crap,” and he asked Rojas to check her record for “dirt.” Rojas wrote
back that the woman had “an old DUI from 05’ and a bunch of vehicle code violations,”
but an otherwise clean record. Defendant forwarded that information to Rodriguez.
       As noted above, a search warrant was executed at defendant’s residence on
September 17, 2010. Defendant was arrested on October 14, 2010.
       B.     Procedural Background
       Defendant, Rojas, and Rodriguez were charged with conspiracy to commit a
violation of Vehicle Code section 1808.45 [unauthorized disclosure of DMV records].
(§ 182, subd. (a)(1).) The complaint alleged two overt acts: (1) Rojas electronically
transmitted confidential information to defendant, and (2) defendant electronically
transmitted confidential information to Rodriguez. Both overt acts were alleged to have
occurred between August 19, 2010 and September 3, 2010. The complaint alleged that
defendant had two prior convictions that qualified as strikes. (§§ 667, subds. (b)-(i),
1170.12.)
       On June 19, 2013, the prosecutor moved to amend the complaint to add an
allegation that defendant committed the conspiracy for the benefit of a criminal street
gang. (§ 186.22, subd. (b)(1)(A).) Also on that date, defendant pleaded no contest to the
conspiracy charge (admitting the first overt act only) and admitted the strike allegations.
       A court trial was held on the gang allegation. The prosecutor submitted 91 pages
of documentary evidence, and defendant’s trial counsel submitted a letter brief arguing
that there was (1) insufficient evidence to support a finding that the conspiracy was
committed for the benefit of, at the direction of, or in association with a criminal street

                                              4
gang and (2) insufficient evidence to support a finding that he acted with the specific
intent to promote, further, or assist in any criminal conduct by gang members. (See
§ 186.22, subd. (b)(1).)
       C.     Evidence Submitted to Prove Gang Allegation
       The prosecution’s documentary evidence included a detailed description of the
investigation prepared by Santa Clara Police Sergeant Brian Gilbert. In that document,
Sergeant Gilbert stated that gangs such as the Hells Angels often attempt to obtain
confidential or restricted information from law enforcement. “The disclosure of such
information provides a direct benefit to the gang, their reputation and their activities.”
He explained that gangs such as the Hells Angels “utilize such confidential information
to conduct more complete background checks on associates or prospective members to
avoid penetration by law enforcement or their informants who would jeopardize their
illegal enterprises.” Sergeant Gilbert further explained, “Witnesses and victims are less
likely to cooperate with law enforcement if they believe the gang can find their location
by obtaining confidential information and the dissemination of such information
seriously jeopardizes ongoing criminal investigations and prosecutions and poses
significant risks to law enforcement and prosecution personnel.” Finally, he explained
that the Hells Angels are “well known for violence and intimidation,” such that “[h]aving
access to, and/or causing persons to believe they have access to, confidential information,
benefits the gang as persons who might provide information regarding their criminal
activities are dissuaded from doing so based upon the belief that persons loyal to the gang
would be able to find them or their families.” Moreover, having access to such
information would increase defendant’s own “status within the gang.”
       The prosecution’s evidence also included the affidavit of Sergeant Dan
Livingston, which was submitted in connection with a search following a battery
defendant committed in June of 2010. Livingston had contacted over 250 gang members
and affiliates, had attended gang trainings that included training on the Hells Angels, and

                                              5
had been involved in at least 100 gang-related investigations. Sergeant Livingston
alleged that he knew “from training and experience that the Hells Angels Outlaw
Motorcycle Gang is a gang as defined in section 186.22 PC,” specifying, “the gang has
three or more members, the gang has a common identifying sign/symbol, and its
members have collectively or individually engaged in a pattern of criminal gang activity
as defined in section 186.22(e) PC.” Sergeant Livingston described the structure of the
Hells Angels. He stated that the Hells Angels “commit assaults and other acts of violence
and threats of violence in order to bolster and support the criminal purposes of the
organization and enhance the criminal dominance of the gang and status of its members.”
He knew that the Hells Angels “engage in witness intimidation in order to protect their
members from prosecution.”
       An “opinion document” written by Department of Justice training coordinator
Jorge Gil-Blanco was also submitted by the prosecution. Gil-Blanco had attended
training on the Hells Angels, and he had conducted and reviewed investigations involving
the Hells Angels. He had previously testified as an expert on the Hells Angels.
According to Gil-Blanco, “the Hells Angels Outlaw Motorcycle Gang is primarily
involved in the sales, possession for sales, and manufacturing of controlled substances,
robberies, burglaries, assaults, assault with a deadly weapon, weapons violations, witness
intimidation, and murder.” Gil-Blanco further opined that defendant was “acting for the
benefit, and in furtherance of the Hells Angels Outlaw Motorcycle Gang” in this case.
This opinion was “based on historical evidence seized from other Hells Angels Outlaw
Motorcycle Gang members, as well as the evidence established in this case.”
       Gil-Blanco’s curriculum vitae described his “Specialized Experience in
Investigation of Outlaw Motorcycle Gangs.” Gil-Blanco described a number of
investigations that he had been involved in or consulted on. For instance, in August of
2011, he had monitored the service of a search warrant at the Sonoma Hells Angels’
clubhouse as part of an investigation into an assault in Lake County. He had also

                                             6
monitored the service of a search warrant at the Dago Hells Angels’ clubhouse as part of
an investigation into a number of crimes in San Diego.
       The prosecution’s evidence also included documents from the Ventura County
prosecutions of Martin Minoru Kada, Scott Robert Sutton, and James David Ivans.
Kada had been charged with transportation of methamphetamine, transportation of
hydrocodone, and being under the influence of a controlled substance. He had pleaded
guilty to transportation of methamphetamine. Sutton had been charged with possession
of a firearm by a felon, possession of ammunition by a felony, carrying a loaded firearm,
and evading a police officer. He had pleaded guilty to possession of a firearm by a felon.
Ivans had been charged with transportation of a controlled substance, and he had pleaded
guilty to that offense.
       D.     Arguments and Trial Court Finding
       In his letter brief, defendant’s trial counsel argued that defendant’s membership in
the Hells Angels was not related to the charged offense. He asserted that there was no
evidence that a member of the Hells Angels had directed defendant to commit the crime
and that there was no evidence Rojas or Rodriguez were members of the Hells Angels.
He further asserted that the evidence defendant obtained from Rojas benefited only
Rodriguez and that there was no evidence the crime also benefitted the Hells Angels.
Finally, he asserted that the evidence showed that defendant’s intent was to assist
Rodriguez and that the evidence did not support a finding that defendant committed the
crime with the intent of promoting, furthering, or assisting members of the Hells Angels.
       At the hearing, the prosecutor referred to the information provided by
Sergeant Gilbert regarding how access to confidential information through a law
enforcement officer “benefits the Hells Angels as a criminal enterprise” by giving the
gang “more credibility, more fear on the street” and by dissuading witnesses from coming
forward. The prosecutor conceded that there was no evidence defendant’s crime was
committed “at the direction of” of the gang, but he argued that the trial court could find

                                             7
that the crime was committed in “association with” the gang because the text messages
indicated that a member of the Hells Angels drove defendant to the meeting with Rojas.
The prosecutor argued that this evidence also showed that defendant had the specific
intent to further criminal gang activity.
         Defendant’s trial counsel argued that the evidence indicated defendant and Rojas
had a friendship “outside” of the conspiracy. He argued that the benefit described by the
prosecutor was “an amorphous one.” He argued that the evidence showed defendant
acted “for his own benefit,” i.e., “to curry favour with a young attractive female,” and
that “the purpose behind that has nothing to do [with] the Hells Angel[s] Motorcycle
Club.”
         The trial court found the gang allegation true, specifying that its finding was based
on “the availability of [the DMV] information generally, to have an intimidating factor
using the information and gaining specific preserved information, confidential
information that is not otherwise noted to promote the objects of the gang.” The trial
court further found that the gang allegation was supported by the fact that defendant had
“another person with him at the meeting,” i.e., “an association type of activity that would
promote the gang and done so with the specific intent to promote the gang.”
         E.     Sentencing
         Defendant filed a request for dismissal of the two strike allegations. (See
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The trial court struck the
prior conviction allegations and sentenced defendant to prison to the upper term of
three years for the conspiracy, with a consecutive four-year upper term for the gang
allegation.2




         2
        The probation report reflects that Rojas was sentenced to a two-year county jail
term and that the charges against Rodriguez were dismissed.

                                               8
                                   III.   DISCUSSION
       Defendant contends there was insufficient evidence to support the trial court’s true
finding on the gang allegation. Defendant challenges four of the trial court’s underlying
findings: (1) that the conspiracy was “committed for the benefit of, at the direction of, or
in association with any criminal street gang” (§ 186.22, subd. (b)(1)); (2) that defendant
acted with “the specific intent to promote, further, or assist in any criminal conduct by
gang members” (ibid.); (3) that one of the gang’s primary activities is the commission of
certain enumerated offenses (id., subds. (e) & (f)); and (4) that the members of the gang
“individually or collectively engage in or have engaged in a pattern of criminal gang
activity” (id., subd. (f)).
       A.      Standard of Review
       “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. [Citation.] We presume every fact in
support of the judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.]” (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)
“ ‘A reasonable inference, however, “may not be based on suspicion alone, or on
imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . .
A finding of fact must be an inference drawn from evidence rather than . . . a mere
speculation as to probabilities without evidence.” ’ [Citations.]” (People v. Rios (2013)
222 Cal.App.4th 542, 564 (Rios).)
       B.      Analysis
       We first address defendant’s claim that the evidence was insufficient to support
the trial court’s finding that defendant acted with “the specific intent to promote, further,
or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).)

                                              9
       Defendant relies on a trio of cases in which the evidence was insufficient to
support a finding that the defendant acted with the requisite specific intent to promote,
further, or assist in criminal conduct by gang members: Rios, supra, 222 Cal.App.4th
542, In re Daniel C. (2011) 195 Cal.App.4th 1350 (Daniel C.), and People v. Ramon
(2009) 175 Cal.App.4th 843 (Ramon).
       In Rios, supra, 222 Cal.App.4th 542, the defendant was convicted of vehicle theft
and carrying a loaded firearm in a vehicle, with gang allegations found true as to both
counts. The defendant had been driving a stolen vehicle by himself, and in the vehicle,
police found a loaded gun and gang indicia. (Id. at pp. 547-548.) This court found
insufficient evidence to support the trial court’s finding that the defendant acted with the
specific intent required by section 186.22, subdivision (b)(1). There was no evidence the
defendant had “acted in concert with other gang members,” no evidence that he had been
directed to steal the vehicle by another gang member, and no evidence that the defendant
was transporting the loaded gun so that a gang member could commit a crime. (Rios,
supra, at p. 572.) Nor did testimony from a gang expert provide substantial evidence
supporting the specific intent element of the gang enhancements. The gang expert had
testified that guns benefit gang members because guns are “status symbols” that can be
shared with other gang members or used to scare people and dissuade witnesses from
testifying. (Id. at p. 553.) This testimony was insufficient to support the specific intent
finding with respect to the carrying a loaded firearm charge because “there was no
evidence that the gun defendant transported was brandished or shown to anyone or used
to intimidate persons in the community.” (Id. at p. 573.) The gang expert had also
testified that a stolen vehicle is often used by gang members to commit crimes so the
vehicle cannot be traced back to the gang member. (Id. at p. 553.) This testimony was
insufficient to support the specific intent finding with respect to the vehicle theft charge
because there was no evidence that the defendant had used the stolen vehicle “to pick up
one or more fleeing gang members,” no evidence “that he intended to use the car to

                                             10
commit another gang crime separate and apart from the vehicle theft,” and no evidence
of “any driveby shootings or attempted driveby shootings that night in Salinas.” (Id. at
p. 574.)
       In Daniel C., the juvenile court found that the minor committed robbery, and it
found true a gang allegation. The minor and some companions—all gang members or
gang affiliates—had been inside a liquor store together, but the minor’s companions had
left the store prior to the minor’s commission of the robbery, which involved assaulting
a store employee with a liquor bottle. (Daniel C., supra, 195 Cal.App.4th at p. 1353.)
On appeal, the Daniel C. court found insufficient evidence to support the specific intent
element of the gang allegation. The court noted that there was no evidence the minor had
“acted in concert with his companions,” since they had left the store prior to the robbery
and did not assist the minor in assaulting the store employee. (Id. at p. 1361.) There was
also no evidence that the minor’s companions “even saw what happened in the store after
they left,” and no evidence that the store employee was aware that the minor or his
companions were gang members or gang affiliates. (Ibid.)
       In Ramon, the defendant was driving a stolen vehicle with a gun under the driver’s
seat. Ramon and his passenger were members of the same gang, and they were in their
gang’s territory when police stopped them. (Ramon, supra, 175 Cal.App.4th at p. 847.)
Ramon was convicted of receiving a stolen vehicle and various firearm offenses, with
gang allegations found true as to all of the offenses. (Id. at p. 846.) At trial, a gang
expert had testified that the crime was committed for the benefit of the defendant’s gang
and that the crime was intended to promote the gang, “because the gun and the stolen
vehicle could be used to facilitate the commission of a crime.” (Id. at p. 849.) The
appellate court reversed the gang allegation, finding that the expert opinion “could not
provide substantial evidence to support the jury’s finding” because “[t]here were no facts
from which the expert could discern whether Ramon and [the passenger] were acting on
their own behalf . . . or were acting on behalf of the [gang].” (Id. at p. 851.) The Ramon

                                              11
court rejected the notion that the specific intent element could be based on the fact that
the defendant was accompanied by another gang member during the commission of the
crimes. (Ibid.)
       In the instant case, there is no evidence that defendant was acting “in concert
with other gang members” when he committed the charged offense. (Rios, supra, 222
Cal.App.4th at p. 572; see also Daniel C., supra, 195 Cal.App.4th at p. 1361.) The
record does not contain any evidence that either Rojas or Rodriguez were members of
the Hells Angels. Although the evidence arguably supported a finding that a member of
the Hells Angels gang drove defendant to a meeting with Rojas, there was no evidence
that any criminal conduct occurred during that meeting, and the driver was not charged as
part of the conspiracy. With respect to the criminal conduct—that is, the transmission of
DMV information—there is no evidence of involvement by any other gang members.
There is no evidence that any other gang members directed defendant to commit the
charged offense and no evidence that defendant committed the charged offense to enable
another gang member to commit a crime. (See Rios, supra, at p. 572.) Indeed, there was
no evidence that the driver or any other gang members knew that defendant was engaged
in the charged criminal conduct. (See Daniel C., supra, at p. 1361.)
       The documents containing the gang experts’ opinions also did not provide
substantial evidence supporting a finding that defendant had the “specific intent to
promote, further, or assist in any criminal conduct by gang members.” (§ 186.22,
subd. (b)(1).) Sergeant Gilbert testified that members of the Hells Angels use
confidential information they obtain from law enforcement in various ways, such as to
conduct background checks on potential members, and that the very access to such
information benefits the gang by dissuading witnesses from coming forward. However,
no evidence in the record supports a finding that defendant intended for the DMV
information he obtained from Rojas during the conspiracy to be used by any other gang
members, and there was no evidence that defendant intended his access to the DMV

                                             12
information to promote, further, or assist criminal conduct by other gang members.
Defendant obtained the DMV information from Rojas at the behest of Rodriguez, who
wanted the DMV information for her own personal purposes. As noted previously, there
was no evidence that Rodriguez was a gang member. In sum, the evidence here was
insufficient to permit the gang experts to “construct an opinion” about defendant’s
specific intent. (Ramon, supra, 175 Cal.App.4th at p. 852.) Their opinions, therefore,
“cannot constitute substantial evidence to support the [trial court’s] finding on the gang
enhancement.” (Ibid.)
       The Attorney General relies on Albillar, supra, 51 Cal.4th 47, in which the
California Supreme Court noted, “[I]f substantial 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.” (Id. at p. 68.) In the present case, even
assuming that the evidence supported a finding that the person who drove defendant to
the meeting with Rojas was a fellow Hells Angels member, there was no evidence that
any criminal conduct occurred during that meeting, and the driver was not charged as part
of the conspiracy. Thus, there was no evidence that defendant acted with the specific
intent to promote, further, or assist any criminal conduct by a gang member. (Compare
ibid. [“there was ample evidence that defendants intended to attack Amanda M., that they
assisted each other in raping her, and that they were each members of the criminal street
gang”].)
       We conclude that there was insufficient evidence to support the trial court’s
finding that defendant acted with “the specific intent to promote, further, or assist in any
criminal conduct by gang members” (§ 186.22, subd. (b)(1)) when he committed the
charged offense. We need not reach defendant’s other arguments concerning the gang
allegation.



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                                 IV.    DISPOSITION
      The judgment is reversed. The trial court is directed to vacate the true finding on
the gang allegation, Penal Code section 186.22, subdivision (b)(1)(A).




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                             ___________________________________________
                             BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MIHARA, J.
